The new year is an excellent time for employers and law firms to think about how health-related and disability issues are addressed in the workplace. The trouble with disability legislation – still colloquially referred to as ‘DDA issues’ despite being enshrined in the Equality Act 2010 – is that everyone thinks they understand it, but in practice few really grasp the fact that for disability only among the protected characteristics there is a positive discrimination obligation.
It’s not enough just to not discriminate: the Equality Act for disability requires sometimes that people with disabilities are given better treatment than their able-bodied peers. Non-disabled staff cannot bring claims if disabled peers are getting more favourable treatment.
Stepping back for a second, let’s consider the purpose of the disability provisions for employment. The European Court of Justice case of Ring (C-335/11) puts it very well: the purpose of the law in this area, and in particular reasonable adjustments, is to eliminate barriers which hinder the full and effective participation of people with disabilities.
Eliminating barriers is what it is all about. Barriers to recruitment, barriers to promotion, physical barriers, and attitudinal barriers about what a person with a particular disability is capable of doing. All too often, erroneous assumptions are made, especially around mental health. A classic example is when someone has taken a considerable amount of time off for stress-related depression and anxiety and on their return to work is excluded from high-stress projects on the assumption that they no longer have any resilience.
Every business should consider what the barriers are for people with disabilities. Yes, they might be physical barriers which prohibit easy access for mobility-impaired employees, but there are many other barriers, including overly rigid observance of policies and procedures. For mental health disabilities and HIV the barriers are largely attitudinal. Awareness training here helps.
The law says that where there is a provision, criterion, or practice (PCP) which substantially impacts a disabled person in a way it would not impact on a non-disabled person, employers must take such steps as it is reasonable to obviate the impact. What is reasonable is a subject which has engendered a huge amount of case law, but in reality it is little more than the ‘man on the Clapham omnibus’ test – would an objective bystander think it’s reasonable? The Equality and Human Rights Commission Statutory Code of Practice on Employment gives practical examples.
A key element which is often overlooked is that employers are only obliged to take such steps if there is a relationship between the adjustment and a positive improvement for the disabled person. If an employee asks for something that is wholly unconnected to reducing barriers or assisting them at work, you can say no.
Many practitioners are familiar with now-common adjustments: phased returns to work, building up hours, reducing hours, or temporary home-working, but few think beyond such typical adjustments. For example, hot-desking might be particularly unsettling for a person with an anxiety disorder and such an employee would be reasonable in asking for a fixed desk that they can call their own. Changing office hours for a person who is mobility-impaired so that they might use public transport outside the rush hour would also be reasonable.
There’s so much more that can be done by employers around disability – often at no cost or inconvenience. Another critical aspect is asking the disabled person what they think might assist. Many people with disabilities are reticent about asking for help and may need to be encouraged. As ever, discussion and involving the person in consultation will produce a much more positive outcome than imposing rigid policies. If a request is wholly unreasonable employers can decline it, but again lines of communication should be kept open.
Ignoring a request will surely kick off a grievance and the strain on the employment relationship soon becomes unbearable. I tell my employer clients: if you can make the adjustment, try it. If you try it and it fails to produce any benefit, the employee has no claim for failure to make reasonable adjustments. If it works, problem solved.
Trying adjustments and thinking creatively and open-mindedly around them is a much better solution than rigidity. And it is the best insurance there is against any future employment tribunal claim.
Finally, it is worth remembering that not every employee with a medical condition meets the definition of disability under section 6 of the 2010 Act, which is in fact quite a high hurdle. Reasonable adjustments are only required if the person is disabled. If the position is uncertain, the language of the act should be avoided. Refer to adjustments as accommodations. By using the language of the statute, you give the impression that you accept that there is a disability when at law there might not be.
Karen Jackson is director at didlaw