Member Article

Many more people are disabled than you think

Disability can prove to be a legal minefield for employers since the 2010 Equality Act has added a new categories to the list of those who can be considered disabled.

The Act says;“A person is disabled if they have a physical or mental impairment which has a substantial and long term adverse affect on their ability to carry out their normal day-to-day activities.”

The previous legislation included a list of “normal day-to-day activities” and the employee had to show that their condition impacted on their ability to carry something on that list. The definition is now applied more widely and vaguely - leaving more scope for problems, of course.

Long-term means any condition lasting more or likely to last for more than 12 months - or terminal.

Anyone with cancer, multiple sclerosis or HIV/AIDS is defined as disabled from the date of diagnosis regarding how it affects them. With mental illness, however, the emphasis is on the impact of the symptoms, and the illness does not have to be well recognised.

Can Obesity be Considered a Disability?

Earlier this month, the Employment Appeal Tribunal in Walker ~v~ SITA Information Networking Computing Limited had to determine whether an Employment Tribunal was right to rule that an obese employee was not disabled because there was no identifiable cause for the numerous medical conditions from which he suffered.

Mr Walker suffered from numerous ailments including asthma, knee problems, diabetes, anxiety and depression, which gave rise to various symptoms as being compounded by his weight of 21.5 stones.

On appeal from the Employment Tribunal, the EAT concluded that Mr Walker was disabled. The EAT held that the focus should not be on the underlying cause of the impairment but on whether there is actually an impairment; the effects of the impairment should not be overlooked merely because the cause cannot be identfied.

It is important to note that the EAT did not accept that obesity, without addtional, is a disability within the meaning of the Equality Act 2010. The fact that an employee is obese does not necessarily mean that they are disabled, though it may make it more likely that they have an impairment, which they may have suffered for a long time and the employee will therefore be considered disabled for the purposes of UK equality law.

The Legal Position

Discrimination on the grounds of disability was introduced by the Disability Discrimination Act 1995.

The new Act adds new forms of discrimination; as well as being direct, discrimination can be indirect, associative and perceptive.

These all outlaw discrimination on the usual grounds of a “protected characteristic” such as race, gender and sexual orientation, as well as disability.

Direct Discrimination

Is treating someone less favourably than another person ecause of a protected characteristic. For example, not recruiting an individual because they are disabled.

Indirect Discrimination

Occurs when a group with a protected characteristic is put at a disadvantage and the company cannot show it to be a proportionate means of achieving a legitimate aim. For example; if the company required all employees to work on the second floor of a building without a lift, then someone who is disabled is unable to access the second floor and hence not allowed to work in that company.

It is also discriminatory to treat someone less favourably because of something connected with their disability. For example; This could be someone making spelling mistakes as a consequnce of their dyslexia. It is only justifiable if the company can demonstrate that it is a proportionate means of achieving a legitimate aim. For instance; to employ only a labourer who is physically fit or a journalist who can spell.

Associative Discrimination

Is treating someone less favourably because they associate with an individual who has a protected characteristic. Someone whose child has a disability would sometimes have to leave work to deal with a problem.

Perceptive Discrimination

Is treating someone less favourably because they have a protected characteristic, whether or not they do. For example, refusing to appoint someone because it is thought that they are disabled and they are not.

The Act also covers Victimisation of someone who has raised a grievance, made a complaint, or is thought to have made a complaint. It can be classed a victimisation to refuse to provide a reference to someone who had made a complaint.

Harassment

Is “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.”

Reasonable Adjustments

The 1995 Disability Discrimination Act requires companies to make “reasonable adjustments” to accommodate disabled employees and to discuss these with them.

“Reasonable” could for instance, include; allocating some duties to another employee; altering hours of work, allowing time off for treatment; altering procedures and making physical adjustments to the workplace.

Recommendations

Only a small percentage of people with disabilities are in wheelchairs and not all disabilities are obvious.

Companies need to train employees to behave responsibly and treat people with respect and dignity.

This article only scratches the surface of this complex subject. More information can be obtained online or by contacting the writer directly via the profile section.

This was posted in Bdaily's Members' News section by Andrew Dane .