The Equality Act 2010 protects disabled employees from discrimination in the workplace. The duty to make reasonable adjustments is the most common form of protection and, where that duty arises, an employer must effectively treat the disabled employee more favourably than others in an attempt to reduce or remove the disadvantage faced.
A difficulty for employers is that it is not always apparent when someone has a disability – or a disability arising from a condition – as these can be 'hidden' or 'invisible', such as some cancers, autism, epilepsy and mental health conditions. However, once the employer knows, or ought reasonably to know that an individual is disabled and, crucially, is likely to be placed at a substantial disadvantage as a result of that disability, the duty is engaged.
Employers are prohibited from asking applicants questions about their health, other than for prescribed reasons. Reasonable adjustments need only be considered where a disabled candidate requests them, or the employer becomes aware of a substantial disadvantage due to disability. Even where voluntary disclosure of a disability is made, employers should be careful as to what further questions are asked.
Before employment starts, other forms of reasonable adjustments should be considered apart from the physical. Other adjustments may include allowing more time for tests or, for example, allowing an applicant to answer a multiple choice test in an alternative format, such as by providing short written answers. Only after a job offer is made can an employer ask what reasonable adjustments may be needed to allow the candidate to do the job, to include completing any induction period and training and development.
After employment begins, employers may have formal or informal policies, rules, practices, or even one-off decisions that apply to all employees, but that place disabled employees at a substantial disadvantage by comparison. However, caution should be exercised when considering modifying internal procedures for disabled employees, as a reasonable adjustment as this will set a precedent.
For example, it is not always the case that an employer needs to ignore disability-related absences and treat a disabled employee more favourably. Some attendance procedures will trigger disciplinary action after a specified number of absences within a rolling period, and while a disabled employee may be placed at a substantial disadvantage as a result, due to the likelihood of being absent more often than a non-disabled employee, consideration should first be given to whether the employer can objectively justify the procedure.
For example, where it can be evidenced that the business is severely affected by absence (where punctuality is paramount to service delivery), the employer may be able to show that the procedure is a proportionate means of achieving a legitimate aim.
A lot of disability-related absences may be avoided or better accommodated by taking steps at the outset to identify and implement reasonable adjustments. For periods of long-term disability-related absence, before considering dismissal an employer needs to go further than it would with a non-disabled employee and consider adjustments to the role or, as a last resort, suitable alternative employment with or without a competitive interview.
Rather than focusing too heavily on whether or not the definition of disability is met and whether additional legal obligations are engaged, the focus should be on the needs of the individual. Ultimately, this will benefit the business in terms of productivity. Where a substantial disadvantage is identified, a proper assessment should be conducted in consultation with the employee to identify any adjustments that could be made to reduce or remove that disadvantage. For the most part, adjustments involve little cost and are therefore likely to be considered reasonable.
Sam Murray-Hinde is a partner in the employment team at Howard Kennedy