FAQs: Disability

1. Are you a “disabled person” under the Equality Act?
2. Do you have a duty to disclose your disability or ill-health condition during the recruitment process?
3. You have received an application form for a new job which asks you how many days’ sick you have had in the past 5 years. Is your prospective employer allowed to ask this question?
4. Can you be refused employment because of your disability?
5. Do you have to tell your new employer about your disability or ill-health condition?
6. What are reasonable adjustments?
7. Does your disability entitle you to reasonable adjustments?
8. Can your employer refuse to make reasonable adjustments?
9. What sorts of adjustments can you expect your employer to make?
10. You think you are disabled. Should you ask for a referral to Occupational Health so you can see if you are entitled to reasonable adjustments?
11. What is the Occupational Health adviser likely to ask me?
12. Are you entitled to see your Occupational Health report?
13. Occupational Health have recommended adjustments but your employer isn’t doing anything about it – what can you do?
14. Does your employer have to enhance your pay if, as a result of reasonable adjustments, you go part-time?
15. Can your employer ignore advice from your GP or occupational health about reasonable adjustments?
16. Can your employer discipline you for your absences if you are disabled?
17. Can your employer treat you less favourably because you are associated or related to somebody with a disability?
18. Have you suffered direct disability discrimination?
19. Have you suffered indirect disability discrimination?
20. What is unfavourable treatment because of something arising in consequence of disability?
21. Have you been victimised because of your disability?
22. Can you take action against your employer because your colleagues or managers have harassed you due to your disability?
23. You work part-time because you look after your elderly disabled father. Recently, you were late for work a few times because it took longer for you to get him up and dressed. You are now being threatened with disciplinary action. Colleagues who have been late because of childcare issues seem be ignored. Surely this isn’t right.
24. Your eyesight has been deteriorating for years and you have recently had the cause diagnosed and was registered as partially sighted. Does this give you any rights at work?
25. You have suffered badly from long term depression in the past and have recently experienced a recurrence and had time off work. In your previous job your employer got a medical report confirming you were disabled under the Disability Discrimination Act. Doesn’t your current employer have to take account of your disability?
26. Your little sister has Down’s syndrome and you are sick of hearing your colleagues calling each other “spastic” and other similar jokey terms of abuse. Do you have to put up with this?
27. You work in a large supermarket putting goods on shelves. As part of your job you have to push heavy trolleys around. You have a bad back and are finding this increasingly difficult. At the end of my shift you can hardly move. What can you do?

Are you a “disabled person” under the Equality Act?

A “disabled person” is someone with ‘a physical or mental impairment and this impairment has a ‘substantial’ and ‘long-term’ adverse impact on their ability to carry out normal day-to-day activities. Long term is likely to last more than one year.

There is no definitive list of what conditions are covered but it includes mental health conditions such as depression and anxiety as well as physical and sensory conditions. Those registered as blind, severely sight impaired, sight impaired or partially sighted are deemed disabled without the need to prove the stages of the definition.

HIV, cancer and multiple sclerosis automatically qualify from the point of diagnosis.

Do you have a duty to disclose your disability or ill-health condition during the recruitment process?

No, but it may be necessary for you to do so if you require reasonable adjustments to any interview or assessment process.

You have received an application form for a new job which asks you how many days’ sick you have had in the past 5 years. Is your prospective employer allowed to ask this question?

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

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

It is for the employer to show that any questions they ask are justified.

A question about your number of sick days would not normally be justified.

Can you be refused employment because of your disability?

In most cases it is unlawful for an employer to discriminate against a disabled person in the selection process.

All reasonable measures should be considered to allow a disabled person to access the workplace and to do the job in question in the same way as non-disabled person. However, there may be specific requirements of certain roles that prevent a disabled person from fulfilling the role, for example requiring an airline pilot to have good eyesight.

Do you have to tell your new employer about your disability or ill-health condition?

There is no duty on you as an employee to disclose details of your disability to your employer. However, you should note that an employer is only under a duty to make reasonable adjustments once they are aware or ought reasonably to have been aware that you have a disability.

What are reasonable adjustments?

Your employer has a duty to make reasonable adjustments in the workplace to ensure that a disabled person is able to access employment in the same way as non-disabled persons. Examples of reasonable adjustments could include making adaptations to the physical workplace premises including the worker’s specific workstation, providing a parking space closer to the office, allowing the worker to work flexible hours, redeploying a worker to an alternate role or providing a reader or interpreter.

