This edition’s FAQ’s looks at some of the trickiest issues that arise when dealing with disabled members of staff.
Q1: I need to recruit a strong, fit individual to deliver goods to my customers. Can I turn down anyone who is physically disabled?
Q2: Can I ask about a candidate’s health before I decide whether to interview him/her?
Q3: Do employees have to tell their employer that they have a disability?
Q4: How do I know if an employee has a disability?
Q5: What is a reasonable adjustment?
Q6: We have an absence management policy that includes trigger points for disciplinary action to be taken. Do we have to ignore absences caused by an individual’s disability?
Q7: One member of staff has had a lot of time off because she is caring for her disabled husband and we are finding it difficult to accommodate this. Can we dismiss her?
Q8: A member of staff is undergoing treatment for cancer and has been signed off sick for six months. She has asked to be paid full pay as a reasonable adjustment and says that if she does not receive this, it is likely to cause her stress and anxiety and may exacerbate her symptoms. Do I have to pay her?
Q9: I only employ three people. Do the laws in respect of disability discrimination apply to small employers?
Q1. I need to recruit a strong, fit individual to deliver goods to my customers. Can I turn down anyone who is physically disabled?
No. You should only reject a disabled candidate if their disability means that they are unable to do the job after reasonable adjustments have been made. There are a wide range of disabilities and you should not make assumptions about what people with disabilities can and cannot do. You are unlikely to be able to justify applying a blanket ban against recruiting anyone who is physically disabled and, if challenged, are at risk of a claim for disability discrimination. You will be expected to take individual circumstances into account. You will only be able to do this by speaking to the candidate to discuss what limitations, if any, their disability places on their ability to do the job and considering whether any reasonable adjustments could be made to facilitate this. You may wish to get specialist advice from a doctor or occupational health professional.
It is often helpful to write a person specification to describe the skills, knowledge, abilities, qualifications, experience and qualities that are considered necessary or desirable in a candidate, in order to perform all the duties in the job description satisfactorily.
Those criteria must not be discriminatory. Including criteria that relate to health, physical fitness or disability, such as asking applicants to demonstrate a good sickness record, may amount to indirect discrimination against disabled people in particular, unless these criteria can be objectively justified by the requirement of the actual job in question.
Including requirements that relate to physical attributes such as strength and fitness may also discriminate against candidates with other protected characteristics, such as age or gender and will be unlawful unless you can objectively justify including them.
Q2. Can I ask about a candidate’s health before I decide whether to interview him/her?
Not usually. There are very limited circumstances in which an employer can ask about the health of job applicants before making a job offer. You can however ask questions to find out if any adjustments need to be made to the recruitment process, for example special access arrangements for an applicant to attend an interview, and/or to find out if the applicant will be able to carry out a function that is intrinsic to the work concerned.
This means that employers should not ask applicants to complete medical questionnaires at an early stage of the recruitment process – and should certainly not be asking occupational health professionals to get involved in assessing an employee’s health or fitness until a job offer has been made.
You can ask health questions once you have made a job offer, but you must take care not to discriminate against an individual once you receive the answers to those questions. You should also make sure that the questions you ask are relevant to the job, which means that you may have to tailor your questionnaire rather than rely on a generic version.
Q3. Do employees have to tell their employer that they have a disability?
No. There is no obligation on an employee or a job applicant to disclose their disability to their employer. Many choose not to, to protect their privacy or because of concerns about how people will react. If an individual has a disability, they are protected under the Equality Act 2010. This makes it unlawful for an employer to treat them less favourably than other employees for any reason connected with their disability. There is also a duty on employers to make reasonable adjustments to ensure disabled workers aren’t seriously disadvantaged when doing their jobs.
Employers are expected to make reasonable enquiries to find out if a member of staff has a disability before taking decisions about that individual. For example, if they tell you that the decline in their performance is due to “stress” or “depression” you will need to find out whether the state of their health will fall within the definition of a ‘disability’. You are likely to need help from a medical professional to decide this. To get a good medical opinion, you need to ask specific practical questions about the impact of the employee’s impairment on her/his daily activities, not just a blanket enquiry as to whether s/he is covered by the disability legislation.
Q4. How do I know if an employee has a disability?
Not all illnesses are disabilities. The Equality Act 2010 defines a disability as an impairment that has a long term and substantial adverse effect on a person’s ability to undertake normal day to day activities. Long term means that it must be expected to last for 12 months or more. A disability can be either a physical or mental health condition. This requirement ensures that temporary or short-term conditions do not attract protection, even if they are severe and very disabling while they last, such as acute reactive depression, a strained back or a broken arm/leg.
Conversely, some conditions are deemed to be disabilities even if they do not meet the other strands of the test. These include cancer, MS, severe disfigurements and blindness.
‘Day to day activities’ has been given a very wide meaning by courts and tribunals and will include some things that you would expect such as being able to get dressed etc, but also others that are less obvious. For example, sitting exams has been held to be a day to day activity as has lifting heavy objects. Most employers therefore assume that if the condition is long term and has some impact on the individual’s life, that it will meet this test and it is probably safer to do this as the tribunals are not keen on highly technical arguments about what is/isn’t a day to day activity.
