If one has a disability, they are entitled to equal treatment in the workplace.
If, for example, an employee has epilepsy, he/she is entitled under the legislation to be provided with what is termed Reasonable Accommodation in the workplace.
What if the employer concludes they could not recruit or retain an individual based on the capability of the person for the position by reason of having the disability ?.
There is a defence for an employer who has been presented with a complaint of discrimination based on disability. Unlike gender or race, disability can be a causative factor to not recruit or retain a person for an employer.
S. 16 of the Equality Act(as amended) states:
Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
This does not mean an employer can sit there from the comfort of their desk while making an immediate decision on this. An employer has a positive duty to go through a process of actionable steps to establish if the person can do the work or not.
There is a duty on the employer to take ‘’appropriate measures’’ to enable the person have access and participate in employment.
What are ‘’Appropriate Measures’’ for Employees with a Disability?
‘Appropriate measure’, in relation to a person with a disability —
(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;
Evidently an employer will likely be thinking what if the appropriate measures they need to take to facilitate access to the workplace are a heavy burden financially ?.
S. 16 (3) (b) & (c) state:
(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.
( c) In determining whether the measures would impose such a burden account shall be taken, in particular, of —
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer’s business, and
(iii) the possibility of obtaining public funding or other assistance.
In a well-known seminal case the issue of ‘Reasonable Accomodation’’ arose and the following was stated in that case, which will give employers some guidance on their obligations in this regard, which we have now put into bullet points for ease of reading:
- “This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed.
- However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee’s capacity.
- The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case.
- At a minimum, however, an employer should ensure that he or she in full possession of all the material facts concerning the employee’s condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered.
- The employee must also be allowed an opportunity to influence the employer’s decision. In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration.
- This would involve looking at the medical evidence available to the employer either from the employee’s doctors or obtained independently.
- Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fullycapable.
- The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources. Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions’’.
Disclaimer for this Disability Employment Law Article
Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute. Legal advice should be obtained from a solicitor prior to relying on anything in this article.
Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.