FAQ: Employing disabled workers and people with health conditions

 

Government statistics for 2021 show that one in five of the working-age population are classed as disabled. More people are reporting a long-term health condition or disability than did so eight years ago. Given that disability affects a significant proportion of the working-age population, as an employer you need to be aware of your obligations towards disabled workers. 

The Equality Act 2010 places obligations on both businesses who provide goods and services, as well as employers, not to discriminate on the basis of a disability and to make ‘reasonable adjustments’. These legal obligations apply regardless of your business size or how many employees you have.  

We asked Hannah Thomas, employment solicitor at FSB Employment Protection, your frequently asked questions about employing disabled staff. For further guidance, FSB members can refer to in-depth factsheets on ‘absenteeism, ill health and disability discrimination’ and ‘unlawful discrimination’, as well as template letters and documents on the FSB Legal and Business Hub. 

What does the law say on employing disabled staff? 

Under the Equality Act 2010 no employer may treat less favourably a disabled person in terms of recruiting, training, promotion, dismissal or redundancy than any other person. Equivalent legislation applies in Northern Ireland. There is no upper limit to compensation which might be awarded to an employee if an employment tribunal agrees they have suffered unlawful discrimination, harassment or victimisation at work due to a protected characteristic, including a disability. 

A 'disabled person' is legally defined as someone with 'a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities'. ‘Long-term’ means the impairment has lasted or is likely to least at least 12 months. A disability does not only apply to physical impairments, but also applies to mental impairments.  

The Equality and Human Rights Commission (EHRC) has published a number of guides on how to comply with equality law and implement good practice in all aspects of employment including recruitment, pay, working hours, managing staff and developing policies. 

This means that in order to recruit a disabled employee, or retain one in employment who has become disabled whilst in work, to comply with the law, you may need to make reasonable adjustments to enable a disabled person to carry out a particular job, so that they are not disadvantaged. It is unlawful discrimination if an employer does not make 'reasonable adjustments' to alleviate disadvantages suffered by a disabled employee. 

In determining whether it is reasonable for an employer to take a particular step in order to meet the requirements of the Act, particular regard will be given to the extent to which it is practicable for the employer to take the steps, in light of the employer's financial and other resources. 

As a small business, what reasonable adjustments should we be considering for our disabled staff? 

For small businesses operating on tighter margins and with a smaller workforce, the costs of adjustments and the availability of resources can make the question of implementing adjustments for a disabled employee more challenging. A small business is less likely to have an HR department that can advise the employer as to their legal duties. However, you should be mindful that the law only requires you to put in place adjustments that are reasonable in the circumstances. 

The legal duty to make ‘reasonable adjustments’ is about removing barriers in the workplace for people with disabilities so that they can perform to their full potential, where those adjustments would both remove the disadvantage to the employee and are reasonable for the employer to make in the circumstances. You must also ensure that the appropriate line managers are made fully aware of the adjustments being made. Poor communication can lead to you failing in your duty. 

Some examples of reasonable adjustments are: 

• Altering the person's working hours 
• Altering the person’s role, or aspects of their role 
• Allowing additional breaks during the working day 
• Allowing absences during working hours for medical treatment 
• Giving additional training 
• Getting special equipment or modifying existing equipment 

Many adjustments will not incur any additional costs, such as raising or lowering pieces of furniture or allowing someone to use a car parking space.  

What is 'reasonable' depends on the individual circumstances of the case and the size and resources of the employer. In other words, an adjustment would have to be practicable, effective and within the scope of the employer's financial and human resources. 

In determining whether the adjustment is reasonable to make, you should consider: 

• if taking any particular step or steps would be effective in preventing the substantial disadvantage; 
• the practicability of the step; 
• the financial and other costs of making the adjustment and the extent of any disruption caused; 
• the extent of your financial or other resources (bearing in mind your business size); and 
• the availability of financial or other assistance to help make an adjustment 

The Equality and Human Rights Commission has provided examples of reasonable adjustments in practice. 

What is Access to Work? 

The most significant financial support for small business employers comes in the form of Access to Work, which is a labour-market intervention that provides grants in England, Scotland and Wales which can be used to pay for practical support for staff that have a disability, health or mental health condition. The types of support covered by Access to Work grants include the purchase of special equipment, a support worker to help disabled staff members in the workplace, and fares to work for staff who cannot use public transport.  

Access to Work is provided where someone needs support or adaptations beyond the reasonable adjustments which an employer is legally obliged to provide under the Equality Act. Access to Work will not pay for reasonable adjustments. These are the changes employers must legally make to support their disabled workers to perform their roles. 

Businesses with up to 50 employees do not have to contribute towards the cost of Access to Work grants, making it a viable and attractive option for smaller businesses thinking of employing a disabled person who may require this level of support. There is detailed guidance for employers on the government website. 

What can I do to make the recruitment process more accessible to job seekers with disabilities? 

• You must provide information about the vacancy in alternative formats (for example, large print) on request if this is reasonable. 
• You must accept applications in alternative formats (for example, electronically) where possible. 
• Advertise widely to reach as many applicants as possible, using free to access platforms. Scope has curated a list of disability job sites where people can find disability confident employers.  
• Consider stating in the job advertisement and job application form that you welcome applications from people with disabilities or impairments. 
• Be understanding that what might be seen as poor grammar may actually be an access issue for someone with dyslexia, for example. 
• It may be a reasonable adjustment to allow a disabled job applicant extra time to complete a recruitment test or other assessment. You should also consider if it would be a reasonable adjustment to modify the form of the test, for example putting it in audio, Braille or a large print format. 
• Ask on the job application form and before the job interview if the applicant requires any adjustments to the recruitment process or interview, bearing in mind that some applicants may have a ‘hidden disability’, such as a neurological impairment, so it won’t always be obvious.  
• It is important not to assume that because someone is disabled or has additional needs that they automatically can or can’t do certain things. You should ask, rather than assume, what adjustments are required in light of any disclosed disability or health condition.  