An employee will not necessarily understand that their condition constitutes a disability. You will be expected to find out more about their illness or condition so that you can determine if they have a disability. You may therefore need to seek advice from an occupational health advisor, or from a doctor or specialist.
Q5. What is a reasonable adjustment?
Disability discrimination laws place an active duty on employers to make reasonable adjustments to accommodate the needs of disabled employees. This duty arises at any time before, during or after the employment relationship when the employer puts a disabled person at a substantial disadvantage in comparison with individuals who are not disabled.
It applies where a ‘provision, criterion or practice’ (such as a workplace policy) or physical feature (such as steep stairs) puts a disabled person at a substantial disadvantage. You must ignore the effects of any aid the person uses to determine this, such as the use of a walking stick etc.
The EHRC Employment Statutory Code of Practice contains a non-exhaustive list of potential adjustments that employers might be required to make including widening a doorway, providing a ramp or moving furniture for a wheelchair user; providing information in accessible formats such as producing instructions and manuals in Braille or on audio tape; and allocating some of a disabled person's duties to another person, allowing them to work flexibly, or from home.
You are under an active duty to consider making adjustments to enable a disabled person to return, or to work or stay in work. An adjustment will only be reasonable if it makes a difference (even if it does not remove all of the difficulties) and it must help the employee get back to work (not ease hardship when off sick).
The cost of the adjustment is not the most important factor but can be taken into account. If the costs are excessive you may be justified in refusing to make the adjustment, particularly if you are a small employer or have limited resources. This will be judged by reference to your financial resources and even large organisations are not expected to have limitless amounts of money. It is a good idea to contact Access to Work, a Government funded organisation that pays for practical support for disabled people in the workplace to find out what assistance is available, before refusing to make an adjustment on the grounds of cost. Details are available here.
Q6. We have an absence management policy that includes trigger points for disciplinary action to be taken. Do we have to ignore absences caused by an individual’s disability?
No, but you must treat disability related absences with care. You are entitled to manage ill health and absence within the workplace and a disabled employee cannot expect to be removed entirely from the scope of your absence management policy. Some policies already include provision to offset disadvantage to those members of staff with a disability. If yours doesn’t you should consider what adjustments you can make which might, for example, include extending the trigger points and allowing more absences before you start taking action.
Even if adjustments are made, the level of a disabled employee's absence may reach the point where dismissal on the ground of capability is a reasonable course for you to take.
This is a particularly tricky issue and one where you should take advice.
Q7. One member of staff has had a lot of time off because she is caring for her disabled husband and we are finding it difficult to accommodate this. Can we dismiss her?
The definition of disability in the Equality Act is wide enough to cover those who are caring for disabled people. Provided your employee’s husband satisfies the definition of disability (see answer to Q4 for more information on this), your employee will be protected from direct discrimination. This is because the law protects those who face discrimination because they associate with someone who has a disability – they do not need to be disabled themselves.
This means that if you simply dismiss this member of staff because she has taken time off to care for her husband, it is likely that she will be able to bring a claim against you for direct discrimination and, providing she has at least 2 years’ service, unfair dismissal.
This does not mean that you have to ignore all of her absences. The duty to make reasonable adjustments does not apply to making adjustments for an employee who has responsibility as a carer for someone who is disabled. You are, therefore, entitled to treat this employee in the same way as you would treat any other employee who has time off work. Generally, you will be expected to issue a series of “warnings” before dismissing because of the employee’s poor attendance.
Before embarking on this course of action, it might be helpful to have a discussion with the employee about this problem. You should explain why her absences are causing difficulties for the business and try and find out if there is a “pattern” to her husband’s illness that might make planning for her absences easier to accommodate. If appropriate, you could also suggest that your employee considers making an application for flexible working which might give her more freedom to combine her caring obligations with her work.
You are also required to allow staff to take time off to deal with an emergency involving a dependant such as a spouse. Examples of unplanned emergencies include the illness of a dependant, or where their usual carer has failed to arrive for work. However, this right is limited to providing emergency cover and does not extend to allowing the staff member to take time off to look after the dependant for the duration of their illness. In most cases, a day or two should be sufficient to find someone else to provide the cover.
Q8. A member of staff is undergoing treatment for cancer and has been signed off sick for six months. She has asked to be paid full pay as a reasonable adjustment and says that if she does not receive this, it is likely to cause her stress and anxiety and may exacerbate her systems. Do I have to pay her?
Cancer is deemed to be a disability from the point of diagnosis. This employee is therefore disabled and you do have to consider whether there are any reasonable adjustments that can be made to enable him/her to return to work.
You are not, however, expected to extend sick pay beyond the limits of your policy and in effect, keep paying a disabled work when they are sick. This is because the object of a reasonable adjustment must be to get the individual back to work and not to make them more comfortable when they are recuperating. That is the case even if lack of money is causing the employee stress or anxiety.
Q9. I only employ three people. Do the laws in respect of disability discrimination apply to small employers?
Yes. The laws about disability discrimination are contained in the Equality Act 2010 and these apply to all employers, both large and small. There are no exemptions for very small businesses.
Employment Law Update - June 2016