Busting Common Myths About Employing People With

Disabilities

Presented by Peggy BarnardEmployment Solicitor at Pictons Solicitors LLP

MYTH 1

The Definition of “Disability”

Legal Definition

“....a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.”

Section 6(1) EqA 2010

Legal Definition (cont) “....a physical or mental impairment which has a substantial and

long-term adverse effect on a person’s ability to carry out normal day-to-day activities.”

No need for medical evidence

A person has a “physical impairment” if they have “something wrong with them physically”

“Mental impairment” is intended to cover “ a wide range of impairments relating to mental functioning” – EHRC Code

Legal Definition (cont) “....a physical or mental impairment which has a substantial and

long-term adverse effect on a person’s ability to carry out normal day-to-day activities.”

Substantial = “more than minor or trivial”

Adverse = normal day – to –day meaning

Long Term - has lasted at least 12 months;

- is likely to last 12 months;

- is likely to last the rest of the life of the person.

Legal Definition (cont) “....a physical or mental impairment which has a substantial and

long-term adverse effect on a person’s ability to carry out normal day-to-day activities.”

EqA 2010 Guidance states “...day to day activities are things people do on a regular basis, including:

Shopping Reading Writing TalkingWatching TV Dressing Washing WalkingEating Chores Travelling Socialising

Deemed Disability Potential Disability Excluded

Blindness / Sight impairment

Sensory Impairments

Alcohol / drug addiction

Severe disfigurement

Motor Neurone Disease

Tendency to set fires

Cancer Epilepsy Tendency to steal

HIV Arthritis Tendency to abuse

Multiple Sclerosis Dementia Exhibitionism

Heart Disease Voyeurism

Asthma Tattoos / piercings

Autism Hayfever

Anxiety

DepressionStressDyslexia

Disability?Ben, a 50 year old man has been an alcoholic for 12 years. He regularly turns up for work under the influence of alcohol.

Jan, a 55 year old woman, has advanced stomach cancer. She has been absent from work for 3 months whilst she has chemotherapy.

Mark has been diagnosed with severe depression following the death of his father 2 months ago.

Denise is being teased at work as a result of scars to her face following botched cosmetic surgery

Practical Tips

If in doubt, assume the employee has a disability

Don’t be afraid to ask reasonable questions (more info later)

Written Policies & Procedures - Equality & Diversity - Disability

MYTH 2

High risk of being sued for disability discrimination and increased

insurance premiums

Disability Discrimination- EqA 2010

Discrimination law covers all areas of employment including:-

Job advertsRecruitment processTerms and conditions of work Conduct during employmentConduct during social events at workDismissal

£££ - Compensation for discrimination is uncapped

Disability Discrimination

Types of disability discrimination under the EqA 2010 :-

1) Direct discrimination2) Discrimination arising from disability3) Indirect discrimination4) Failing to make “reasonable adjustments”5) Harassment6) Victimisation7) Asking inappropriate pre-employment health questions

Direct Discrimination

Treating a job applicant or employee less favourably than others because of disability

(section 13(1), EqA 2010)

No defence“Positive discrimination” allowed

Treating a job applicant or an employee unfavourably because of something arising in consequence of disability.

(section 15(1), EqA 2010)

Defence – objective justificationProportionate means of achieving a legitimate aim

Discrimination Arising from Disability

A applies to B a Provision, Criterion or Practice (PCP).

B has a disability.

A also applies that PCP to people without a disability.

The PCP puts or would put disabled people at a particular disadvantage compared to others.

(section 19, EqA 2010)

Defence – objective justification

Proportionate means of achieving a legitimate aim

Indirect Discrimination

Where a disabled employee is placed at a substantial disadvantage in the workplace as a result of a disability, the employer is under a legal duty to make “reasonable adjustments” to assist the employee. A failure to comply with this duty is a form of discrimination.

(sections 20 & 21,EqA 2010)

Knowledge of disability is required (or constructive knowledge)

Failure to Make Reasonable Adjustments

Harassment

A harasses B if A engages in unwanted conduct related to their disability which has the purpose or effect of either:

Violating B's dignity, or

Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(section 26, EqA 2010)Individual’s can be personally liable

Victimisation

Victimisation occurs where A subjects B to a detriment becauseeither:

B has done a “protected act”.A believes that B has done, or may do, a “protected act”.

