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Ask Employment Law |
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Remember: There is no substitute for legal advice on the actual
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Question: |
Discrimination
(Disability): I have had
a bad back for some while. Is that a disability? |
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Answer: |
It’s
sometimes forgotten that the concept of ‘disability’ as defined by the
Disability Discrimination Act (which is replaced by the Equality Act on the 1st
October 2010) can cover a wide variety of medical conditions, one of the most
common of which is back pain. If you have an ongoing back problem which has a significant
affect on your ability to carry out day to day activities, it is quite
possible that this may amount to a ‘disability’ under the Act. You should
discuss this with your employer. A reasonable adjustment in this instance
could include the purchase of a special office chair or arrangements to help
with lifting certain items. The Equality Act 2010: A disability is a physical or mental impairment with a
substantial effect on the persons ability to carry out normal day to day
activities. Cancer is automatically covered. Conditions like wearing glasses,
suffering from hay-fever and a tendency to start fires are not. Employers must not discriminate against someone by reason
of their disability and must make ‘reasonable adjustments to facilitate them
in their role. For example, a man works in a warehouse, loading
and unloading heavy stock. He develops a long-term heart condition and no
longer has the ability to lift or move heavy items of stock at work. Lifting
and moving such heavy items is not a normal day-to-day activity. However, he
is also unable to lift, carry or move moderately heavy everyday objects such
as chairs, at work or around the home. This is an adverse effect on a normal
day-to-day activity. He is likely to be considered a disabled person for the
purposes of the Act. Another example is a young
woman has developed colitis, an inflammatory bowel disease. The condition is
a chronic one which is subject to periods of remissions and flare-ups. During
a flare-up she experiences severe abdominal pain and bouts of diarrhoea. This
makes it very difficult for her to travel or go to work. This has a
substantial adverse effect on her ability to carry out normal day-to-day
activities. She is likely to be considered a disabled person for the purposes
of the Act. It is
discrimination to treat a disabled person unfavourably not because of the
person’s disability itself but because of something arising from, or in consequence of, his or her disability, such
as the need to take a period of disability-related absence. It is, however,
possible to justify such treatment
if it can be shown to be a
proportionate means of achieving a legitimate aim. For this type of
discrimination to occur, the employer or other person must know, or
reasonably be expected to know, that the disabled person has a disability. Under the Disability
Discrimination Act following the
case of London Borough of
Lewisham v Malcolm [2008] it became very
difficult for disabled people to prove they were being treated less
favourably as compared with a non-disabled colleague. The Equality Act seeks
to re-establish
an appropriate balance between enabling a disabled person to make out a case
of experiencing a detriment which arises because of his or her disability,
whilst providing an opportunity for an employer or other person to defend the
treatment. For example an employee with
a visual impairment is dismissed because he cannot do as much work as a
non-disabled colleague. If the employer sought to justify the dismissal, he
would need to show that it was a proportionate means of achieving a legitimate
aim (and that he had first considered and implemented an reasonable
adjustments). Another example is where the licensee of
a pub refuses to serve a person who has cerebral palsy because she believes
that he is drunk as he has slurred speech. However, the slurred speech is a
consequence of his impairment. If the licensee is able to show that she did
not know, and could not reasonably have been expected to know, that the
customer was disabled, she has not subjected him to discrimination arising
from his disability. However, in the
example above, if a reasonable person would have known that the behaviour was
due to a disability, the licensee would have subjected the customer to
discrimination arising from his disability, unless she could show that
ejecting him was a proportionate means of achieving a legitimate aim. The Government has opted to drop the requirement that, for
an impairment to be considered to affect a person’s ability to carry out
normal day-to-day activities, it must affect one or more specified
‘capacities’, including: mobility, manual dexterity,
physical coordination, speech, hearing or eyesight. In the Government’s view, this list ‘served little or no
purpose in helping to establish whether someone is disabled in the eyes of
the law, and was an unnecessary extra barrier to disabled people taking cases
in courts and tribunals’. Tips: If any employee develops an ongoing medical problem,
always ask yourself whether the condition is likely to amount to a
‘disability’ under the Act? If in doubt, consider whether ‘reasonable adjustments’
will facilitate the person in their role. Its always a good idea to ask the
person in question whether they can suggest reasonable adjustments. Remember,
you don’t have to agree if the adjustment is ‘unreasonable’. If you need to dismiss a disabled person for (say)
sickness absence or performance issues; be prepared to prove it is a proportionate means of achieving a legitimate aim. Pre-employment
health enquiries Pre-employment
enquiries about health issues are thought to be one of the main reasons why
disabled job applicants often fail to reach the interview stage. An
employer must not ask about a job
applicant’s health (including any disability) before offering him or her
work or, where the employer is not in a position to offer work immediately,
before including the applicant in a pool of persons to whom he intends to
offer work in the future.
An
employer does not commit an act of disability discrimination merely by asking
about a job applicant’s health, but the employer’s conduct in reliance on
information given in response may lead a tribunal to conclude that the
employer has committed a discriminatory act. In these circumstances, the
burden of proof will shift to the employer to show that no discrimination
took place. This is not quite a blanket ban on pre-employment health
enquiries, however. The Act does not: ·
apply to questions that are necessary to establish whether the job
applicant will be able to comply with a requirement to undergo an assessment
(such as an interview or selection test); ·
whether a duty to make reasonable adjustments will arise in connection
with any such assessment; or whether the applicant will be able to carry out
a function that is intrinsic to the work concerned. The employer is also entitled to ask questions necessary
to monitor diversity in the range of job applicants; to enable him to take
positive action; or to establish whether the applicant has a particular
disability, where having that disability is an occupational requirement. Tip: Check that your application forms don’t include questions about
medical conditions, and that you don’t ask them in the interview. Do continue to ask whether the job applicant has any special
requirements you need to bear in mind prior to the interview. See also our page on the Equality Act 2010 Last reviewed:
July 2010 |
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Employment
Solicitor Reculver Solicitors Tel
0207 324 6271 Regulated
by the Solicitors Regulation Authority ©
Reculver Solicitors. 2005- |
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