All employers, bar the armed forces, have a legal duty not to discriminate against employees or job applicants on the grounds of disability. This has been the case since October 2004 (prior to this, small organisations, the police, prison and fire services were excluded).
The relevant legislation is the Disability Discrimination Act 1995, commonly shortened to ‘the DDA’.
This legislation means that, as an employer, you are legally responsible for ensuring discrimination does not occur in the workplace. You have a duty to make reasonable adjustments for people with disabilities, and you must not treat disabled people less favourably for a reason related to their disability without justification. Similarly, you must ensure disabled people are treated equally with non-disabled people during recruitment, promotion or career development, dismissal and redundancy procedures. If you fail to do any of these things, you may be brought before an employment tribunal and found to have discriminated on the grounds of disability.
From a business point of view, it makes sense to hire the best person for the job. The DDA ensures that this is the case. Having disabled people in the recruitment pool ensures more choice, while employing or retaining disabled people improves staff morale and overall commitment to work. Many adjustments to the workplace are inexpensive and straightforward to implement.
The DDA definition of a disabled person is as follows: "A physical or mental impairment which has a substantial and long-term adverse effect on the person's ability to carry out normal day-to-day activities."
The definition is intended to be widely interpreted, and the tribunals have identified a wide range of physical and mental conditions as coming within its scope. What is considered to be a disability may change as more cases are brought before the tribunals.
The disability must be “substantial”, “adverse” and “long-term”. The following are counted as disabilities:
Therefore, mild depression may not amount to a disability, whereas more debilitating and long-term depression may be covered by the DDA. The test is subjective.
According to the Citizens Advice Bureau, the following are not currently counted as a disability: hay fever; certain personality disorders such as voyeurism, exhibitionism or a tendency to steal, set fires or physically or sexually abuse other people; tattoos and body piercing; and addiction to alcohol, nicotine or any other substance that has not been prescribed by a doctor. However, damage to health caused by the addiction may be considered a disability.
For more information about what counts as a disability, visit the website of the Equality and Human Rights Commission, www.equalityhumanrights.com. The Commission runs a helpline at 0845 604 6610 (England); 0845 604 5510 (Scotland); 0845 604 8810 (Wales).
During the hiring process, it is good practice to make application forms accessible to as many people as possible. This can be achieved by using different formats, for example, audio and braille. Some candidates may need longer to read questions during selection processes, and you should make allowances for this where relevant.
Where an employee develops, or has an existing, disability, the employer should make reasonable adjustments to allow the worker to carry on with their job.
Reasonable adjustments may include re-allocating some of the employee’s duties to another person, for example, lifting objects where the employee has a bad back. You may want to consider allowing employees time off for counselling sessions or other health-related treatments, transferring the employee to a different vacant post, modifying instructions to reference manuals or allowing the employee to work different hours.
Most adjustments often costs little to implement. There is also government financial help available for this, through the ‘Access to Work’ scheme. More information is available at: www.direct.gov.uk/en/DisabledPeople/Employmentsupport/WorkSchemesAndProgrammes/DG_4000347.
It may not always be possible for the employer to make reasonable adjustments. The law recognises this. The employer will have to show that the discrimination is ‘justified’. What is ‘justified’ depends on the individual circumstances. For example, a very expensive adjustment that a small business simply cannot afford may mean the employer is ‘justified’ in turning down a job applicant. However, the employer will have to be careful in deciding this, and should explore all options first. Can the adjustment be made more cheaply? Are there any grants available?
The tribunals take a strict approach in interpreting what is ‘justified’.
The reason for the discriminatory treatment must be strongly related to the individual circumstances in question, and must be substantial—not trivial or minor.
It is harder for an employer to demonstrate that they were ‘justified’ if they did not take steps to adapt working conditions at the time of the complaint. For example, if an employer provides a specially adapted keyboard and a job applicant with disabilities fails to complete a selection test, the employer may be ‘justified’ in refusing them the job. However, if no specially adapted keyboard is provided, the employer will find it difficult to convince a tribunal that the applicant would not have been able to complete the test adequately even if they had provided one.
In deciding whether their discrimination is ‘justified’, it may be helpful for employers to ask themselves the following questions:
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