What you need to know about disability at work
Updated: Dec 31, 2020
What is the definition of disability under employment law?
Firstly, it’s not the same as the medical definition of disability.
The employment law definition of disability can be found under Section 6 of the Equality Act 2010 and reads:
‘A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities’.
Let’s break this down:
The person must have an impairment that is either physical or mental;
The impairment must have an adverse effect on their ability to carry out normal day to day activities;
The adverse effect must be substantial; and
The substantial adverse effect must be long-term.
Mental or physical impairment is given its ordinary meaning, so, for example, a mental impairment could be post-traumatic stress disorder and a physical impairment, heart disease.
Next, what is a substantial effect? Somewhat counter-intuitively, it is an effect which is “more than minor or trivial”. How do we decide then if the effect is substantial? Factors to be considered are how long it takes an individual to carry out an activity and whether that activity is made more difficult. When considering the effect of an impairment, you also need to discount any treatment or correction they are utilising. For example, if a person has diabetes which is controlled by medication, you need to consider the effects of their condition without that medication.
Long-term means that the impairment has lasted at least 12 months or is likely to last at least 12 months (recurring impairments can be included within this).
Finally, let’s look at what is meant by day-to-day activities. These are things that people do on a regular or daily basis, for example, having a conversation, reading a book, following the soaps, catching a bus, travelling in rush hour, following simple instructions or carrying out household tasks.
We should add that there are some impairments that are automatically deemed disabilities. These are cancer, HIV and multiple sclerosis. There are also some conditions that are expressly excluded, for example alcohol addiction, a tendency to steal and exhibitionism.
Ultimately, the question of whether someone is disabled or not, in an employment context, is decided by an Employment Tribunal panel on reviewing medical and witness evidence; however, the above sets out the factors that an Employment Tribunal will consider in reaching that decision so it is important, as an employer, to be aware of these.
So how will you know if a member of staff is potentially disabled?
Staff may expressly disclose that they have a disability to you. This could be during the course of their employment or just after they’ve joined you, for example when filling out a health declaration form.
However, some staff may not think of themselves as disabled and knowledge for the purposes of disability law includes actual knowledge (expressly being aware that an employee is disabled) or constructive knowledge. By constructive knowledge we are referring to whether an employer should have known, considering the circumstances of that particular employee, that the employee was disabled. For example, an employer could be held to have constructive knowledge that an employee had work-related stress if their employer was aware that they were having frequent absences relating to it and were clearly stressed in the workplace.
What duties does an employer have towards disabled staff?
Disability is one of the nine characteristics protected by the Equality Act 2010. This means that disabled staff (including applicants) are protected from discrimination. In summary, they should not be treated less favourably because of their disability; treated unfavourably because of something arising in consequence of their disability; indirectly disadvantaged; harassed or victimised. There is also a duty to make reasonable adjustments (we talk more about this below).
The phrase vicariously liable often makes an employer’s hairs stand on end so let’s talk about this briefly in relation to disability law. The concept of vicarious liability essentially means that anything done by an employee in the course of their employment, is treated as also having been done by the employer (regardless of whether that employee’s acts were done with the employer’s knowledge or approval). As you can imagine, this often occurs in the field of disability law, for example by a member of your staff harassing a disabled team member. Before you despair, there is a defence available – an employer must show that it took “all reasonable steps” to stop the discrimination occurring.
Every employer will have heard that they need an equality and diversity/equal opportunities policy. Yes, it promotes the message that you value equality and diversity; however, its also a valuable tool in your arsenal against vicarious liability. More so if you train your staff on the contents of that policy and take a proactive stance against discrimination. As a reminder, there is a no limit on the compensation that can be awarded by an Employment Tribunal in respect of disability discrimination (often including a substantial award in respect of damages for injury to the employee’s feelings).
Let’s talk about reasonable adjustments
The Equality Act imposes a duty on employers to make reasonable adjustments to help applicants and staff. This duty arises when a disabled person is placed at a disadvantage by an employer’s policies or rules (including one-off decisions), a physical feature of an employer’s premises or an employer’s failure to provide an auxiliary aid.
If you’re reading closely, you will note that the duty is to make reasonable adjustments only. Factors to be taken into account when considering whether an adjustment is reasonable include the extent to which the adjustment would ameliorate the disadvantage and the financial and other resources available to an employer.
What should an employer do if it suspects an employee may be classed as disabled?
Whilst some disabilities are more obvious, others may be invisible (such as depression). If in doubt as to an individual’s impairment/the effects of that impairment or what adjustments should be made, employers should always consult with a staff member’s GP and obtain a medical report, or, alternatively, refer an employee to Occupational Health so that as clear a picture as possible can be gathered in terms of the impairment and support that might be needed; pretending to not notice an employee’s potential requirement for additional support is not going to help anyone and certainly won’t form a successful defence at an Employment Tribunal.
Are you compliant with the law?
If you’re not sure or you have doubts, then our Employment team is here to help you. Our team of experienced and helpful lawyers will make suggestions, recommendations and put together policies for you. We’ll also help with advice on how to put these all into practice.
‘Nash & Co Solicitors' Employment team are very personable and professional. They have a very calm and relaxed approach to their cases, yet their attention to detail is excellent and their case preparation is always very thorough.‘ – Legal 500