The Chartered Institute of Personnel and Development (CIPD) define having a disability as ‘a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. It covers physical and mental conditions’. A person who is deemed to have a disability is protected, under the Equality Act 2010, against unfair treatment arising because of their circumstances.
For employers it is important to identify any disabilities early in the employment relationship to ensure:
(1) you are able to provide reasonable adjustments – see our blog Making Reasonable Adjustments: a guide for managers for more information
(2) to reduce the risk of the employee claiming discrimination (directly or indirectly)
(3) to properly support individuals.
There is also an ongoing need to identify disabilities as they arise throughout the employment relationship.
What can employers do to identify and support individuals with disabilities?
Employers are prohibited from asking about an individual’s disability status during the application process or before a job offer is made, as this could lead to discrimination against individuals with disabilities (there are exceptions to the rule, but we suggest talking to a member of the ViewHR team to discuss this). Once an employer has made a job offer, they may ask the employee to complete a health questionnaire or a disability disclosure form. The form may ask questions such as:
- Are you currently under the care of a doctor, consultant, or other medical professional?
- Are you currently taking any prescribed medication?
- Are you currently suffering from, or have you ever suffered from, any of the illnesses listed below (list illnesses and conditions)?
The purpose of the form is to enable the employer to identify any disabilities and thus any reasonable adjustments that may be required to enable the employee to perform their job effectively. However, the employer must keep this information confidential and only share it with those who need to know.
As mentioned before, questionnaires or disclosure forms should be updated periodically to ensure you as employers have the most up-to-date information.
Look for the Effect not the Condition
The CIPD make an important statement regarding disabilities:
‘To be covered [under the Equality Act 2010] a condition doesn’t have to be clinically well-recognised. Employers should focus on the effects an employee is experiencing at work, not on the disability or condition. Many people with a disability which could potentially be covered by the Act may not necessarily consider themselves to be ’disabled ‘, even though they may still need adjustments to support them in the workplace. Employers may need to make adjustments for employees who do not say or think they are ’disabled ‘’.
Employers, particularly line-managers should be sensitive to changes in behaviours in their staff. Have there been changes with an individual that is now affecting their ability to carryout day-to-day activities? Possibly you may be alerted to changes as a result of reviewing performance outputs – this is the time for managers to step in and communicate with staff. Employers, aim to understand what is going on by talking to the employee, and then in consultation, where needed, make reasonable adjustments.
Company Wide Training
Disability awareness training is important for a number of reasons:
- Increases understanding: Disability awareness training helps employees to better understand the challenges and barriers that people with disabilities face in the workplace. This increased understanding can lead to greater empathy and support for colleagues with disabilities. It can also help managers to identify and support individuals with disabilities.
- Improves communication: Disability awareness training can improve communication between colleagues, particularly in relation to the needs and preferences of employees with disabilities. This can lead to more effective teamwork and collaboration. Because training opens the conversation, employees may feel more confident in speaking to line-managers about their disability which will aid in the support process.
There are, however, situations where we may not, despite our best efforts, gain knowledge of a person’s disability. That is exactly what happened in the case of Preston v E.on Energy Solutions Ltd.
Preston v E.on Energy Solutions Ltd.
In the case of Preston v E.on Energy Solutions Ltd, the Employment Tribunal (ET) found that the claimant’s primary reading epilepsy (PRE) gave rise to a substantial disadvantage, but the employer did not know or could not have reasonably known of this disadvantage until 18 October 2017 when a sickness note identified the reason for absence as ‘PRE symptoms were worsened by stress’. The ET further found that the employer had put in place all reasonable adjustments after it became aware of the condition, including occupational health assessments, stress and health risk assessments, and time to return from their sickness absence.
The occupational health report noted that the employee was fit to return to work should the employer make adjustments; E.on made the required alternations. The respondent stated that the employee should return to work on 27 February 2018; he did not return. A disciplinary meeting was arranged. The claimant was eventually dismissed because of his conduct in refusing to engage with measures put in place to secure his return to work.
The ET concluded that this dismissal was justified as a proportionate means of achieving the employer’s legitimate aim of efficient absence management. The claimant appealed, but the court dismissed the appeal, finding that the ET had considered the relevant issues and made permissible conclusions based on the evidence presented.
What do we learn from the case of Preston v E.on Energy Solutions Ltd?
Firstly, employers should aim to gain knowledge of any disabilities that their employees may have; however, it is not reasonable to know everything. Once E.on learnt of Preston’s disability they acted to further understand the condition and then make reasonable adjustments; employers would do well to follow that example.
Should you be dealing with a sensitive case around employee disability, ViewHR would be happy to provide advice and guidance. Contact us today for a free initial discussion.