While legislation against discrimination on the grounds of disability has existed for many years and is a broadly well-understood concept, employers often struggle to ensure they are on the right side of the law with regard to such matters as when protection is engaged, and what accommodations are required of them. Many firms are also unsure about the extent of their duty to make reasonable adjustments for disabled employees.
The Equality Act 2010 defines disability in a broad sense, encompassing both physical and mental impairments. However, employers are still frequently uncertain as to what constitutes “disability”, especially when employees may be absent from work for extended periods due to such conditions as stress or work-related stress, which may sometimes be a symptom of a disability of which the employer is unaware.
The question of whether an employee is “disabled” as far as the 2010 Act is concerned, then, often hinges on whether there is a sufficiently long-term impact on the worker’s normal day-to-day activities. It is not always immediately clear, even to well-placed observers, whether a given employee could be said to be suffering from short-term stress or long-term mental impairment.
What categories of protection should employers be especially mindful of?
Two protection categories are particular to disability: the prohibition on discrimination arising from disability, as laid out in section 15 of the 2010 Act, and the duty to make reasonable adjustments, as sections 20 and 21 of the same Act explain.
Employers have far-reaching obligations as a result of these aspects of the law, the aim being to prevent employees with disabilities from being disadvantaged at work.
Discrimination arising from disability can be defined as a situation in which an employer treats someone unfavourably because of something that arises as a result of their disability, and the employer is unable to show that the treatment represents a proportionate means of achieving a legitimate aim. The employer may be liable even if they were not aware that the disability caused the “something” that prompted them to treat the employee unfavourably.
Employers are able to defend a complaint of discrimination arising from disability under section 15 by showing that they genuinely did not know, and could not have been reasonably expected to know, of the disability of their employee.
It is the employer’s knowledge at the time of the supposed unfavourable treatment that is assessed. Employers may not realise, however, that knowledge gained during the course of an appeal will still be pertinent to determining whether a dismissal was discriminatory.
Do employers accused of disability discrimination have any other options?
Another option that employers have, is objectively justifying the alleged discrimination arising from the employee’s disability. In practice, it tends to be the case that employers can identify a legitimate aim, but struggle to demonstrate that the means of achieving this aim were appropriate and reasonably necessary.
The employer’s aims must naturally be considered alongside the discriminatory effect on the given employee, including whether the employer could have taken a less discriminatory approach to achieving their aims.
The employer’s duty to make reasonable adjustments includes taking positive steps to ameliorate the disadvantages that a disabled employee may face in the workplace. This encompasses the premises’ physical features, a failure to provide auxiliary aids, and any provision, criterion or practice (PCP) that puts a disabled employee at a substantial disadvantage compared to non-disabled employees. “Substantial”, in this context, means more than minor or trivial.
It is this PCP element that is often especially challenging for employers, as it covers aspects of working arrangements that aren’t as tangible as physical barriers. To ensure their compliance with the duty, employers will need to listen to their staff, in addition to seeking the guidance of occupational health advisers.
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