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What constitutes a disability in the workplace?

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Several recent legal cases have implications for employers seeking to reduce the risk of claims of discrimination on the grounds of disability.

In this blog, Harrison Drury’s Employment team, answers some frequently asked questions on disability in the workplace and discrimination issues.

What is the law surrounding disability discrimination in the UK?

The Equality Act 2010 makes it unlawful to discriminate against someone because of their disability, their perceived disability, or because they associate with someone who has a disability. This would, for example, include an able bodied person who cares for a disabled family member.

It is also unlawful to indirectly discriminate against a person because of their disability by imposing a provision, criterion or practice, which puts them at a disadvantage when compared to others.

The Equality Act also requires employers to make ‘reasonable adjustments’ (see below for more information) to remove disadvantages to the disabled individual’s working conditions, whether that is a physical feature or a working practice.

What is the definition of a “disability”?

The definition of disability covers anyone who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The effect of an impairment is classed as long term if it has lasted, or is likely to last at least 12 months or it is likely to last for the rest of the life of the person affected.

In practice, the definition of disability for the purposes of the Equality Act can be much wider than popular notions of disability, so it is wise for employers to consider making ‘reasonable adjustments’ for employees who have a health issue or impairment.

For example, a recent Employment Appeal Tribunal (Sobhi v Metropolitan Police), held that an employee with limited memory loss had a disability. The Advocate General issued an opinion in the case of Kaltof v Municipality of Billund (a case originating in Denmark, but decided at EU level) that the effects of obesity could amount to a disability.

What provisions do I need to make as an employer to avoid discriminating on the grounds of disability?

The Department for Work and Pensions (DWP) has recently published updated guidance to assist employers in employing disabled people and people with health conditions. The guidance provides an overview and numerous links to further guidance and assistance, including information on Access to Work grants which can pay for the cost of making adjustments for disabled employees.

When do I have a duty to make ‘reasonable adjustments’?

The times when an employer is obliged to consider making reasonable adjustments includes:

  • When recruiting and interviewing for an employee
  • When an employer becomes aware of an employee’s disability
  • If an employee asks for adjustments to be made
  • If an employee is having difficulty with any aspect of their job
  • If an employee’s sickness record, length of sickness absence or delay in returning to work while off sick is linked to their disability

In appropriate cases, reasonable adjustments could include:

  • Making adjustments to the employee’s duties
  • Allowing the employee more time to carry out a part of their duties
  • Adaptations to their work station, equipment or seating
  • Adjustments to their working hours or breaks
  • A phased return to work following illness
  • Allowing the employee to work from home
  • Allowing time off for treatment
  • Access to facilities for the control of their condition
  • Availability of written material in large print
  • Disregarding disability related sickness absences when operating an attendance management programme
  • More time to pass their probationary period
  • Redeploy the employee to an existing vacancy

Not all these examples would be appropriate in all circumstances, the key question is whether the proposed adjustment is reasonable. What is reasonable, may depend on:

  • The extent to which taking the step would prevent the effect in relation to which the duty is imposed
  • The extent to which it is practical for the employer to take the step
  • The financial and other costs which would be incurred
  • The extent to which taking it would disrupt any of his activities
  • The extent of the employer’s financial and other resources
  • The availability to him of financial or other assistance
  • The nature of the employer’s activities and the size of the undertaking

For example in the case of Griffiths v Secretary of State for Work & Pensions the Employment Appeal Tribunal found that it is not always necessary for an employer to totally disregard any disability related absences for the purposes of managing an attendance policy.

In the case of Hainsworth v Ministry of Defence the Court of Appeal held that there is no duty to make adjustments for a person who is not disabled but has care responsibilities for a disabled person.

In what particular circumstances does unlawful disability discrimination apply?

The scope of unlawful discrimination against job applicants and employees includes prohibition of discrimination in offering employment, in the terms of employment, refusing employment, in the way the employer provides access to promotion, transfer, training or receiving any other benefit, subjecting a person to a detriment or dismissing them.

Disability related harassment is also unlawful. Harassment is defined as unwanted conduct which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading humiliating or offensive environment.

The Employment Appeal Tribunal, in the case of Betsi Cadwaldr v Hughes found that the loss of status caused by a gradual reduction over a period of years of an employee’s responsibility could amount to harassment on the basis of disability.

For more information on disability discrimination in the workplace, or any other employment law matter, contact the Employment team on 01772 25832. Harrison Drury has solicitors in Lancaster, Preston, Kendal and Garstang ready to assist your business.


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