Providing for disability in the workplace: What you need to know
It's important that every employer is up to date on legislation, particularly when it affects staff. Read our guide on disability or you could be in trouble
What counts as a disability in the workplace? It’s an area of employment law that all employers – large and small – really need to be aware of, but can be really tricky to understand.
There are many common illnesses that – unbeknownst to many small employers until it’s too late – could well count as a disability in the workplace. So, if you have any doubt as to what constitutes disability, we recommend you read on…
How is disability defined?
Under UK law, someone is defined as disabled if they have:
“a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on [their] ability to do normal daily activities.”
Now, for many small employers, this explanation is about as close to a foreign language as you can get.
So, to translate; it means is that if your employee has a mental or physical health issue which makes it difficult to do part or all of their job, they could be classed as having a disability in the eyes of the law.
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It’s not quite that simple though…
A recent case at the Employment Appeals Tribunal (EAT) highlights why the definition of a disability is a real grey area. In the case of Banaszczyk v Booker Ltd the EAT ruled that lifting heavy loads of 25kg constituted a daily activity. Something that many might ordinarily disagree with.
Mr. Banaszczyk was employed to lift and move goods in a warehouse. He claimed disability discrimination after his employer dismissed him for incapacity as he had a long term back condition that limited his ability to carry out this work.
It turned out that the tribunal agreed with him. Why? The judge explained that lifting heavy loads is a normal daily activity for many workers throughout the UK.
However, this is clearly not ‘normal’ for every employee in the UK. And what is not clear is how often someone would have to undertake an activity for it to become ‘normal’.
Defining disability is a minefield. And if you’re not careful you could very easily fall foul of employment law. We suggest that if you’re ever uncertain about whether an employee’s problem could be considered a disability then seek help from a qualified HR or employment law professional.
What if I’m not sure if someone’s disabled?
When an employee’s performance drops, and a health or medical issue is mentioned by the employee, this would usually be the time you consider if someone could be considered as disabled in the eyes of employment law. And you must tread carefully.
It’s best to have a meeting with the staff member to discuss the performance issue, and see if they have a mental or physical issue which they believe is affecting their work.
Careful though. Don’t jump to conclusions, and be sure to fully investigate the employee’s reasons before taking action.
Starbucks did just that recently, and found themselves in hot water. Ms Kumulchew, a supervisor in Starbucks, was responsible for taking the temperatures of fridges and water and recording the results. Starbucks accused Ms Kumulchew of falsifying records, reduced her duties and told her to retrain.
She alleged disability discrimination as she suffers with dyslexia and maintained that she had previously told Starbucks about it.
It might not surprise you that at the employment tribunal Starbucks were found to have been wrong in their handling of this, and they were also found to have victimised their employee. Cue a great deal of negative press coverage for Starbucks.
This is a fairly cut and dried example, which is rare. However, if one of your employees ever mentions a health problem that could be a disability you must look to make what are called reasonable adjustments.
What is a reasonable adjustment?
There are many ways that you can make a reasonable adjustment for an employee, depending on the type or severity of their disability.
This could include:
- Making access to your building easier for someone who has trouble walking – e.g. a ramp for wheelchair users
- Changing the equipment they use – e.g. providing a special keyboard for someone with arthritis
- Offering flexible hours to those that are stressed or get tired easily due to a physical or mental disability
- Letting the employee work from home – e.g. if they suffer from anxiety or find it difficult getting to the office because of their disability
- Visually showing an employee how to perform a task, as in Ms Kumulchew’s example. People with Dyslexia have difficulties with words and numbers and find it easier to be shown how to do tasks visually.
These are just some examples of reasonable adjustments. In essence, they are changes that your business can afford to make to ensure the employee is able to do their job effectively, without causing damage or interruption to your business. And what’s considered reasonable can change based on the size of your business.
For example, as a small business you might employ someone who needs a helper through a ‘buddy system’. For smaller employers, this might be too much of a strain on a small number of employees. However, if you are a large business, and have a large number of staff you would be expected to do much more to accommodate and overcome such a problem.
If you can’t make changes, then be sure to have evidence for why it would not be reasonable for you to make them. Logging this can save you a big headache in the future, should you be accused of discrimination.
Disability is certainly a very difficult area for employers, and especially small employers who simply don’t have the time to read up on the specifics of employment law while trying to grow a business.
However, if you tread carefully and are sure to collect evidence that you’ve acted reasonably – and seek help if you’re unsure – then you’ll be going in the right direction.
This article was written by HR software specialist Citrus HR which includes auto-enrolment as part of its service.