Definition of disability
The definition of disability has nothing to do with whether or not someone is “registered disabled”. It is a legal definition protected by the Equality Act 2010. It covers physical and mental impairments that have a substantial and a long-term effect on the person’s ability to carry out normal day-to-day activities. “Substantial” is always a subjective argument but means more than minor or trivial and “long-term” means that is has lasted or is expected to last 12 months or more. There are also certain conditions that are deemed disabilities, including cancer, HIV and MS.
It is important to note that this is a legal definition and only an employment tribunal can decide categorically whether someone has a disability or not. When assessing if someone has a disability the employment tribunal will always require medical evidence and the opinion of medical professionals.
How do you know if someone has a disability?
It is not always clear whether someone has a disability as it is not always obvious what the condition is and how it affects the individual in question.
Mental health conditions are increasingly common but the effect that they have on an individual varies considerably. It may be that someone frequently has time off sick with the doctor’s note citing “stress” or “anxiety” but there is no way of knowing whether that meets the threshold of disability. As an employer you need to take into account how it affects the individual.
Medical Information
If someone has a health condition that is impacting on work it is normally helpful to obtain a medical report from their doctor. You need the employee’s consent to write to the doctor for a report and the process can take some time but it is normally worth it, particularly if you are considering taking any sort of action to address the employee’s performance or attendance.
When writing to the doctor you can ask for specific information that may give you an idea if the condition would be considered a disability, and you can also ask for information about any adjustments that you might be able to consider.
Reasonable Adjustments
If an employee has a disability the employer has a duty to make reasonable adjustments to make sure the employee is not substantially disadvantaged when doing their job. That can include changing working practices, providing different equipment, allowing them to work more flexibly, making physical changes to work premises, etc.
It is important not to lose sight of the word “reasonable” when looking at adjustments. This takes into account a number of factors, including: the resources of the employer, the extent to which the adjustment would help, the practicality of the adjustment. A medical report may propose adjustments for you to consider, but it may be that they turn out not to be reasonable.
Practical considerations
The duty to make reasonable adjustments only arises if you know, or could reasonably be expected to know, that the employee has a disability. But it is not enough to say that the employee did not tell you they were disabled, you are expected to make reasonable enquiries when there is enough evidence to suggest they may have a health condition.
You can ask applicants about any health issues they may have that could affect their ability to participate in your recruitment process, if that is with a view to make reasonable adjustments to the process. You can also ask new starters about any health issues they may have that could impact on their work, again as long as that is to consider reasonable adjustments.
But note that you are not allowed to ask for medical information at the selection stage unless it is specifically for the purpose outlined above (to make reasonable adjustments to the recruitment process). Another exception is where the nature of the job means there are certain requirements that cannot be addressed by reasonable adjustments, in which case you are able to ask specific questions to check the candidates have the required capability.
If you would like some further advice or assistance with any issues in your work place or place or business, Hewitts have a team of experienced Employment Law Solicitors and a HR professional who can assist. Please contact any of our offices and our teams will be happy to help.
