Ignoring harassment or discrimination, or dismissing concerns out of hand, could cost you dear at an employment tribunal, warns Ed Cotton
One of the more unexpected headlines from COP26 concerned an Israeli minister who was unable to attend because the transport she was offered to take her to the conference was not wheelchair-accessible. Meanwhile, the UK government is planning to consult on disabled workforce reporting (mandatory and voluntary) for larger companies as part of its new national disability strategy.
In short, the indicators suggest that employers will face growing pressure to do more to improve job prospects for people with disabilities and prioritise this in their approach to equality, diversity and inclusion.
Disability is a protected characteristic under UK equality laws. It is defined as a physical or mental impairment that has a substantial and long-term negative effect on someone's ability to carry out normal day-to-day activities. Employers must do all that's legally required of them to stop disability discrimination or harassment from happening, and must make reasonable adjustments.
Depending on the type of discrimination (direct, indirect or ‘arising from' disability), an employer may not be able to rely on a lack of ‘actual' knowledge as a successful defence in any claim of disability discrimination against them, and may be fixed with ‘constructive' knowledge. Employers can also be ‘fixed' with knowledge via their agent (eg an occupational health adviser), even if they didn't know about an employee's disability themselves.
Employers cannot simply turn a blind eye to a condition which they suspect may be a disability. They may be liable for indirect disability discrimination even if they did not know a person was disabled and could not reasonably have been expected to know – for example, if the person deliberately concealed their condition. In such circumstances an employer may have a defence if their actions were justified.
People with disabilities are the largest minority group in the world (around a billion people), yet focus on this group has fallen behind other equality areas such as gender and ethnicity. However, with various campaign groups and initiatives launching in 2021, and disability workforce reporting possibly on the way, this could change and businesses will need to make provision accordingly.
Arguably, disability discrimination is more complex than gender discrimination. For example, no two disabilities are the same, and many are hidden or invisible – such as mental health conditions, autism, sensory processing difficulties and cognitive impairments.
An added layer of complexity is that, perhaps understandably, employees may not be forthcoming about their condition. However, a supportive environment, training for management and a positive culture around health and wellbeing at work can help staff with disabilities feel more comfortable opening up.
When it comes to requesting medical reports, the purpose is not to obtain information on the employee's disability generally, but their ability to do their job and any adjustments that might be required.
It can be useful to have a list of template questions, but a flexible, enquiring approach is recommended, and follow-up questions can always be asked. For example, a report may state an employee cannot undertake certain tasks but you could ask what they can do if given sufficient support.
- Ensure your policies are up to date.
- Build a culture of trust, openness and respect.
- Ask the right questions to encourage people to open up.
- Don't be too quick to dismiss something as not being a disability.
- Consider the questions you ask occupational health professionals and be prepared to ask follow-up questions if necessary.
Beware! Tribunals do not look fondly on employers who have been quick to dismiss something as not being a disability. Disability is an important issue that requires careful consideration and specialist advice.
Ed Cotton is a partner in the employment team at TLT Solicitorswww.tltsolicitors.com
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