Disability Discrimination & Reasonable Adjustments
By Sancha O’Neill – Published 22 August 2019.
Disability discrimination cases are becoming a regular feature in the news in 2019. More and more employees are taking successful action at Tribunal against employers for disability discrimination and failure to make reasonable adjustments. Only recently, Kevin Meier, a job applicant for BT, was successful in taking action against the company.
So what is a disability and what are reasonable adjustments? What rights do you have as an employee? What steps do you have to take as an employer?
A disability consists of the following four elements:
• A physical or mental impairment;
• That has a substantial;
• and long-term adverse effect;
• On a person’s ability to carry out normal day to day activities (mobility, physical coordination and continence to name a few)
Although medical information will be helpful, the above is actually a legal test and the ultimate decision will rest with the Tribunal.
You may have noticed an increase in these types of claims. Thankfully the stigma surrounding mental health is slowly disappearing and therefore people may feel more comfortable in their work environment to talk and raise issues about same.
However, where employers may not be able to “see” the disability, employees need to be aware of the fact that having a disability and being treated less favorably is not automatic discrimination. An employer has to be “put on notice” of same i.e. they have to have been aware or should have been reasonably aware in the circumstances that the employee might have been suffering from a disability.
Employers should take note; a one off trip to Occupational Health may not do the trick. If you yourself believe there is a disability then you have a duty of care to make reasonable adjustments.
As an employer you have a duty to attempt to remove barriers to allow a disabled employee to do their job in the same way as a non disable employee; reasonable adjustments.
The legislation states that where a provision, criterion or practice applied by or on behalf of the employer or any physical feature of premises occupied by the employer places a disabled employee at a substantial disadvantage, the employer had a duty to prevent it having that effect.
The above is wide ranging and employers will need to take note of this. In the above mentioned case, as part of the recruitment process Mr. Meier was made to sit an online test that put him at a substantial disadvantage due to the fact that he suffered from Asperger’s Syndrome, dyslexia and dyspraxia. Examples of reasonable adjustments are; changing working hours, getting new equipment, providing a reader etc.
An employer does not have a duty to make reasonable adjustments if they did not know the employee was disabled, placed at a substantial disadvantage and they could not have been reasonably expected to know they were disabled. This links back with the need to put your employer on notice.
This conversation will allow disabled employees and potential employees to work more comfortably and allow employers to take steps to help them, thus protecting both parties’ rights.
This article is for general guidance only and should not be regarded as a substitute for professional legal advice.