HR practitioner Archita Misra explores what disability means within the law and how employers can make reasonable adjustments to accommodate disabled employees and avoid discrimination issues.
Origins of legal disability protections in the workplace
For many decades, the only law that addressed the rights of disabled people in the workplace was the Disabled Persons (Employment) Act 1944. This law was passed towards the end of the second world war and was aimed to support people who were injured during the war. The law required employers with more than 250 employees to employ a quota of disabled persons, but it became largely ineffective by the 1990s and the set criteria was ignored by employers.
The Disability Discrimination Act (DDA) 1995
In the early 1990s, many protestors including disabled people came to streets demanding a new legislation for the protection of their rights and equal treatment in the workplace. These protests were supported by Disabled people’s Direct-Action network (DAN). As a result, the Disability Discrimination Act (DDA) was passed by parliament in 1995. The law was introduced with the intention to prevent employers from treating disabled employees unfavourably.
The DDA 1995 is one of the most comprehensive UK employment laws passed in recent years. This law was applicable to employees, workers, job applicants and ex-workers. This law was amended in 1999, 2004 and 2005.
The Equality Act 2010
The Equality Act 2010 brought together all discriminatory laws under one umbrella in England, Wales, and Scotland. However, the DDA law remained in the statute books in Northern Ireland. Under the Equality Act 2010, disability is one of the protected characteristics out of the total of nine listed in the act. Below is the list of the protected characteristics under the Equality Act 2010:
- Sexual Orientation
- Religion and Belief
- Gender Reassignment
- Pregnancy and Maternity
- Marriage and civil partnership
What is disability?
As per the Equality Act 2010, a person is considered disabled if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities.
However, the definition of disability has been controversial and as a result many people who were considered disabled under the previous Act (1944) are not covered as disabled under the new act (2010) and vice versa. Let’s look at the meaning of the key terms defined under the above definition of disability:
- ‘Impairment’ means loss of any key bodily function, which might also include any illness
- ‘Substantial’ means a condition that can be described as more than a minor condition
- ‘Long-Term’ is defined as the condition has lasted/might be expected to last for 12 months or more
‘Normal day to day activities’ means everyday tasks that an average human being does to carry out their life. It doesn’t include hobby/ leisure activities like being unable to play Netball, for example.
The importance of accommodating disabled employees
Scope UK has presented some interesting statistics highlighting that disabled people are twice as likely to be unemployed compared to their non-disabled counterparts. Another study from the UK government shows that disabled people are more likely to face discrimination in the workplace compared to their non-disabled counterparts.
Learn more: How to prevent discrimination in your business
The above statistics show the importance of accommodating and protecting the rights of disabled employees so they are treated equally in the workplace. The above figures also highlight that, in this labour-tight market, there is an untapped pool of potential which, if employed, would reap benefits for both employers and disabled people.
Making reasonable adjustments for disability
After becoming aware that an employee/worker/prospective job candidate is disabled, the most crucial point for an employer’s consideration is making reasonable adjustments. Employers can lawfully refuse to accommodate the needs of a disabled employee/worker or prospective candidate if they can prove that the adjustments required are unreasonable.
There are no clear guidelines in the law that can be the deciding factor to measure reasonableness. However, decisions made in various case laws have given some guidance on what is considered as reasonable.
Adjustments can be categorised into the below categories:
- The working environment (getting someone to help)
- Working arrangements (changing someone’s shift pattern) and
- Working conditions (providing new equipment for ease of use)
As a good practice for employers, here are some of the reasonable adjustments you could consider implementing:
- Re-organising the duties of a disabled employee to accommodate their requirements
- Modifying the recruitment process by considering the requirements of disabled candidate
- Office movement to let a disabled employee/worker work from a more suitable location
- Adjusting sick pay allowance and permitting more sick pay for disabled people
- Adjusting work hours: for instance providing flexible working, exempting them from overtime hours, and providing longer rest breaks.
- Making physical changes to the workplace or work equipment
Learning from recent tribunal cases
Not every disability is visible and employers need to exercise caution in dealing with such cases. In the case of D ’Silva v Croydon Health Services in January 2021, the tribunal ruled that the organisation failed to make reasonable adjustments for the employee and the employee was unfairly dismissed.
Said employee was a receptionist who was suffering from anxiety issues and was unable to perform patient facing roles. This resulted in her taking long-term sickness absence and she was eventually dismissed on the grounds of capability issues owing to ill health. You can read more about recent case laws on disability discrimination on the CIPD and Disability Rights UK websites.
Recommendations for employers on managing disabled employees
We live in a society today where people’s voices are heard more than ever before. Everyone has the right to fair treatment and equal opportunities. Hence, it becomes paramount for managers and employers to revisit their way of working and the way employees are treated in the organisation.
As the law around disability discrimination keeps evolving based on outcomes from case law, it is crucial for companies to adapt good practices, such as:
1. Clear communication
Companies should be clear in their communication via policies/procedures regarding their principles and ethos. The vision of the company should reflect inclusivity for disabled employees.
2. Training managers
It is crucial for managers to envision the difficulties a disabled person may face in carrying out normal day to day activities. It has been seen during many tribunal cases that the managers were unaware of the procedures and laws around disability discrimination. Providing comprehensive training to line managers regarding the legal implications of a breach of the law is key for building a healthy work environment for everyone.
3. Reasonable adjustments
Employers should make efforts within the limits of the organisation to implement reasonable adjustments. Every adjustment made and the factors considered while planning to make/not make any adjustment should be documented with clear and concise justification.
Document your HR processes accurately and store important HR and staff documentation within a secure HR software system designed for SMEs.
4. Empathy, not sympathy
Last but not least, employers should empathise and listen to the needs of disabled employees. Essentially, what a disabled employee needs is more understanding so that they can share their opinions and experiences. This can be achieved by forming a support group in the organisation who are trained to deal with such matters.
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Written by Archita Misra
Archita Misra is an MCIPD qualified Human Resources professional with more than 12 years' experience in HR operations and strategy across different industries. She has also done an MBA in Human Resources and offers project-based consultancy services for organisations.