From the symptoms of the menopause to long Covid, it can be difficult for employers to identify when individuals may have a disability. What is a disability and what are the risks employers ought to be aware of?
Some conditions are automatically deemed to be disabilities, including cancer, HIV and multiple sclerosis. Other conditions can amount to a disability if the following things apply:
‘Long term’ means that the effects have lasted or are likely to last 12 months or more. An impairment will have a ‘substantial’ effect if its effects are more than minor or trivial.
Employers have a legal obligation to make reasonable adjustments for individuals with disabilities (see ‘Duty to make Reasonable Adjustments’ below for more information). It is also unlawful to discriminate against such individuals in any of the following ways. Note that these protections apply to job applicants and all types of workers (including agency workers) and not just employees.
There are also certain restrictions on asking pre-employment health questions which are outside the scope of this summary.
If a disabled person would be put at a substantial disadvantage compared to others due to:
then the employer must take reasonable steps to avoid the disadvantage. This might include making adjustments to workplace premises, such as providing a ramp, providing information in accessible formats, e.g., in braille or large font, or altering a disabled worker’s hours. Note the obligation is to make adjustments that are reasonable in the circumstances and there may be adjustments which are too expensive or impractical to put in place.
Failing to comply with these obligations could leave an employer facing a costly claim for disability discrimination. If successful, the employer can be ordered to pay the disabled person uncapped compensation. Bearing in mind these risks, employers should tread carefully where individuals may have a disability and seek appropriate advice.
This note is for information only and is not legal advice. It reflects the position as at 14 October 2021. For any questions, please get in touch with Natasha Adom, Alison Sneddon or your normal GQ|Littler contact.