With World Diabetes Day having taken place on 14 November 2022, and World Cancer Day and International Epilepsy Day taking place in February 2023, the promotion of these events seek to raise awareness of these conditions and enhance understanding of the impact that such illnesses can have on individuals’ daily lives. Alongside this, it also provides employers with the opportunity to reflect on how employees with significant underlying health conditions are currently supported whilst at work, and whether more can be done to assist them to remain in work.
Despite one in five people of working age being disabled, the employment rate of those within this group stands at only 52% in the UK. In contrast, the employment rate of people without disabilities is significantly higher at 81%. This highlights that there is more that can be down to engage with individuals with an underlying health condition, to support them into the workplace and to assist them to thrive.
In considering how best to support employees with a disability, it should be noted that for some employees, their disability may be something they have learned to live with for a significant period, sometimes since birth. For others, their disability may have come about as a result of a fairly recent diagnosis and they may be struggling in dealing with the impact of that diagnosis. Worries around their long-term health prospects, the impact on their family and how they will be able to continue working and provide financially for their loved ones are common anxieties. These should not be underestimated in terms of the impact this can have on an individual’s mental health and wellbeing.
The definition of disability is defined by the Equality Act 2010 as having a physical or mental impairment that has a substantial and long-term negative effect on a person’s ability to do normal daily activities. ‘Substantial’ means more than minor or trivial, such as taking much longer to a complete a daily task like getting dressed. ‘Long-term’ means 12 months or more, however individuals diagnosed with HIV infection, cancer or multiple sclerosis automatically meet the disability definition from day one of their diagnosis.
Disability discrimination arises when an individual is treated less well or put at a disadvantage for a reason that relates to their disability. The treatment could be a one-off action, the application of a rule or policy or the existence of physical or communication barriers which make accessing something difficult or impossible. The discrimination does not have to be intentional to be unlawful.
As an employer, it can feel too difficult to know how best to support an employee with a disability. Ensuring working conditions do not exacerbate someone’s symptoms and protecting employees from discrimination is part of your legal duty. Often the best way forward is to ask the employee what they need – after all, they are the experts in understanding their health condition and how it affects their day-to-day life. Sometimes, it will also be appropriate to seek Occupational Health advice, to ask for an expert medical view on what practical steps you can implement to support your employee. These are known as ‘reasonable adjustments’. It is a legal requirement that reasonable adjustments are considered by employers and where possible and reasonable implemented to ensure that you are not found to have discriminated against an individual on the grounds of their disability, and to ensure they are protected whilst at work.
Examples of adjustments could include flexible working, alterations to premises, reviewing job duties and allowing time off for medical appointments. Note that what may be considered ‘reasonable’ for one employer may not be for another – this is a legal test and therefore you should seek HR advice if you are struggling with implementing adjustments to ensure that all factors have been considered.
Recent employment tribunal cases where disability discrimination has been a factor have highlighted that once an employer has been put on notice that an employee has a potential disability, they should seek Occupational Health advice on the extent of the issue and effect on the employee’s ability to carry out their job. The onus is on the employer to take reasonable steps to ascertain the position, rather than on the employee to volunteer medical information (beyond the duty to submit fit notes) if they do not wish to. Ultimately, employers should put reasonable adjustments in place to remove or reduce the disadvantage caused by the disability on the employee’s normal day-to-day activities to reduce the risk of tribunal claims.
It is worth noting that businesses stand to gain from employing disabled people. There are clear, well-documented benefits of building a diverse workforce. It has been said that disabled people have a unique skillset at their disposal, based on resilience, courage and a determination to succeed.
It is recommended that businesses seek HR advice on Disability Law and recommended solutions at an early stage to ensure that issues are addressed and managed effectively and to avoid matters becoming overly complex where possible. If your organisation needs any assistance with this or any other HR issue please contact us here.
People Management www.peoplemanagement.co.uk
Disability Law Service (www.dls.org.uk)
CIPD HR Inform