10 Jun 2014

Employment

Discrimination in the workplace

There are over 6.9 million people of working age who are disabled in the UK. This represents approximately 19% of the working population. The Equality Act 2010 is the most recent piece of legislation providing protection to employees with disabilities.

Damages for discrimination or harassment have no statutory cap, unlike an award for an unfair dismissal. Damages may also be awarded for injury to feelings and personal injury, if this can be linked to the discrimination. The potential for a high award is clear and should be avoided. Prudent employers should ensure that they are familiar with the framework of protections afforded to disabled employees.

The basic principles of the legislation are simple: employers should not, either directly or through their rules of practices, cause someone with a disability to be treated less favourably than someone without that condition. When an employee, or prospective employee is identified as having a disability, an employer has a positive duty to make reasonable adjustments to their role or the working environment as a whole, to remove or reduce any impact that their disability has on their ability to undertake the work.

What does this mean on a practical level? Direct discrimination is the easiest concept to appreciate. If an employer treats an employee differently because of their disability or a characteristic relating to it, they act unlawfully. This essentially means the test is about comparisons – an employment tribunal will compare the employee with the disability, to a sufficiently similar person without the disability, and determine whether there has been unfavourable treatment.

For example, Uninformed Inc. decides not to employ John who suffers from a mental health problem as an IT analyst. John is better qualified and has more relevant experience than the person appointed. Uninformed decides not to appoint John because it is concerned about John’s mental health history. However, there is no evidence that John’s condition affects his ability to work. In this case there is direct discrimination as John has been treated unfavourably compared to the person appointed because he is disabled. There would be no discrimination in this scenario, if John had less experience and inferior qualifications to the person appointed, and the employer made the appointment because the successful candidate was the best person for the job.

Indirect discrimination through practices or rules, which apply to staff as a whole, will be considered discriminatory if they would cause someone with a disability to be more disadvantaged. An example might be Uninformed Inc’s policy of a “hot-desk” whereby staff share desks and move around day to day. This may inadvertently cause Jenny, a wheelchair user with a physical disability to suffer a detriment by having to move unnecessarily to a desk not modified for her needs as a wheelchair user.

In respect of justifying a rule, the above example would be difficult if not impossible to justify and indeed in such a case, someone with a physical disability would need to be exempt from such practices. Not requiring Jenny to move and provided a modified desk, are good examples of an employer making reasonable adjustments. Employers are required to make reasonable adjustments to ensure disabled employees are not placed at a disadvantage by their disability. This type of positive action in favour of employees with disabilities in not unlawful and is in fact employers are under a positive obligation to make reasonable adjustments.

Uninformed Inc would be able to justify not appointing a person to a role if that person’s disability precludes them from being able to undertake the essential part of a job role. If John’s mental health problems were so serious he could not perform a role, Uninformed Inc, despite treating him less favourably because of his condition, could justify not appointing him to the role.

It is entirely possible to discriminate against a disabled worker unintentionally through the implementation of polices. Employers must ensure regular reviews of all internal policies and also to ensure an open dialogue with staff members to avoid unintentional discrimination. It is far less likely that an employer who listens to their staff will find themselves on the wrong end of a discrimination claim as they will have the opportunity to react to any perceived discrimination and to address it.

The duty to make reasonable adjustments to assist someone with a disability arises at the very beginning of the relationship with a potential employee. An employer has a duty to enquire as to any reasonable changes that may be made to an interview process, to accommodate any disability. For example, an applicant with hearing difficulties might need to be interviewed in a room with a hearing loop and with seating arrangements that enable the person to lip read.

An employer will only have a duty to make reasonable adjustments where they are aware of a disability. At recruitment stages, employers have to be very careful about asking health related questions and indeed it is only lawful to do so in limited circumstances. When inviting candidates to attend an interview, employers should make enquiries as to whether the candidates require any reasonable adjustments at the interview stage.

Sadly employees may become disabled while employed. This could be as a result of an acute injury or serious illness. In these obvious cases, the employer will have an obvious point of reference. In degenerative diseases where there is no definite point of disability, an employer should look to medical evidence to firstly establish the existence of a disability and also to look at adjustments. Occupational health providers are experienced at looking at ways of achieving suitable and reasonable changes. Again, a dialogue with the employee can be invaluable in understanding what changes are required. The duty is, however, on the employer, once a disability is established, to consider what changes are needed and the employee’s input, which should be sought, cannot be relied upon.

It is not merely senior level staff, expressly acting on behalf of a company who need to be aware of such legislation. Employers can be vicariously liable for the discriminatory acts of its staff. It is of paramount importance that staff are trained and monitored to ensure they manage appropriately, for example, all staff involved in recruitment, training and the day to day management of staff should receive equal opportunities training.

If an employer can show that it took reasonable steps to make their employees aware of potential discriminatory acts and how to avoid them, then it will be better placed to defend itself from liability of the actions of its own employees.

Employers must also be aware that under the Equality Act 2010 that they can also be liable for 3rdparty harassment of an employee with a disability. If an act of harassment occurs, an employer must take reasonable steps to prevent it happening again.

The Equality & Human Rights Commission have released a Code of Practice covering the Equality Act 2010 and its practical application to the workplace – the Code is invaluable to all employers and contains a number of examples of common place scenarios which many will find useful to refer to.

All employers should make sure they are informed and that key personnel are trained to manage firmly but with sensitivity. HardingEvans can provide bespoke training packages to assist employers navigate the practical and legal aspects of managing difficult employment issues.

Contact Daniel Wilde today on 01633 244233 or email wilded@hevans.com

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