Disability

A person with a disability has two rights: not to be discriminated against and to have reasonable adjustments made in the workplace or conditions of work.

A disability is defined as a physical or mental impairment which has a substantial and long-term effect on a person’s ability to carry out normal day-to-day activities. Long-term is defined as meaning it will have lasted for, or is likely to last for, at least 12 months or the rest of the person’s life. Under most circumstances, if a person has had the disability in the past they will still be considered to have the protected characteristic of disability even if they no longer have the impairment. Physical or mental impairment includes sensory impairments, severe disfigurement, cancer, HIV infection and multiple sclerosis (from the point of diagnosis), and ‘hidden’ conditions such as mental illness and epilepsy. With the exception of sight impairment corrected by glasses or contact lenses, the impairment is looked at before treatment.

An EAT decision in January 2015 indicates that type two diabetes controlled by diet is not a disability. The judge also indicated that other conditions that are controlled by diet, such as allergies and intolerances are also not disabilities. Conditions arising from substance abuse and those such as pyromania or kleptomania are not included. In December 2014 the EJC ruled that although being obese is not in itself a disability, its effects – e.g. reduced mobility – may mean a person is disabled; therefore, each case is likely to depend on its facts. In the first UK case to follow the ECJ ruling, in February 2015, a Northern Ireland tribunal found that an obese employee had been the victim of harassment on the grounds of disability.

Reasonable adjustments

Examples of reasonable adjustments include: physical changes to the building or workstations; adaptations to equipment; arrangements such as working from home and travelling outside busy periods, or a support worker to help with elements of the role the person is not able to fulfil as a result of their disability. The financial resources of the ! employer are taken into account when considering the fairness of an adjustment – the courts have accepted that even for large organisations budgets are not limitless – and length of service is also considered. Under certain circumstances some government funding through the Access to Work fund (which is administered by the DWP) is available to cover the cost of some of the above mentioned adjustments. It may not be necessary to make adjustments for a temporary worker on a two-week assignment, although this will have to be decided on a case-by-case basis. The purpose of reasonable adjustments is to enable people to take a full part in the world of work, not to compensate them for not being able to do so. In addition, there is no need to provide more favourable terms for disabled people leaving employment.

The Equality Act provides protection for discrimination arising from a disability. An example would be to treat someone suffering from dyslexia less favourably because they have difficulty spelling. This only applies if the employer is aware of, or could be reasonably expected to know about, the complainant’s disability. Equally, this type of discrimination could be justified if it is a proportional means of achieving a legitimate aim.

Including a question about how many days a person has taken off sick on your application form or in interview is illegal under the Equality Act. However, there are certain times when you can ask health-related questions:

• to establish whether the applicant can take part in an assessment to determine their suitability for the job

• to determine whether any reasonable adjustments need to be made to enable a disabled person to participate in an assessment during the recruitment process (you cannot ask whether reasonable adjustments need to be made to enable the candidate to do the job itself until an offer has been made)

• to determine whether a candidate would be able to undertake a function that is intrinsic to the job, e.g. lifting

• to monitor diversity among job applicants (this should be done on a separate, anonymous form)

• if there is an occupational requirement for the person to be disabled

• to promote positive action (see page 57 for more details about the extent of positive action)

• it is also permissible to ask health-related questions for national security vetting.

Once a job offer has been made, the prospective employer is allowed to ask health-related questions and they are also able to ask questions to determine whether any reasonable adjustments need to be made so the candidate can do the job. The employer must still be careful not to discriminate once these questions have been answered.

In cases where existing employees are required to go through a competitive interview process to determine redundancy, the Employment Appeal Tribunal has found it may not be a breach of the duty to make reasonable adjustments to insist a disabled employee takes part. However, whether there is a breach or not will depend ‘on the particular circumstances of each case’ (Wade v Sheffield Hallam University). For instance, in a case where there is an unchanged role and it would be detrimental to the person with a disability to ask them to go through the process it may be a breach of the duty to expect them to do so; but in a case where the role has changed it might not be a breach. Randstad advises seeking specialist advice when planning to undertake a competitive interview process.