Disability discrimination and reasonable adjustments in the workplace

04 March 2019

Approximately one in five of the working population has a disability according to statistics produced by the Department of Work and Pensions. In this podcast we focus on some of the issues concerning the working population with disability and how employers should respond both in terms of encouraging an inclusive workforce and making reasonable adjustments at work. We cover the Government's position, guidance for employers, the triggers for making reasonable adjustments and how employers can support employees.




Subscribe

Employers looking to encourage an inclusive workforce and make reasonable adjustments for those with disabilities need to understand how to respond to issues that may arise to ensure they are providing the appropriate level of support for their employees. They need to be aware of the Government's position and guidance for employers, the triggers for making reasonable adjustments and action they can take to support their employees. There is still a wide gap between those in work without a disability compared to those in work with a disability. In 2017, 80% of those without a disability were in work, in comparison to 50% of people with a disability being in work.

What information is there on the extent of disability in the workplace?

There are a wide variety of statistics surrounding disability in the workplace, approximately 1 in 5 of the working population has a disability according to statistics produced by the Department of Work and Pensions and only 17% of people are born with a disability, leaving 83% of people acquiring a disability later in life according to the Papworth Trust. Approximately one million disabled people entered the workforce between 2013 and 2018 and there is action being taken to increase those numbers.

The importance of the issue is clear, especially when CIPD research shows that the great business benefits disabled employees bring rank higher than other groups in a number of key areas including bringing new and innovative ideas and having a good work ethic.

What is the latest Government position on disability in the workplace?

There have been various initiatives over recent years to support disability in the workplace. In 2013, David Cameron introduced Disability Confident and the scheme was reintroduced quietly by the DWP back in 2016, with over 10,000 employers signed up. The aim is for the scheme to provide free access to guidance for employers, peer support and specialist events. There are three levels to the Disability Confident scheme, Disability Committed, Disability Confident Employer and Disability Confident Leader. In November 2017, the Government produced a paper 'Improving Lives, the Future of Work, Health & Disability' and at the same time they published their plans to target the workplace. The aim and objective is to see 4.5 million disabled people in employment by 2027 by breaking down barriers to get those people into work.

Is the plan to extend fit-note certification beyond GPs to other healthcare professionals a solution?

Extending fit-note certification beyond GPs to other healthcare professionals is one solution but when looking at some of the commentary in the area it becomes quite clear that there are issues about employer attitudes towards recruiting and retaining employees with disabilities. The CIPD's health and wellbeing work survey from 2018 found that knowledge and confidence amongst line managers was one of the most common challenges to managing employees with a disability in the workplace. A wide variety of strategies is needed to get to a position where this target can be achieved.

What is voluntary reporting on disability in the workplace?

Voluntary reporting on disability in the workplace is a new initiative. Details were published in November 2018 and employers that have dealt with gender pay reporting will recognise a similar structure. The concept is that employers with over 250 employees would be encouraged to voluntarily report their numbers regarding disabled employees, with smaller employers welcome to report their figures as well. There are two aspects to the reporting and again comparisons can be made to gender pay reporting. Part A is essentially the provision of a narrative to explain the activities of the organisation in relation to recruitment and retention of disabled people, which would include:

  • the numbers of employees who have disclosed disability;
  • the disability policy in the workplace or other policies that are in place;
  • the networks that an employer might have set up and support groups that are available;
  • reasonable adjustments; and
  • employee engagement scoring.

Part B is about reporting the percentage of individuals within the workplace who consider themselves to be disabled who may have a long term health condition; and that could be physical or mental. Obviously, that data can be reported but it needs to be accurate, reliable and the employer needs to be able to provide an explanation as to the collection methodology.

Again, in November 2018, the Government launched some guidance for line managers surrounding recruiting, managing and developing people with disabilities or health conditions. This really feeds into the CIPD survey. It's a tool to help managers gain that confidence to understand conditions and to understand how they might manage people with a disability in the workplace. All of this is geared towards creating an open and supportive culture around managing health in the workplace and managing the recruitment and retention of people with disabilities.

What other help is there for employers on best practice on disability in the workforce and making reasonable adjustments?

