FAQs: Disability

Below, our Employment Law solicitors answer employers’ questions on the law relating to disability at work.

Are you allowed to ask job applicants about their sickness record?

No. You must not ask about health and sickness when deciding who to recruit – but you are allowed to ask questions in order to:

Establish whether the applicant is able to undergo an assessment, and if they are not, to decide what reasonable adjustments you can make to ensure that the recruitment process is fair. For example, you can ask whether the applicant is able to complete a written test
Establish that the applicant is able to carry out the main functions of the job
Monitor diversity amongst the applicants
Decide whether to positively discriminate

It is for you to show that any questions you ask are justified.

A question about the applicant’s number of sick days would not normally be justified.

Does your employee’s disability mean they are entitled to reasonable adjustments?

If your employee is considered to be disabled as set out by the Equality Act 2010, and if you know about this, or ought to have known, then you are required to make reasonable adjustments to help your employee at work.

See our factsheet on disability and reasonable adjustments to find out more.

You have an employee who is dyslexic. Are they protected under the Equality Act 2010? What is the test?

Your employee could be disabled if their dyslexia is so severe as to have a substantially adverse effect on their ability to carry out day-to-day activities. Reading would be a day-to-day activity as well as a work activity. If your employee has mild dyslexia this might not result in their disability being substantially adverse enough to meet this threshold.

You think one of your employees might be disabled. Should you make a referral to Occupational Health to assess whether you should make reasonable adjustments?

It is sensible for you to arrange an assessment, particularly if it is unclear whether your employee is disabled under the Equality Act. It is best practice to refer employees to Occupational Health if, for example, they have been off sick from work for some time, or if they have a long term health problem as you will need to know the expected prognosis.

The Occupational Health specialist will give you advice on how to make a referral. For example, they might have a specific form for you to complete and a list of information or documents they require. It is common for Occupational Health specialists to request job descriptions.

When making a referral to Occupational Health you should obtain your employee’s written consent and also provide them with a statement of their rights.

An Occupational Health adviser might be a nurse or a doctor. They will talk to your employee about their sickness and how it affects their work. The specialist should produce a report stating whether in their opinion your employee might be disabled and what (if anything) they believe you as the employer should be doing to support your employee at work.

What is the Occupational Health adviser likely to ask your employee?

This depends upon why you have made the referral, but in most cases the Occupational Health adviser is likely to ask your employee about their current illness:

What their symptoms are
How long they have lasted
What medical attention they have sought
Whether they are taking any medication or receiving any treatment
How much longer the illness is likely to last
When your the thinks they will feel able to return to work or continue working
Whether the employee feels that their employer should be doing anything to support them

Is your employee entitled to see their Occupational Health report before you do?

Yes. Employees are entitled to see the report before it is sent to you and they are entitled to suggest changes, but not insist on them. Employees can refuse to allow the Occupational Health physician to disclose their report to you, however this is rare.

Occupational Health have recommended adjustments. You are happy to make them but it will take time. Is this a concern?

You are required to make reasonable adjustments within a reasonable timescale of receiving the report.

It is usually advisable to invite your employee to a meeting to discuss the Occupational Health report and explain what you are doing to put in place the adjustments. If this is going to be a longer process then you can explain to your employee why this is the case, and try to agree timescales. Until you put in place the adjustments, your employee may need to be signed off sick or given amended duties.

What sorts of adjustments can you be expected to make?

Adjustments can take three forms:

Firstly, you must take reasonable steps to provide:

Auxiliary aids to assist disabled employees
To change the physical features of the workplace where these place disabled people at a disadvantage
To make other adjustments where there is a “provision, criterion or practice” which could place a disabled employee at a “substantial disadvantage”, in comparison to non-disabled employees

In those circumstances, the law requires you to “take such steps as it is reasonable” to avoid that disadvantage so that your employee can continue to work. Reasonable adjustments can therefore include:

Allocating your employee’s duties that they struggle to perform because of their disability to other employees
Changing your employee’s days or hours of work
Changing your employee’s place of work
Allowing more time for your employee to complete certain tasks or parts of their role
Allocating other employees to assist your employee

Whether a particular adjustment is reasonable depends upon all of the circumstances.

Can you refuse to make reasonable adjustments?

If you are concerned that the cost of an adjustment is too high, or it would be too difficult to implement in practice, then you should seek legal advice to see whether the adjustment really is a “reasonable” one that the law requires you to make.

However, if an adjustment is reasonable then you cannot refuse to make it. If you were to refuse to make reasonable adjustments, then your employee could bring a claim for discrimination. They might also resign and claim constructive dismissal.

One of your employees is going part-time as a reasonable adjustment. Do you have to enhance their pay?

No, not unless you have already agreed to do so, or there is a policy in place allowing for enhanced pay. The purpose of reasonable adjustments is to allow disabled employees to be able to stay in work, it does not guarantee full pay.

Can you discipline a disabled employee for absences?

If your employee’s absences are due to their disability then you might be at risk of a discrimination claim if you issue warnings. You must be able to show that any disciplinary sanctions are “objectively justified”, taking into account the frequency and duration of absences and earlier sanctions. Any employer wishing to discipline disabled employees for issues relating to their sickness should seek legal advice.

Contact us today on 01273 609911, or email info@ms-solicitors.co.uk to find out how we can help you with your case.

Print this page