Legal

How to manage the rise of the disability agenda

25 Nov 2021 By Leeanne Armstrong

Following Boris Johnson’s apology to a minister who was unable to access COP26, Leeanne Armstrong offers advice on addressing the disability employment gap

Numbering over a billion people worldwide, disabled people are the world’s largest minority and face some of the greatest challenges at work. For example, a disabled person with a degree has no more chance of being employed than a non-disabled person who left school at 16. The scale and scope of disability employment issues cannot be understated. 

The literal barriers faced by disabled people were starkly illustrated by the recent experience of Israeli minister Karine Elharrar, who was unable to access the COP26 summit in her wheelchair. Commenting on this, the minister said “…we need to pay attention to all the details”. What does this mean for people managers thinking more widely about accessibility and addressing the disability employment gap?

Tackling the question of what is or is not a disability is the first challenge. Employees may under-report their difficulties; disabilities may be hidden, invisible, difficult to diagnose or little understood by line managers. 

This is not helped by the rigid legal definition of disability: a physical or mental impairment which has a long-term and substantial effect on a person’s ability to carry out normal day-to-day activities. There is no schedule or pro forma tick box exercise to determine whether a person has a disability. It is more complex.

When making this assessment, employers must take an enquiring approach; asking questions and possibly instructing an expert, such as an occupational health doctor. When deciding if you “knew” about an employee’s disability, an employment tribunal will look at what you ought reasonably to have known, not just what you actually did know. 

Even if a medical report advises no disability, it may not be enough to accept that at face value; you cannot entirely outsource your thinking on this. You may need to ask follow-up questions.  

To add to the complexity, sometimes disability discrimination can occur even if there was no possibility of knowing that a person was disabled. This can happen if an organisation puts in place practices, procedures or policies which have a disproportionately negative impact on disabled people, and a disabled person was disadvantaged as a result. This is indirect discrimination and will be unlawful unless justified. 

Accessibility and equality at work for disabled people is also promoted through making reasonable adjustments. The aim here is to level the playing field and the big question is: what is reasonable? Again, there is no government toolkit or online calculator to answer this question. Employers must look at a whole host of factors, notably: 

  • The size of any dedicated budget for reasonable adjustments; 

  • What the employer or other employers have spent and why;

  • A comparison between the cost of an adjustment and the employee’s salary. 

Returning to the Israeli minister’s call to look at “all the details”, employers must look beyond legal obligations alone and consider other steps to removing barriers to work. For example, recording and publishing disability data and promoting a culture in which line managers and employees feel comfortable having human conversations without fear of triggering claims. 

Progress on removing barriers to work should sit alongside the government’s wider Disability Strategy and should also align with expected legal reforms. Forthcoming developments include: the right to request flexible working becoming a “day one” right, a new entitlement to a week’s unpaid carer’s leave and improving access to apprenticeships for disabled employees. 

Legal compliance coupled with cultural change will place forward-thinking employers ahead of the curve as the government’s strategy beds in, and the law on accessibility to work develops.

Leeanne Armstrong is legal director at UK law firm TLT

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