The DWP has published guidance which deals with the cost of adjustments and how you might manage people. Those costs, in many cases, are quite low, sometimes to the surprise of employers. There is also guidance in the form of the employment statutory code published by the Equality and Human Rights Commission which the Employment Tribunal can take into account. There is ACAS guidance across the board in relation to managing disability in the workplace. There are, of course, also a wide range of charities available that operate helplines and support networks for employers.

When is that duty to make reasonable adjustments under section 20 of the Equality Act 2010 triggered?

Failure to make reasonable adjustments is discriminatory and there are three parts to the trigger. The first thing that any employer needs to look at is whether or not the way in which the organisation operates places somebody with a disability at a substantial disadvantage compared to somebody who doesn't have that disability. Employers also need to look at the physical features of the workplace and whether the absence of an auxiliary aid, such as a support worker or equipment, is also placing the individual at a disadvantage. Once the employer has examined those three areas then the key is to determine what they need to do.

In some cases it will be obvious that somebody has a disability and if an individual has shared that information with their employer then clearly the employer will be under an obligation. The trickier part comes where the legislation covers the employer being in a position where they ought reasonably to have known about the disability, which can be difficult to assess.

What is clear about the process of considering reasonable adjustments in the workplace is that it applies across the board, it applies at recruitment, it applies whilst you have somebody in employment and, for obvious reasons, there is no definitive list of reasonable adjustments because everybody's needs will be different.

What is a reasonable adjustment?

Reasonable adjustments are always going to be fact specific, we can't make generalisations or assumptions. In terms of examples, it may equipment that helps an individual but it can be also be things like adjusting somebody's hours and not making an assumption that they can work in a long hours culture. It might be about reducing somebody's workload where that actual workload is creating a disadvantage. These are all reasonable adjustment examples.

It could also be a situation where somebody is absent, and even disability related absence doesn't necessarily have to be discounted, but it is not very clear from the reasonable adjustments case law where you actually draw the line. There is also an issue about considering whether or not protecting pay may actually be a reasonable adjustment in itself, not in every case, but in some cases that may be appropriate.

What other ways are there for employers to support employees with disabilities?

There are a wide range of ways in which employers can support an employee with a disability in the workplace. Ideally the first would be around involving HR to consider recruitment initiatives so you can take steps to identify the talent pool that is out there from which you can seek to choose people with disabilities and bring them into the workplace at your organisation.

It could also be around training line managers and if managers lack confidence and knowledge, then HR has a really important part to play in helping them understand and deal with individuals with a disability.

There are also things like occupational health instructions, making sure that the right questions are being asked and ensuring that follow up questions are being addressed, as well as tracking adjustments to make sure that there is a paper trail in place. There are many examples in the reasonable adjustments case law in this area that clearly show that if employers had had a paper trail in place then some of the issues that had arisen in those cases would never have arisen.

Employers may also want to consider things like passport arrangements which is a portable document they can use so they do not need to explain their condition and their particular adjustments, for example when moving around the organisation.

HR can provide great support in helping employees use the Access to Work scheme. While this needs to be accessed directly by the employee, the employer can provide support in this process. They can also identify how they might support the employee when it comes to implementing adjustments in terms of practical support, for example a workplace buddy, which can be really helpful to the employee. It is worth highlighting that Access to Work is described as the Government's best kept secret. From April 2019, there will be an increase in the annual grant rising from £57,200 to £59,200. There is support out there and that can range from support for equipment, and support workers to payment for taxis when somebody cannot use public transport.

There will be other things that employers might wish to consider to help reach the Government's objective to get 4.5 million disabled people into the workplace by 2027, such as breaking down the barriers in the workplace, breaking down stigma, setting up networks so people can talk to one another and setting up networks so that you can tap into the knowledge and experience from other organisations within a particular sector. Finally, employers should really consider becoming a Disability Confident Employer.

There are lots of practical suggestions that are pro-active, simple and quite cheap to encourage solutions.

If you would like to discuss any issues relating to disability in the workplace or reasonable adjustments please do feel free to contact Anna Fletcher.


NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.