Post on 24-Dec-2015
Busting Common Myths About Employing People With
Disabilities
Presented by Peggy BarnardEmployment Solicitor at Pictons Solicitors LLP
Legal Definition
“....a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.”
Section 6(1) EqA 2010
Legal Definition (cont) “....a physical or mental impairment which has a substantial and
long-term adverse effect on a person’s ability to carry out normal day-to-day activities.”
No need for medical evidence
A person has a “physical impairment” if they have “something wrong with them physically”
“Mental impairment” is intended to cover “ a wide range of impairments relating to mental functioning” – EHRC Code
Legal Definition (cont) “....a physical or mental impairment which has a substantial and
long-term adverse effect on a person’s ability to carry out normal day-to-day activities.”
Substantial = “more than minor or trivial”
Adverse = normal day – to –day meaning
Long Term - has lasted at least 12 months;
- is likely to last 12 months;
- is likely to last the rest of the life of the person.
Legal Definition (cont) “....a physical or mental impairment which has a substantial and
long-term adverse effect on a person’s ability to carry out normal day-to-day activities.”
EqA 2010 Guidance states “...day to day activities are things people do on a regular basis, including:
Shopping Reading Writing TalkingWatching TV Dressing Washing WalkingEating Chores Travelling Socialising
Deemed Disability Potential Disability Excluded
Blindness / Sight impairment
Sensory Impairments
Alcohol / drug addiction
Severe disfigurement
Motor Neurone Disease
Tendency to set fires
Cancer Epilepsy Tendency to steal
HIV Arthritis Tendency to abuse
Multiple Sclerosis Dementia Exhibitionism
Heart Disease Voyeurism
Asthma Tattoos / piercings
Autism Hayfever
Anxiety
DepressionStressDyslexia
Disability?Ben, a 50 year old man has been an alcoholic for 12 years. He regularly turns up for work under the influence of alcohol.
Jan, a 55 year old woman, has advanced stomach cancer. She has been absent from work for 3 months whilst she has chemotherapy.
Mark has been diagnosed with severe depression following the death of his father 2 months ago.
Denise is being teased at work as a result of scars to her face following botched cosmetic surgery
Practical Tips
If in doubt, assume the employee has a disability
Don’t be afraid to ask reasonable questions (more info later)
Written Policies & Procedures - Equality & Diversity - Disability
Disability Discrimination- EqA 2010
Discrimination law covers all areas of employment including:-
Job advertsRecruitment processTerms and conditions of work Conduct during employmentConduct during social events at workDismissal
£££ - Compensation for discrimination is uncapped
Disability Discrimination
Types of disability discrimination under the EqA 2010 :-
1) Direct discrimination2) Discrimination arising from disability3) Indirect discrimination4) Failing to make “reasonable adjustments”5) Harassment6) Victimisation7) Asking inappropriate pre-employment health questions
Direct Discrimination
Treating a job applicant or employee less favourably than others because of disability
(section 13(1), EqA 2010)
No defence“Positive discrimination” allowed
Treating a job applicant or an employee unfavourably because of something arising in consequence of disability.
(section 15(1), EqA 2010)
Defence – objective justificationProportionate means of achieving a legitimate aim
Discrimination Arising from Disability
A applies to B a Provision, Criterion or Practice (PCP).
B has a disability.
A also applies that PCP to people without a disability.
The PCP puts or would put disabled people at a particular disadvantage compared to others.
(section 19, EqA 2010)
Defence – objective justification
Proportionate means of achieving a legitimate aim
Indirect Discrimination
Where a disabled employee is placed at a substantial disadvantage in the workplace as a result of a disability, the employer is under a legal duty to make “reasonable adjustments” to assist the employee. A failure to comply with this duty is a form of discrimination.
(sections 20 & 21,EqA 2010)
Knowledge of disability is required (or constructive knowledge)
Failure to Make Reasonable Adjustments
Harassment
A harasses B if A engages in unwanted conduct related to their disability which has the purpose or effect of either:
Violating B's dignity, or
Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(section 26, EqA 2010)Individual’s can be personally liable
Victimisation
Victimisation occurs where A subjects B to a detriment becauseeither:
B has done a “protected act”.A believes that B has done, or may do, a “protected act”.
