Employers are well advised to make sure they are up to date with their disability policies following a spate of recent cases where employers have landed themselves in trouble.
In the recent case of Walsall Council v Peter Francis, Francis was awarded a payout after taking the council to an employment tribunal claiming constructive dismissal and disability discrimination over the council’s failure to make reasonable adjustments under the Disability Discrimination Act (DDA) 1995.
Other recent case law has raised questions about how far it qualifies as a disability, and whether dyslexia meets the 1995 DDA definition of a disability: “A physical or mental impairment having a substantial, adverse, long-term effect on normal day-to-day activities”.
In Paterson v The Commissioner of Police of the Metropolis, it was held that the inability to “read” standard print can be a “substantial adverse effect” (see September issue of Employers’ Law, p9). To help employers, the British Dyslexia Association last month launched a code of practice which deals with discrimination around dyslexia.
Other areas where employers could fall down include HIV, which is one of only three exceptions for which diagnosis is enough to establish disability, because it is accepted that these cause substantial adverse long-term effects. The other two are multiple sclerosis and cancer.
Before setting out your anti-disability discrimination policy, plan ahead by talking with disabled staff and applicants. Consult outside agencies such as disability groups, charities and Access to Work (part of the Job Centre designed to help disabled people find and keep employment, where they can also pay grants towards extra employment costs, eg support workers and specialist equipment adaptations to premises).
For example, when it comes to visual impairment, the primary issue is communication – the use of appropriate alternative formats, to ensure that a person can access and use the same information as sighted colleagues.
Only a minority of visually impaired people use Braille, but it is still the preferred medium for some. Employers can adapt technology to enable visually impaired employees to undertake tasks previously considered beyond them. Other adjustments may include admitting guide dogs. Organisations such as the Guide Dogs for the Blind Association can help.
Once you have implemented the anti-disability discrimination policy, it must be monitored constantly and the results evaluated.
The person responsible for implementing, operating and monitoring the policy should keep in touch with legal and other changes relating to possible DDA issues, maintain links with appropriate outside agencies, and ensure other staff are aware of their duties. These people should be the first port of call for any issues.
The whole company can embrace the spirit of the DDA through training, through which every member of staff must be made aware of the policy and their own legal duties. Regular awareness and training sessions ensure the policy remains an active document.
Equally important, this company-wide communication should extend to disabled staff whose input should be regularly sought. They should be consulted concerning their own role and the policy generally.
Sherie Griffiths is managing director of Griffiths Legal and author of Is the DDA Working for You?
Under the Disability Discrimination Act (DDA) 1995, disabled people have the legal right to fair treatment, while the DDA of 2005 imposed a duty on public bodies to actively promote disability equality, and closed some of the loopholes in earlier legislation. The scope of the regulations applies throughout the employment relationship, from recruitment to post-termination, and includes the retention of staff who become disabled or whose disability changes.
A company’s duty is not to discriminate, directly or indirectly (the difference between the two needs careful explanation). Candidates and employees should be given the benefit of any doubt about whether they are “disabled” under the DDA.
The DDA employment provisions in Part 2 of the 1995 Act are supported by a raft of regulations and a code of practice. While not legally binding, the code will be followed by courts and tribunals if relevant to a case.
The law places the burden of deciding fine issues of definition upon courts and tribunals, rather than employers.
The employment duties cover:
- Direct discrimination – less favourable treatment because of disability, never justifiable, can flow from unthinking assumption.
- Indirect discrimination – less favourable treatment for a reason related to disability, potentially justifiable, if it is unavoidable.
- Reasonable adjustments – where any “provision, criterion or practice” or any “physical feature of premises” puts a disabled person at a substantial disadvantage, the employer must take “all reasonable steps” to remove the disadvantage – employers are only expected to do what is “reasonable” for them. However, potential adjustments must be thoroughly investigated before dismissing them as “unreasonable”.
- Harassment – humiliation or degradation related to disability.
- Victimisation – less favourable treatment due to exercising any right, or helping someone else to exercise any right, under the Acts – the only protection for non-disabled as well as disabled people under the DDA.
WHAT SHOULD A DISABILITY POLICY COVER?
- Promotion of an environment free from discrimination, harassment and victimisation
- Removal of barriers to access terms, conditions and benefits of employment
- Special arrangements for recruitment, training, career development and retention
- Principles of reasonable adjustments
- Physical access to premises and provision for specialist equipment.
The policy may stand alone or be incorporated into a general equal opportunities and diversity policy.
This is how I did it
Managing director of the HR Dept
The HR Dept provides small- and medium-sized businesses with an outsourced HR department.
Policies on disability can never cover every situation, and it is important to concentrate on the individual and their abilities. There is a positive duty on all managers and supervisors to take into account the needs of staff and applicants with disabilities.
Applicants should be encouraged to provide information on any practical requirements.
Decisions are based on the suitability of the applicant’s qualifications, experience and skills for the position.
We always try to enable staff to stay in their jobs with suitable adjustments before considering alternatives.
Take advice from the individual, medical professionals and disability advisers or other organisations and agencies that can offer specialist advice on adaptations, equipment or training. Also consider flexible working arrangements.
We helped a warehouse production team when an employee (John) was involved in a car crash. His injuries kept him away from work for more than a year. His managing director contacted us after receiving a letter from him explaining that, although he still had some problems walking and sitting for long periods, he was ready to return to work. The managing director felt that John was unlikely to be able to make a positive contribution to the company, and wanted to dismiss him.
We looked at John’s job description and investigated how his role had changed. The greatest difference involved a new computer system – something that would only require some IT training.
A work-feasibility assessment with an occupational therapist was suggested, and we arranged for a physical needs assessment with Access, which provided funding for a special chair. His work bench was adapted and we arranged for a later daily start time. We planned a phased return and within three months he was working four days a week.
As well as avoiding a costly tribunal, the company avoided recruitment expenses, and benefited from the value of John’s experience.
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