Discrimination - disability

Discrimination in employment can be a difficult matter for all sorts of reasons.

Some organisations become so politically correct over the whole issue that it is a wonder they ever get anything done.

Other organisations have a culture that is so based on outdated misconceptions such as “that’s woman’s work” or “that person wouldn’t fit in here”, that you wonder how they get away with not being sued on a regular basis.

The bottom line is that laws stopping employers treating people badly because they are women or men, disabled, of a different race or colour or because of sexual orientation or religious beliefs are absolutely vital in a civilised society.

The problem is that these laws, designed to protect, are hugely complicated and becoming more so as time passes. So complicated in fact that I will be looking at the main areas separately starting with disability discrimination.

The Disability Discrimination Act 1995 states that a person has a disability if he or she has a physical or mental impairment which has a substantial and long term adverse effect on his or her ability to carry out normal day to day activities.

From a practical point of view this definition is little short of useless. Quite often the first and most difficult question both employers and workers ask when there is a work/health issue in the workplace is whether the worker is or is not disabled. At the end of the day sometimes only an Employment Tribunal can answer the question.

Employers cannot treat a disabled person less favourably than someone else for reasons connected to the person’s disability unless the employer can show that the less favourable treatment is justified.

For example a disabled woman in a wheelchair applies for a job. She can do the job but the employer thinks that the wheelchair will get in the way in the office. He gives the job to someone who is no more suitable but who does not use a wheelchair. This is probably unlawful discrimination because the employer will find it very difficult to persuade an Employment Tribunal that inconvenience with the woman’s wheelchair in the office is a good enough reason to not employ her.

That being said if the person given the job was the best candidate and that was why the disabled woman was not employed, there would be no discrimination.

An Employer will also be guilty of discrimination if he fails to make a reasonable adjustment to the place of work or the job to accommodate a disabled worker. This may involve the employer having to spend some money. For example an applicant for a typing job is not the best person on the face of it but only because her typing speed is slow due to arthritis in her hands.

If a reasonable adjustment, perhaps an adapted keyboard, would overcome this, her typing speed would not be a good enough reason not to employ her.

There is no limit on the amount of compensation that an employer can be awarded to pay a disabled worker who has been the victim of unlawful discrimination.

What does all this mean in practice?

Generally employers are sympathetic towards workers who become disabled in employment. When this happens employers need to do all that they reasonably can to keep the worker who wants to carry on working in a job. Employers in this situation should never make knee jerk reactions based on stereotypical assumptions. My advice to employers is take advice before you do something stupid because it will be cheaper than taking it afterwards! Advice to workers who are or become disabled is be upfront with your employer. Tell the people who need to know exactly what you think you can and cannot do and what changes within the workplace would help you. Don’t ask for things you would like as opposed to need, remembering that your employer has only got to make reasonable adjustments to help you

Published 27/09/2006.