Please could anyone tell me if a hernia would be covered by the DDA?

Many thanks

Hi fd,

Without more detail it is difficult to say for certain, though in my opinion someone would have to have a very serious hernia to satisfy the definition of disability in the DDA.  It would have to be sufficiently long-term (12 months) and also be so severe that it has a profound negative impact on the person's ability to carry out their normal day-to-day activities.  This is all day-to-day activities not just their working duties.  Whilst uncomfortable, a lot of hernias do not have a significant impact on most persons' ability to carry out their normal life. 

If you are worried that the person you are talking about has a hernia which is more than merely "troubling" then I would get their consent to obtaining a report from their GP about it, alternatively ask them to see occupational health.

Paul

Hi Paul,

Thanks for your response.

This is part of an ongoing tricky situation which I am dealing with, I will give you the shortened version! This individual is currently unable to work in his normal function due to a statutory restriction - namely our client requires his current passport to allow him access to their premises, however this is with the Home Office and will be for an indefinite period.

We have been attempting to source alternative employment for this employee and he has turned down four opportunities - two because of the shift patterns, one because of his hernia and one he did not attend the interview because he felt he could not perform the physical side of the role due to his hernia.

I feel now that we have exhuausted all of the options available to us and that we now need to look at an SOSR termination. However if his hernia (which I understand is no more than merely troubling) falls under the DDA then I realise that we need to look at reasonable adjustments to the other two positions, however, given the nature of the roles I am unclear as to which adjustments we could make reasonably because realistically and operationally speaking, they are physical positions.

I have requested access to his medical records and am awaiting this information from his GP. In the event that it is not covered by the DDA then I feel a termination is appropriate however if his GP states that it is covered then I will have to look at what reasonable adjustments can be made to these roles.

Any suggestions?!

Hi fd,

Interesting situation you face.  I think you are on the right lines.  So far as reasonable adjustments are concerned, assuming that the hernia is a disability, then the scope of the duty is limited by the extent that they are reasonable.  The DDA talks about changes to a person's role, including in certain cases offering them a different role.  I am not aware of any caselaw that states that the obligation to make reasonable adjustments extends to making changes to an alternative role - that would effectively be creating a job for the person, which the DDA does not require.  So, for temporary alternative roles, there is a limit on the changes that you would need to make on the basis that it is unreasonable to implement many changes that will only be necessary for a limited period. 

It sounds to me like you have complied with the duty anyway in offering the individual alternative roles - their rejection of the ones because of the shift patterns does not appear to be anything to do with their hernia.

Once you get the GP report,  don't be surprised if it says something like "yes, this is a disability" which won't really take you much further forward, so I would consider getting occ health involved too as they ought to be able to advise as to what roles the employee is fit to do and not to do.  Then, once any vacancies have been identified in the category that the employee is fit to do, he/she should be offered them and told that if they do not take one of them then you will have to consider if they can continue to be employed.

Obviously, don't forget that the statutory procedures will apply to the dismissal...

Paul