“Protected Acts” include bringing proceedings under the EqA 2010, giving evidence at a hearing and alleging that a person has contravened the EqA 2010 ie. by raising an internal grievance.
(section 27(2), EqA 2010)
Which form(s) of discrimination?
Jan is dismissed from her job as a result of having 3 months off work to have chemotherapy
Tony is dyslexic. He is given a written warning for making too many spelling mistakes in his work
Denise is being teased at work as a result of disfigurement to her face following botched cosmetic surgery. Her colleagues are saying that she “looks like the elephant man”
Roger did not get a pay rise because he raised a grievance as a result of his employer refusing to allow him to leave early to attend medical appointments
Discriminatory Job Adverts
RECEPTIONISTThis front of house applicant must have these key skills:
Professional, happy & positive attitudeOrganised, friendly & energetic
High levels of customer careSmart & fashion conscious
Computer literate – able to use “BookFresh” softwareGreat communicator, face to face & telephone
If you think you have these skills and more, please contact xxxxxxx on Tel: xxxxxxxx for details
Practical Tips
Written Policies & Procedures - Equality & Diversity - Grievance & Disciplinary
Training
Take action against discrimination
THINK!
If in doubt, get advice
MYTH 3
An employer cannot ask questions about a potential candidate’s
disability prior to employment
s.60 EqA 2010 provides employers are prohibited from asking potential recruits questions about health, except when:-
Establishing if the applicant will be able to comply with a requirement to undergo an assessment (ie. an interview) and if any reasonable adjustments are required
Establishing if the applicant will be able to carry out a function that is intrinsic to the work concerned
Monitoring diversity
Taking “positive action”
If there is a requirement for the applicant to have a particular disability – to find out if they do
Pre-employment Health Questions
Practical Tips
Written Policies – Equality & Diversity
Be consistent
Ensure you can justify why you are asking the question
If in doubt, get advice
Reasonable Adjustments
Legal obligation is to make “reasonable” adjustments only
What is reasonable will depend on a number of circumstances including the size and resources of the employer.
Adjustment may relate to a PCP, a physical feature of the company’s premises, or the provision of an auxiliary aid.
Statistics show that only 4% of reasonable adjustments made cost anything at all
Potential Adjustments...The ECHR Code gives the following examples:-
Making adjustments to premises
Providing information in accessible formats
Allocating duties to others
Redeployment
Varying hours
Office move
Allowing absence for treatment
Training / Mentoring
Modifying Procedures / Policies
Acquiring or modifying equipment
Practical Tips Written Policies & Procedures - Equal Opportunities
- Disability - Grievance
Speak to the employee
Think outside the box
Why, Why, Why…..? What else….?
Access to Work Scheme
Keep records
If in doubt, get advice
Sickness Absence
Capability = a potentially fair reason for dismissal
Follow a fair capability / ill-health procedure
Have you made all reasonable adjustments?
Obtain medical evidence or Occupational Health report
Practical Tips
Written Policies & Procedures - Capability / Ill-health
Consider case on individual circumstances
Keep records
Consider medical reports carefully
If in doubt, get advice
Performance
Capability = a potentially fair reason for dismissal
Follow a fair capability / ill-health procedure
Have you made all reasonable adjustments?
Obtain medical evidence or Occupational Health report
Practical TipsRemember, a disabled employee is unlikely to apply for a role that
they know they will be unable to fulfill!
Have you asked the right questions in interview?
Written Policies & Procedures - Capability / Performance
Written contract of employment / clear job description
Use probationary periods (albeit with caution!)
Keep records
If in doubt, get advice
Where to get support / advice.....
ACAS - www.acas.org.uk
Access to Work Scheme - 0345 268 8489
The Disability Resources Centre
Government website – www.gov.uk
Pictons Solicitors
1000’s of other local / national charities.....
“Employees who believe that management are concerned about them as a whole person – not just an employee – are more productive, more
satisfied, and more fulfilled. Satisfied employees mean satisfied customers, which
leads to profitability”