Does your disability entitle you to reasonable adjustments?

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

For more information please see our factsheets on disability and reasonable adjustments.

Can your employer refuse to make reasonable adjustments?

A failure to make reasonable adjustments is a form of disability discrimination. However, an employer can refuse to make specific adjustments if it would not be reasonable for them to do so. What is reasonable will depend on a variety of factors, such as the size of the employer and the finances available to the organisation as well as the complexity of the adjustments requested. If you believe that your employer is refusing to make reasonable adjustments then you should raise a grievance and seek legal advice.

What sorts of adjustments can you expect my employer to make?

Adjustments can take three forms:

Firstly, your employer must take reasonable steps to provide

• Supporting 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 you (as a disabled person) at a “substantial disadvantage”, in comparison to non-disabled employees

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

• Allocating to your colleagues any duties that you struggle to perform because of your disability
• Changing your days or hours of work
• Changing your place of work
• Allowing you more time to complete certain tasks or parts of your role
• Allocating other colleagues to assist you

Whether a particular adjustment is reasonable depends upon all of the circumstances. See our factsheet on reasonable adjustments.

You think you are disabled. Should you ask for a referral to Occupational Health so you can see if you are entitled to reasonable adjustments?

It is sensible for you to have an assessment particularly if it is not clear whether you are disabled or not, under the Equality Act. Your employer might also refer you to Occupational Health as a matter of best practice. For example, if you have been off sick from work for some time, or if you have long term health problems.

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

When your employer makes a referral to Occupational Health they should obtain your written consent and also provide you with a statement of your rights.

What is the Occupational Health adviser likely to ask you?

This depends upon why you have been referred but in most cases the Occupational Health adviser is likely to ask you about your current illness:

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

It is also sensible to tell the Occupational Health adviser how your illness is affecting your ability to carry out day-to-day activities. This will lead the Occupational Health specialist to assess more accurately whether she or he thinks you are disabled.

Are you entitled to see your Occupational Health report?

Yes. As an employee you are entitled to see the report before it is sent to your employer and you are entitled to suggest changes, but not insist on them. You may refuse to allow the Occupational Health physician to disclose the report to your employer. For example, if it is factually incorrect. However, it is usually the case that adviser would check and amend.

Occupational Health have recommended adjustments but your employer isn’t doing anything about it – what can you do?

Your employer is required to make reasonable adjustments within a reasonable timescale from receiving the report.

You should ask your employer for a meeting to discuss the Occupational Health report and ask them to confirm what they are doing to put in place the adjustments. If your employer is not listening to you, or if your employer is acting with undue delay, then you should raise a grievance.

Does your employer have to enhance your pay if, as a result of reasonable adjustments, you go part-time?

No, not unless your employer has agreed to do this, or has a policy saying that they must do so. The purpose of reasonable adjustments is to allow disabled employees to be able to stay in work – it does not guarantee full pay.

Can your employer ignore advice from my GP or occupational health about reasonable adjustments?

Your employer should consider any advice from your GP or occupational health as to the adjustments which would be necessary to address the disadvantage you have. They might want to commission a report form a specialist in your disability for a prognosis. Ultimately it is their call as to what is reasonable for the company to accommodate and, if you disagree, ultimately it would be up to an Employment Tribunal to determine what was reasonable.

Can your employer discipline me for your absences if you are disabled?

If your absences are due to a disability then your employer might be at risk of a discrimination claim if it issues warnings. Your employer must be able to show that any disciplinary sanctions are “objectively justified”, taking into account the frequency and duration of your absences and earlier sanctions.

Can your employer treat you less favourably because you are associated or related to somebody with a disability?

No – you can not only be discriminated against because of a disability you have but you can also suffer discrimination ‘by association’ if you are treated less favourably as a result of being associated with someone who has a disability.

This could, for example, include instances where you have been denied flexible working arrangements because you have caring responsibilities for somebody who suffers from a disability. If you can show that, had you not been associated to someone with a disability, you would have been granted the flexible working request, then this could amount to claim for discrimination.

Have you suffered direct disability discrimination?

If you believe you have been treated less favourably as a direct result of disability, then you may have a claim for direct disability discrimination. For example, if an employer refuses to employ you or consider you for a promotion, specifically because of your disability, despite you being the best candidate for the role.

Have you suffered indirect disability discrimination?

