Disability at work

Running Your Business

Disability at work

By Suki Harrar

Disability Rights UK estimates that around 7.7 million people are disabled, of whom many will not have been born disabled but will have become so during their lifetime.

Of those 7.7m, only half are employed compared with over 80 per cent of people without disabilities. This figure has barely improved in recent years, despite various Government initiatives.

The National Disability Strategy, “a series of practical, tangible steps… to improve disabled people’s everyday lives”, was published in July 2021 to a mixed reaction. Employment is just one of the areas it covers and, although the changes announced were more carrot than stick, they did indicate the Government’s long-term intention to encourage all employers to embrace inclusivity. However, the strategy saw a setback in late January 2022, following a High Court ruling that it was unlawful – not because of the content, but because the content was informed by inadequate consultation with people with disabilities.

CURRENT RULES

The Equality Act 2010 provides the principal legal framework for protecting people with disabilities from discrimination and allows employers to take positive action where necessary. 

The legislation clearly states that it is illegal for an employer to discriminate against anyone on the basis of their disability if they know, or could reasonably be expected to know, that an individual is disabled. The Act defines a disability as “a physical or mental impairment that has a substantial and long-term negative effect on someone’s ability to do normal daily activities.” Substantial means that completing everyday activities, such as getting dressed, takes much longer than it should; ‘long term’ applies to conditions that last more than 12 months. 

Under the Act, an employer has a duty to make reasonable adjustments, at their expense, to accommodate an employee’s disability. This applies at both the recruitment stage and once the person is in employment. This could mean being flexible about how the interview is conducted or inviting the candidate to undertake an ‘in work’ assessment rather than a formal meeting. 

When recruiting, it is unlawful for employers to ask questions relating to disability, unless there is a specific reason for doing so

Once employed, a disabled employee can expect their employer to make reasonable adjustments, if required, such as providing specialist equipment, making changes to the working environment or working practices, such as the hours they work. However, these adjustments must be proportionate and will often depend on the size and type of employer: some companies will find it much easier to make adjustments than others. 

Employees can apply for an Access to Work grant, but these are subject to eligibility criteria and do not cover funding for things that should be considered ‘reasonable adjustments’. Access to Work also provides a mental health support service.

It is critical that an employee tells their employer or prospective employer about their disability, particularly if it may not be immediately obvious. If an employer can prove that they could not reasonably have known the employee was disabled, any discrimination claim is likely to fail. 

When recruiting, it is unlawful for employers to ask questions relating to disability, unless there is a specific reason for doing so, such as the need for reasonable adjustment as part of the recruitment process or for disability monitoring purposes. There are also specific rules around recruitment advertising, which must be accessible to everyone who could do the job.

THE NEW STRATEGY

One of the criticisms of the Government’s strategy is that many of the actions identified are not new and, of those that are, commitment is confined to further consultation or updating existing guidance. Nonetheless, there are some tangible actions: 

  • Advice Hub: a collaboration between the Department for Business, Energy and Industrial Strategy and ACAS, this  is a central repository of information and advice on employment rights for disabled people, including duties around reasonable adjustment and flexible working. Details at here.
  • Access to Work Adjustment Passports: the Access to Work scheme helps disabled employees with additional support that falls outside employers’ responsibilities. By digitising the service, the Department for Work and Pensions is piloting an Access to Work Adjustment Passport, initially with school leavers, those leaving the armed forces, freelancers and contractors. The intention is to remove the need for repeated disability assessments and smooth the transition into, or between, employment. It is designed to give employers greater insight into disability, and the adjustments they can make to help more disabled people into the workplace
  • Other initiatives: the Government has consulted on the introduction of a statutory right to flexible working and the introduction of one week’s unpaid carer’s leave. It is consulting (until 25 March) on making the voluntary reporting framework mandatory for employers with 250 or more employees. Encouraging more employers to engage with the Disability Confident Scheme is also on the agenda. 

Suki Harrar is an employment law specialist

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