“Protected Acts” include bringing proceedings under the EqA 2010, giving evidence at a hearing and alleging that a person has contravened the EqA 2010 ie. by raising an internal grievance.

(section 27(2), EqA 2010)

Which form(s) of discrimination?

Jan is dismissed from her job as a result of having 3 months off work to have chemotherapy

Tony is dyslexic. He is given a written warning for making too many spelling mistakes in his work

Denise is being teased at work as a result of disfigurement to her face following botched cosmetic surgery. Her colleagues are saying that she “looks like the elephant man”

Roger did not get a pay rise because he raised a grievance as a result of his employer refusing to allow him to leave early to attend medical appointments

Discrimination in Recruitment

Discriminatory Job Adverts

RECEPTIONISTThis front of house applicant must have these key skills:

Professional, happy & positive attitudeOrganised, friendly & energetic

High levels of customer careSmart & fashion conscious

Computer literate – able to use “BookFresh” softwareGreat communicator, face to face & telephone

If you think you have these skills and more, please contact xxxxxxx on Tel: xxxxxxxx for details

Practical Tips

Written Policies & Procedures - Equality & Diversity - Grievance & Disciplinary

Training

Take action against discrimination

THINK!

If in doubt, get advice

MYTH 3

An employer cannot ask questions about a potential candidate’s

disability prior to employment

s.60 EqA 2010 provides employers are prohibited from asking potential recruits questions about health, except when:-

Establishing if the applicant will be able to comply with a requirement to undergo an assessment (ie. an interview) and if any reasonable adjustments are required

Establishing if the applicant will be able to carry out a function that is intrinsic to the work concerned

Monitoring diversity

Taking “positive action”

If there is a requirement for the applicant to have a particular disability – to find out if they do

Pre-employment Health Questions

Practical Tips

Written Policies – Equality & Diversity

Be consistent

Ensure you can justify why you are asking the question

If in doubt, get advice

MYTH 4

It will be too expensive to make the necessary adjustment s

Reasonable Adjustments

Legal obligation is to make “reasonable” adjustments only

What is reasonable will depend on a number of circumstances including the size and resources of the employer.

Adjustment may relate to a PCP, a physical feature of the company’s premises, or the provision of an auxiliary aid.

Statistics show that only 4% of reasonable adjustments made cost anything at all

Potential Adjustments...The ECHR Code gives the following examples:-

Making adjustments to premises

Providing information in accessible formats

Allocating duties to others

Redeployment

Varying hours

Office move

Allowing absence for treatment

Training / Mentoring

Modifying Procedures / Policies

Acquiring or modifying equipment

Practical Tips Written Policies & Procedures - Equal Opportunities

- Disability - Grievance

Speak to the employee

Think outside the box

Why, Why, Why…..? What else….?

Access to Work Scheme

Keep records

If in doubt, get advice

MYTH 5A disabled employee will take too

much sick leave

Sickness Absence

Capability = a potentially fair reason for dismissal

Follow a fair capability / ill-health procedure

Have you made all reasonable adjustments?

Obtain medical evidence or Occupational Health report

Practical Tips

Written Policies & Procedures - Capability / Ill-health

Consider case on individual circumstances

Keep records

Consider medical reports carefully

If in doubt, get advice

MYTH 6

Disabled employees will not be able to meet the expected performance

standards of the role

Performance

Capability = a potentially fair reason for dismissal

Follow a fair capability / ill-health procedure

Have you made all reasonable adjustments?

Obtain medical evidence or Occupational Health report

Practical TipsRemember, a disabled employee is unlikely to apply for a role that

they know they will be unable to fulfill!

Have you asked the right questions in interview?

Written Policies & Procedures - Capability / Performance

Written contract of employment / clear job description

Use probationary periods (albeit with caution!)

Keep records

If in doubt, get advice

Where to get support / advice.....

ACAS - www.acas.org.uk

Access to Work Scheme - 0345 268 8489

The Disability Resources Centre

Government website – www.gov.uk

Pictons Solicitors

1000’s of other local / national charities.....

“Employees who believe that management are concerned about them as a whole person – not just an employee – are more productive, more

satisfied, and more fulfilled. Satisfied employees mean satisfied customers, which

leads to profitability”

Peggy BarnardEmployment Solicitor

Pictons Solicitors LLP28 Dunstable Road,

Luton, Beds, LU1 1DY

T:01582 878506E: peggy.barnard@pictons.co.uk

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/Pictons

@ pictons