Disabilityby Kate Russell
Tips to avoid disability discrimination claims
The key to avoiding problems is to keep an open mind, make informed decisions, to not make sarcastic or inappropriate comments and to consult the employee.
Explore concerns with the employee in a timely way
When you are aware that an employee has or may have a disability, discuss it with him at an early stage. Don’t ignore it for fear that you may upset him; it is a necessary process to have to find out how you can help to support him.
It will probably be helpful to talk to the employee about what the real effects of the disability might be or what might help. Ensure that these are open, positive discussions and are not conducted in a way which would itself give the disabled person the reason to conclude that he was being discriminated against.
Discuss what help can reasonably be offered and try it out. Don’t ignore or refuse to try out the option unless it is really inappropriate. In a number of cases where an employer has taken medical advice, the doctor has made a suggestion for reasonable adjustments and the employer has ignored it. In consequence the employee has been able to successfully argue that the employer has failed to make reasonable adjustments.
What is reasonable will be fact-dependent. If an employee has a bad back and works in an office it may be a fairly simple matter to limit any bending or lifting, arrange for a standing desk, and/ or have particular seating and/or allow him time to do stretching exercises during the course of the day. Making arrangements for an employee with a similar condition but who is a long distance HGV driver may well be considerably more difficult.
Consider whether expert advice is needed
It is possible to avoid discrimination using personal, or in-house, knowledge and expertise, particularly if the views of the disabled person are sought. Employers are not expected to have detailed knowledge on disabilities but are expected, where appropriate, to obtain expert medical opinion.
The act does not oblige anyone to get expert advice, but it could help in some circumstances to seek independent advice on the extent of a disabled person’s capabilities. This might be particularly appropriate where a person is newly disabled or the effects of someone’s disability become more marked. It may also help to get advice on what might be done to change premises or working arrangements, especially if discussions with the disabled person do not lead to a satisfactory solution. See Want to know more? for information about getting advice or help.
Although the act does not require an employer to make changes in anticipation of ever having a disabled applicant or employee, nevertheless when planning for change it could be cost-effective to consider the needs of a range of possible future disabled employees and applicants. There may be helpful improvements that could be built into plans. For example, a new telecommunications system might be made accessible to deaf people, even if there are currently no deaf employees.
Codes of practice
The Government and the Commission for Equality and Human Rights have produced a number of codes of practice, explaining legal rights and requirements. These codes are practical guidance – particularly for disabled people, employers, service providers and education institutions – rather than definitive statements of the law. However, courts and tribunals must take them into account.