Neil Dwyer gives advice on disability discrimination. ************* Changes in law and society are encouraging and forcing employers to take steps that allow disabled employees to reach their full potential. Legislation policing disability discrimination has been with us for a decade and a review of trends and details is useful. The legislation applies to all employers including "small employers" (those with less than 15 employees) and there is no limit to the amount of compensation which can be awarded against employers, including small employers. When is an employee disabled?
The definition of disability under the anti- discrimination legislation does not tie in with whether somebody is registered disabled. It is a legal concept. Each case will depend on its particular facts. To determine whether an employee is disabled you must ask a number of questions. Does he/she have a physical or mental impairment? If so, does the impairment substantially affect his/her ability to carry out day-to-day activities? If so, has it lasted at least 12 months or is it likely to last at least 12 months? If the answers to all of these questions are yes, then the employee will be classed as disabled. What is discrimination?
An employer "discriminates" when he treats a disabled employee less favourably than he would treat a non-disabled employee and the reason for the treatment is the disability. Therefore discrimination could take place when an employer dismisses a disabled employee because they have been absent or refuses to allow changes (called "reasonable adjustments") to lessen the impact of the disability. What changes must be made for a disabled employee?
An employer must make "reasonable adjustments" where a work practice puts a disabled employee at a disadvantage. Alas, because circumstances vary enormously, it is not possible to provide a complete list of potential changes which should be made. However, some frequent examples include making adjustments to premises or equipment (ramps, new chairs), allocating some duties to another employee, transferring a disabled employee to another job and changing a disabled employee's working hours. Particular problems can arise where a disabled person is indefinitely absent on long-term sick. A ray of comfort for employers is that the courts have decided that the anti-discrimination legislation should not encourage people to stay away from (rather than return to) work. Indefinitely paying salary during such absence is not usually seen as an appropriate "reasonable adjustment". How this applies to a particular case will depend upon any contractual obligation to sick pay and the exercise of any discretion, if payment beyond the contractual obligation is discretionary. What practical steps should be taken by employers? * Ensure that you have a comprehensive equal opportunities policy in place. * The equal opportunities policy should be communicated to all employees. * Relevant training and guidance should be provided to all employees and, most importantly, to managers. * If you suspect that a worker might have a disability then you should make appropriate enquiries and if a "dispute" arises use the Grievance Procedure. * If a worker is disabled consider fully (including full consultation) what changes should be made to comply with the duty to make "reasonable adjustments". * Finally, investigate thoroughly any allegations of discrimination/harassment and take appropriate action. Disability discrimination is a complicated area of law and there is no limit on the damages that can be awarded so mistakes or omissions can be costly. Therefore you should consider taking full legal advice before acting.
Neil Dwyer is a partner in the employment unit of leading law firm Hay & Kilner. For further information and a free review of your policies and procedures contact Neil Dwyer on (0191) 232-8345, email: neil.dwyer@hay-kilner.co.uk or visit www.hay-kilner.co.uk
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