The number of Employment Tribunal claims has dropped by 79% since 2012.
Although employers will welcome this reduction, complacency might come at a price as disability discrimination claims remain popular. Understanding and acting appropriately on obligations in this regard has never been more important.
The definition of a disability in the Equality Act 2010 goes far beyond traditional stereotypes and includes conditions which are not immediately obvious. An employee is disabled if they have a physical or mental impairment, which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This is a highly subjective and technical test.
While many employees with minor health issues will satisfy the test, they will not always suffer disadvantages at work. Encouraging an open culture of communication will help employers to identify where employees might be struggling.
Where employees do face difficulties at work due to a disability, the employer will probably be obliged to make reasonable adjustments to, for example, formal or informal workplace policies, rules, practices, arrangements or qualifications including one-off decisions and actions.
In practical terms this might mean extending contractual sick pay where employees have higher absence levels due to a disability. Another example might be to amend a car parking policy whereby senior staff benefit from designated spaces right outside the office in order to accommodate a junior employee with a mobility impairment.
The same employee is likely to be disadvantaged by physical features such as flights of stairs in and around the office. Most modern buildings have a lift but, if not, providing folding access ramps or assigning colleagues to provide physical assistance and support to the employee could be a simple and cost-effective reasonable adjustment. Alternatively, arrangements could be made for the employee to work on the ground floor, provided that this doesn’t somehow exclude the employee.
These examples demonstrate that reasonable adjustments are usually quite straight forward and inexpensive where disabilities are caused by physical impairments, but things can be more difficult where disabilities are by virtue of a subjective mental impairment such as depression.
In all cases, the key is to obtain the employee’s input to identify any disadvantages they feel they are suffering, and any reasonable adjustments they feel would specifically help them. Advice from Occupational Health and a medical practitioner is highly recommended and will often assist.
As part of this process, disabled employees might ask for a job transfer or for a whole new job to be created for them. It is also not uncommon for employees to ask for counseling or other therapy to be paid by the employer, although none of these steps obligatory. The test is simply whether the adjustments are reasonable in the specific circumstances.
Cost, disruption and practicability are the key factors when assessing reasonableness, together with the size of the organisation, the resources available to it and the nature of its activities.
A common sense approach should always be taken. Although the focus always has to be on assisting the employee, high-cost adjustments may not be reasonable where resources are tight and where there is a cheaper alternative which is just as effective.
For example, if an employee struggles to concentrate because of a depression, it might be more reasonable to relieve the employee of certain tasks rather than create a new role for them and recruit a replacement to fill their old role. Another alternative might be to relax any disciplinary procedures in relation to under-performance of that task.
The important thing to remember that there is no ‘one size fits all’ answer. A proactive approach where the employer maintains a dialogue with a disabled employee is always best. Find out what the employee feels the problem is, explore effective ways to alleviate it and promptly implement the reasonable adjustments identified.
Such an approach often results in employees with more complex needs accepting that there is nothing further that can be done to help them at work, and an amicable parting of ways. Being flexible from the outset always ends up less burdensome than a costly and time-intensive discrimination claim.
Associate at Clarion
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