Disability

by Kate Russell

Common questions

  1. How do I know if someone has a disability?
  2. What if someone’s got a condition but he’s taking medication so that the effects aren’t apparent?
  3. What’s a reasonable adjustment?
  4. Can an employer include a question on an application form asking whether someone is disabled?
  5. Can I ask about a disability?
  6. Does the act prevent employers carrying out aptitude or other tests in the recruitment process?
  7. Can an employer insist on a disabled person having a medical examination?
  8. Do I have to appoint someone just because he’s got a disability?
  9. What is associative discrimination?

 

1. How do I know if someone has a disability?

The definition of a disability under the Equality Act 2010 is ‘a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day-to-day activities.’

Only a person who satisfies all the above criteria will have a disability, although there are some excluded conditions.

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2. What if someone’s got a condition but he’s taking medication so that the effects aren’t apparent?

Where the disabled person is having treatment or correction, you must consider what effect the impairment would have on the employee if he was not being treated (you’ll probably need medical advice to determine this). The treatment or correction measures which are to be disregarded encompass medical treatment, including counselling and the use of a prosthesis or other aid.

This rule applies even if the measures result in the effects being completely under control or not at all apparent.

The exception to this is visual impairments that are capable of being corrected by spectacles or contact lenses.

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3. What’s a reasonable adjustment?

As an employer, you are under a specific duty to make reasonable adjustments to accommodate the needs of a disabled employee. A reasonable adjustment is any step or steps that you can reasonably take to ensure that existing workplace arrangements don’t put the disabled person at a disadvantage in comparison with a non-disabled person.

Examples include:

  • Change of hours
  • Change of place of work
  • Reallocation of part of duties
  • Transfer to another job
  • Training
  • Supply or modification of equipment

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4. Can an employer include a question on an application form asking whether someone is disabled?

In most cases you cannot do so. The Equality Act introduced new provisions to limit how far employers can ask about an applicant’s health or disability. The new provision applies to enquiries in the application form or a medical questionnaire, as well as questions at the interview itself. The provision applies to any enquiries made before an offer of employment, conditional or unconditional. Enquiries before this time are banned unless they are necessary for a permitted purpose.

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5. Can I ask about a disability?

The act does not prohibit an employer from seeking information about a disability, but an employer must not use it to discriminate against a disabled person. An employer should ask only about a disability if it is, or may be, relevant to the person’s ability to do the job – after a reasonable adjustment, if necessary. Asking about the effects of a disability might be important in deciding what adjustments ought to be made. The employer should avoid discriminatory questions.

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6. Does the act prevent employers carrying out aptitude or other tests in the recruitment process?

Testing is acceptable but it must not be discriminatory in content or application. Routine testing of all candidates may still discriminate against particular individuals or substantially disadvantage them. If so, the employer would need to revise the tests – or the way the results of such tests are assessed – to take account of specific disabled candidates, except where the nature and form of the test are necessary to assess a matter relevant to the job. It may, for instance, be a reasonable adjustment to accept a lower ‘pass rate’ for a person whose disability inhibits performance in such a test. The extent to which this is required would depend on how closely the test is related to the job in question and what adjustments the employer might have to make if the applicant were given the job.

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7. Can an employer insist on a disabled person having a medical examination?

An employer can make the passing of a medical part of the selection criteria. However, if an employer insists on a medical check for a disabled person and not others, without justification, he will probably be discriminating unlawfully. The fact that a person has a disability is unlikely in itself to justify singling out that person to have a health check, although such action might be justified in relation to some jobs.

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8. Do I have to appoint someone just because he’s got a disability?

An employer must not discriminate against a disabled candidate, but there is no requirement (aside from reasonable adjustment) to treat a disabled person more favourably than he treats or would treat others. An employer will have to assess an applicant’s merits as they would be if any reasonable adjustments required under the act had been made. If, after allowing for those adjustments, a disabled person would not be the best person for the job, the employer would not have to recruit that person.

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9. What is associative discrimination?

The Equality Act provides rights for people not to be directly discriminated against or harassed because they have an association with a disabled person. This can apply to a carer or parent of a disabled person.

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