To mark Disability Awareness Day, which is taking place on 12th September, we take a look at three facts regarding disability and the Equality Act. Whilst most employers are aware that disabled employees and job applicants have protections and rights under the Equality Act, what are some of these and how do they work in practice?
1. How is disability defined under the Equality Act?
Under the Equality Act, a person has a disability if they have a condition which automatically qualifies as a disability, such as cancer or HIV, or if they meet the definition of disability set out in the Act.
For the latter, a person has a disability if they have a physical or mental impairment, and that impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The impairment must usually last at least 12 months or be reasonably expected to last for that period. In practice, this can mean that it will very much depend on each employee’s individual case as to whether or not they are considered to be disabled for employment law purposes.
2. What about ‘long Covid’?
One of the questions that is currently being grappled with is whether ‘long Covid’ is protected as a disability under the Equality Act. This is a difficult area as it is still a new illness and there can be a variety of symptoms. Whether ‘long Covid’ will meet the threshold of a disability will be determined by employment tribunals looking at the facts of individual cases. As it is possible that in some circumstances ‘long Covid’ may be found to be a disability under the Equality Act, if an employee in your organisation is experiencing ‘long Covid’, ensuring that they are treated appropriately and reasonably reduces the risk of workplace disputes arising.
3. What additional protections do disabled employees have under the Equality Act?
Many employers are aware that employees and applicants are protected from direct and indirect disability discrimination, and from harassment and victimisation as is the case for other protected characteristics such as race or sex. However, there are additional rights and protections that are specific to disability which employers may not be as aware of:
- Discrimination ‘arising from disability’: this can occur where a disabled person is treated unfavourably because of something arising in consequence of their disability. Such unfavourable treatment could include dismissing a disabled employee because they need to take time off work to receive medical treatment, or because they are absent from work due to the illness. The unfavourable treatment would be the dismissal and ‘something arising from disability’ would be the absence from work.
Employers have a defence if they can justify their actions by showing that they have a legitimate business aim and that the means used to achieve that aim are proportionate.
- The duty to make reasonable adjustments: employers are under an obligation to make reasonable adjustments if a disabled employee or applicant is placed at a substantial disadvantage compared to a non-disabled employee or applicant by the physical features of the premises, a provision criteria or practice, or the absence of an auxiliary aid. What adjustments are required will depend on the particular circumstances and medical advice, but may include steps such as providing equipment, for example a specialist chair or making adjustments to the role.
As there is no limit on the amount an employment tribunal can award for a successful claim under the Equality Act, it is important that employers act appropriately when it comes to managing such matters.
If you have an employment law issue you would like assistance with, please do not hesitate to contact Kingfisher Professional Services Ltd as we are happy to help.