If an employee is off sick, how can their employer find out if they are disabled for the purposes of the Disability Discrimination Act 1995 (DDA) and the amendments in October 2004?
An employer should follow the same process with any employee whose absence, due to ill health, is causing concern. This process involves a consultation with the employee (which should be conducted as sympathetically as possible) and an investigation of the employee’s condition and prognosis with medical practitioners.
Employers should get a report from the employee’s GP and, with the employee’s consent, an investigation and report from a specialist. If an employer takes any action against an employee (disciplinary action or dismissal) without conducting a thorough consultation and investigation process, it is almost certain that a dismissal would be deemed unfair.
If the employee’s condition is a disability (see below), an employer would be liable for disability discrimination.
What constitutes a disability?
The DDA defines a disability as a mental or physical impairment that has a substantial and long-term effect on a person’s ability to carry out normal day-to-day activities. It is now no longer necessary for a mental impairment to be clinically well-recognised. Instead, if there is medical evidence that a mental condition has a severe impairment on day-to-day activities, it is likely to be a disability for the purposes of the DDA.
The DDA was recently amended so that people with progressive conditions such as HIV, multiple sclerosis or cancer are deemed to be disabled, even if the impairment does not have a substantial effect on their ability to carry out day-to-day activities. This is because the condition is likely to have that effect ultimately.
The DDA removes the requirement that a mental impairment must be a well-recognised clinical illness. What effect will this have?
Potentially, it will widen the scope for employees to argue that they are disabled. However, they will still need to show that they have a mental impairment by referring to medical evidence, and it is unlikely that a tribunal will accept loose terms such as stress, depression and anxiety as a mental impairment without such evidence.
The employee will also need to demonstrate that the impairment has a substantial adverse effect on their ability to carry out day-to-day activities that has lasted, or will last, for at least 12 months.
What constitutes discrimination under the DDA?
There are now five types of unlawful discrimination:
- direct discrimination, when an employer treats someone less fav-ourably because of their disability
- disability-related discrimination, when an employer treats a disabled person less favourably for a reason related to their disability and cannot show that the treatment is justified
- failure to make a reasonable adjustment in relation to a disabled person
- victimisation, when an employer treats someone less favourably because they have either asserted a right under the DDA or assisted someone in doing so
- harassment, when, for a reason relating to a person’s disability, someone engages in unwanted conduct that has the effect of either violating the disabled person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
There is a fine distinction between direct discrimination on the grounds of disability and disability-related discrimination. For instance, if an employer assumes that an applicant for a secretarial job who has arthritis will not be able to carry out all aspects of the job due to that arthritis and refuses to employ them, that is direct discrimination. However, if the arthritic applicant is turned down because she fails a typing test when she has told the employer that the arthritis affects her ability to type and that she will need to use an adapted keyboard in order to take the test, but is not provided with one, that would be disability-related discrimination.
The fact that she failed the typing test was related to her disability and the employer did not take steps to accommodate the disability by providing the special keyboard (or allowing her to use her own) for the test.
Does this mean I have to positively discriminate in favour of a disabled employee or applicant?
Broadly, yes: an employer is under a duty to take whatever steps that are reasonable in the circumstances to prevent a disabled employee or applicant being disadvantaged by a provision, criterion or practice that is applied by the employer. There is no justification for failing to do so.
The duty can extend to making adjustments to premises or equipment to enable a disabled person to undertake a specific role, to changing the role itself, through to giving consideration to continuing sick pay beyond an employer’s normal contractual arrangements. How far an employer needs to go will depend upon the specific circumstances surrounding each situation.
Mark Hunt, head of employment at Reed Smith LLP