As stated in the Equality Act (2010), it is the responsibility of all employers to make reasonable adjustments in the way in which employment is structured, to remove any physical barriers and/or provide additional support for a disabled worker where appropriate.
This sections covers:
- When is an employee considered to have a disability?
- Employer responsibility
- Recruiting disabled employees
- Disability in the workplace
- Managing attendance and dismissal
- Keeping the dialogue open
When is an employee considered to have a disability?
As a starting point, it is important to clarify the legal definition of disability, in line with the best practice used by adjudicating bodies to determine whether or not a person meets that definition. This is often used to form the basis of each organisation’s own definition.
A disabled employee is defined by the Equality Act 2010 as such:
‘The Act generally defines a disabled person as a person with a disability. A person has a disability for the purposes of the Act if he or she has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.’
It is the duty of the employer to make necessary adjustments to enable the disabled person to carry out and succeed in their role. The key is to ensure that the employee isn’t at a disadvantage in terms of access and resources as a result of their disability.
An example of this would be to purchase specialist assistive computer equipment in order to enable a person who is deaf to communicate with those who are on the telephone.
Another reasonable adjustment would be to fit a ramp to an office building in order to enable a member of staff who uses a wheelchair to access the building without issue.
Recruiting disabled employees
When recruiting for a new position within your organisation, it is important to ask whether the candidate considers themselves to have a disability; although this should be asked for the sole purpose of assessing whether any adjustments are required to enable them to partake in the recruitment process.
Your recruitment process should be designed so that you are able to make a shortlisting decision without knowing whether the candidate has a disability.
This is to prevent the candidate from being discriminated against due to their disability, and to protect the recruiting manager from being accused of not shortlisting due to the disability of the candidate. Once the shortlisting decision has been made, only then should you explore the issue of disability with the candidates.
Disability in the workplace
As stated, there is a legal requirement for the employer to make reasonable adjustments in order to allow disabled employees to attend work and perform the duties of their role. However, the provision of these adjustments is also based on economies of scale.
Remember that what one employer can reasonably accommodate can differ to what another can accommodate. For example, a large organisation employing thousand of employees would be expected by law to accommodate a higher level of adjustments than a much smaller business with significantly fewer employees.
If a business is unable to make necessary adjustments, their reasons for this need to be absolutely clear. All businesses should be able to demonstrate that they have started from the basis that you must accommodate the adjustments, and then work back from there.
Absence levels for those who have longstanding conditions can be higher than for colleagues who do not have such a disability. For example, an employee who suffers with ME may suffer from excessive levels of fatigue which prevent him from attending work at the same level as a perfectly healthy colleague.
The question most employers face is how do you manage attendance for those with disabilities?
The law is clear: you must have absence management arrangements for those who have a disability. This should be documented in your long term sickness procedure to ensure that disabled employees are treated with consideration.
If you are looking for more information on the type of disability and what impact that may have on their ability to attend work, an occupational health provider will be able to provide you with this important information. One example of this would be reduced immunity for an individual who has diabetes, so chest infections and abscesses may be more likely and may take the individual longer to overcome.
There may be occasions whereby employees with a disability are absent for such a prolonged period of time that their absence becomes unsustainable for the employer. On these occasions, medical capability should be explored and the employer must be able to demonstrate that they have allowed leniency with absence for the employee with a disability. The employer must also demonstrate that they have explored alternative options to allow the disabled employee to remain in work (e.g.reducing working hours, working days or flexible working).
Employers must be able to demonstrate that any conscious adjustments made have had little to no impact on the employee’s attendance levels, and explain why the business cannot cope with the current level of absence.
In dismissing an employee due to medical capability you will need to demonstrate all of the above, and also that there is no foreseeable improvement in high absence levels; otherwise the dismissal could be considered to be unfair and may result in tribunal.
One common question an investigatory representative is likely to ask is that, if a business can accommodate an employee being unable to work for 12 months due to maternity leave, why can the business not accommodate this level of absence due to disability?
It may be due to the excessive costs associated with covering the absence whilst paying occupational sick pay, or it may be because the high levels of absence have been an issue for a prolonged period of time with no signs of improving.
Keeping the dialogue open
Regardless of the size of the organisation, employers must ensure that they maintain a regular dialogue with the individual about their requirements throughout their employment. In doing this, the business develops a culture whereby the line manager and employee can have confident and assured conversations whilst demonstrating that the business has explored any necessary adjustments to sufficiently accommodate all employees.
It is important to note that some employees may feel uncomfortable having adjustments made specifically for them, and may be embarrassed as a result. Always look to maintain confidentiality where appropriate and ensure that a sensitive approach is demonstrated to all members of staff.