Indirect disability discrimination occurs when a provision, criterion or practice, is apparently neutral but has a detrimental effect on employees who share a particular disability, whether or not this effect is intentional. For example, a requirement that employees hold a driving licence may disadvantage employees with epilepsy. Whether or not this will be unlawful will depend on whether the employer can justify the requirement, which might be the case where the job was to drive a supermarket delivery van.

What is unfavourable treatment because of something arising in consequence of disability?

This is a strand of discrimination which is exclusive to disability. An example of this would be dismissal (unfavourable treatment) due to disability-related sickness absence. This does not mean that an employer can never dismiss a disabled employee whose disability means that they have frequent or prolonged absences from work but the employer will have justify their decision.

Have you been victimised because of your disability?

Victimisation occurs when an individual suffers detrimental treatment as a result of making a claim or an allegation of discrimination. For example, if you have previously raised concerns about discrimination in the workplace and you are now being denied the opportunity to be considered for a promotion, this could amount to a claim for victimisation. Victimisation can occur regardless of whether or not the historical claim was proven or not.

Can you take action against your employer because your colleagues or managers have harassed you due to your disability?

Harassment is conduct which creates an intimidating, hostile, degrading, humiliating or offensive environment. It does not necessarily need to be verbal comments made and could consist of other actions, such as written communications such as emails or group WhatsApp message. It could also include being ignored in the workplace or consistently delegated an unreasonable proportion of menial duties.

You work part-time because you look after my elderly disabled father. Recently, you were late for work a few times because it took longer for you to get him up and dressed. You are now being threatened with disciplinary action. Colleagues who have been late because of childcare issues seem be ignored. Surely this isn’t right.

It appears that you are being treated less favourably because of your father’s disability. This is direct discrimination under the Equality Act 2010. You don’t have to be disabled yourself to benefit from this protection under the Act as the wording outlaws less favourable treatment “because of” disability. That is, it is not the disabled person that has to be suffering the less favourable treatment. See our factsheet: “Am I Considered Disabled under the Equality Act?” for more information.

Your eyesight has been deteriorating for years and you have recently had the cause diagnosed and was registered as partially sighted. Does this give you any rights at work?

It does. As long as your poor vision has been certified by a consultant ophthalmologist. This would mean that you are deemed to be disabled for the purposes of the Equality Act and do not have to satisfy the usual definition of having an impairment that substantially and adversely affects normal daily activities. The Equality Act protects you from various forms of discrimination and requires your employer to make reasonable adjustments to help you overcome any particular disadvantage you suffer at work or provide auxiliary aids to help you do your job.

You have suffered badly from long term depression in the past and have recently experienced a recurrence and had time off work. In your previous job your employer got a medical report confirming you were disabled under the Disability Discrimination Act. Doesn’t your current employer have to take account of my disability?

You are likely to be covered by the Equality Act but if your current employer doesn’t know about your history and has no grounds for knowing that you are you are not protected by all the provisions of the Act. However, if you have been off sick and have been sending in sick notes which state that you are suffering from depression then they “ought” to have known about your disability. But unfavourable treatment because of something arising from your disability would not be unlawful if they could not know you were disabled. The same considerations apply to the duty to make reasonable adjustments.

Your little sister has Down’s syndrome and you are sick of hearing your colleagues calling each other “spastic” and other similar jokey terms of abuse. Do you have to put up with this?

No you don’t. The Equality Act 2010 includes protection from harassment. Harassment occurs when there is unwanted conduct that has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading or offensive environment. You should complain to your supervisor or manager and if necessary raise a formal grievance.

You work in a large supermarket putting goods on shelves. As part of your job you have to push heavy trolleys around. You have a bad back and are finding this increasingly difficult. At the end of my shift you can hardly move. What can you do?

It sounds like you are likely to be disabled for the purposes of the Equality Act 2010. You should make your employer aware of your condition. If you are disabled they have a duty to make reasonable adjustments to the normal job requirements. This could mean you only being given responsibility for moving lighter goods or not having to push trolleys at all.

The job requirements could also be indirect discrimination. This occurs where an employer applies a provision, criterion or practice (PCP) to all staff that particularly disadvantages someone with a particular disability. There is a potential defence to this form of discrimination when the PCP is a proportionate means of achieving a legitimate aim. You could raise a grievance with your employer in order to ensure that they meet their legal obligations.

To find out how we can help you with disability at work, contact us today on 01273 609911, or email info@ms-solicitors.co.uk.