You may choose to participate in the ‘Offer an interview’ scheme, which is a commitment made by employers to offer interview to all disabled applicants who meet the essential criteria for an advertised job. This forms part of the UK Government’s Disability Confident scheme. Employers participating in the Disability Confident scheme can choose to offer interviews to all disabled applicants who meet the minimum criteria for an advertised job. The scheme has three different levels of accreditation, dependant on the level of commitment the employer is able to make, and you can sign up voluntarily.  

When recruiting, remember that you are assessing whether the applicant has the abilities, skills, transferrable skills or experience to do the role you are recruiting for. In this case of a disabled job applicant, this should be assessed in the light of any reasonable adjustments that can be applied to the role.  

Does a job applicant or employee have to tell me if they have a disability? 

No, they don’t.  It is your employee’s/the job applicant’s choice to disclose their disability but by encouraging applicants and employees to be open about things that may be affecting them, you will encourage a happier and more inclusive workforce.  

You cannot simply turn a blind eye to signs that your employee may be disabled, as the duty not to discriminate and the requirement to make reasonable adjustments for a disabled worker applies where you could reasonably be expected to know that a worker is a disabled person and is - or is likely to be - at a substantial disadvantage as a result.  

This means doing everything you can reasonably be expected to do to find out, such as talking to the employee in private, if you notice, for example a dip in their job performance, or if they are talking a lot of sick leave, to find out the reasons for this pattern. 

How can I manage the potential disruption of ill-health related absence? 

By monitoring absence levels, establishing absence patterns and addressing problems at an early stage, including putting in place reasonable adjustments for those that require these, you can better manage the potential disruption on your business of high levels of absence.  

“Our experience is that small business employers, like most employers, do struggle to manage both persistent, intermittent short-term absence and long-term absence among their staff,” says Hannah Thomas, employment solicitor at FSB Employment Protection.  

“This is one of the top category of calls we speak to FSB members to provide advice on, on the employment advice line. As well as assistance via the legal advice line, we have a number of template documents available in the employment section of the FSB Legal and Business Hub for managing short-term and long-term sickness absence and for documenting agreed reasonable adjustments,” adds Hannah.  

When is it unlawful to discriminate against an employee because of something arising from their disability, such as poor work performance or a high level of sickness absence? 

It is always unlawful to treat a disabled employee less favourably because of their disability. This is known as ‘direct discrimination’ and can never be justified in law. Alternatively, an employer discriminates against a disabled employee if it treats them unfavourably not because of their disability, but because of something arising in consequence of their disability. Examples of what might be deemed as “something” arising in consequence of a disability could be: 

• poor work performance (e.g., completing tasks too slowly, or with mistakes) 
• a poor attendance record 
• requiring regular toilet breaks 

If a disabled employee is dismissed because of the “something” (issue) which has arisen from their disability, the act of discrimination can be objectively justified, if the employer can show that the treatment is a proportionate means of achieving a legitimate aim. An example of when dismissal of an employee due to poor performance which has arisen due to a disability could be justified, is where the employer has put in place reasonable adjustments, but over a period of time the work performance has still not improved to a satisfactory level. Prior to dismissing an employee, employers should always take legal advice and follow a fair process, ensuring that they avoid unlawful discrimination at each step. 

Can employers be liable for discrimination by their staff? 

Yes, they can. If other employees, rather than the employer as such, discriminate against an employee, the employer may be held vicariously liable whether or not it was done with the employer’s knowledge or approval. However, an employer can avoid liability for harassment or discrimination carried out by its employees if it can show it took all reasonable steps to prevent it from taking place. This includes the implementation and enforcement of appropriate equal opportunities and anti-harassment policies, with training on those policies having been provided on a regular basis to individual employees and managers. 

The Employment Appeal Tribunal has made it clear that employers can only rely on the statutory defence if they've provided regular and sufficient training on discrimination issues. They may also have to repeat training if prior training was ineffective or has been forgotten.  

Employers will only be able to avoid liability for discrimination by their staff or managers if they can provide evidence that they took reasonable steps to prevent discrimination from occurring in the workplace and by demonstrating that there weren't any other reasonable steps they could have taken to prevent it.   

It's not enough by itself to have a policy on equality and preventing discrimination, however. Staff must understand the policy including who it protects, what staff can and can't do, how to complain if they are being harassed or bullied by other members of staff and how their employer will deal with any complaints (e.g., by raising a grievance under the employer’s grievance procedure). This can be achieved by providing initial training and refresher training.   

Where can I find further guidance? 

• ACAS has guidance for employers of disabled people, which can provide staff and managers in your small business with practical advice on the best way to work with, manage and support disabled staff members. 

• The Government website has guidance on employing disabled people and people with health conditions, including advice on specific conditions. 

• FSB’s 24/7 legal helpline offers advice to FSB members on a range of legal issues, including the requirements around reasonable adjustments in the workplace for disabled employees.