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3 top tips to avoid a disability discrimination claim during lockdown

Guest Blog – Kate Dean/Samira Cakali

As the world starts to right itself and the economy starts to meet again, many businesses are in the difficult place of looking at restructures and redundancies.

While many businesses are likely to consider the mental health and well-being of their staff in these, dare I say it, unprecedented times such focus may not particularly be to the physical well-being of staff particularly those who experience other disabilities or long-term conditions.

In this guest blog, I have partnered up with Kate Dean from Enable Disability & Inclusion Consultants to provide you with our three top tips to avoiding a disability discrimination claim.

Enable Disability & Inclusion Consultants offer end to end solution focused support for businesses, from identification of needs through to implementation of equipment and support.

A reminder of the legal position

Where an employee has a physical impairment, which has a substantial and long-term effect on their day-to-day activity then they are likely to be deemed as a disabled person under the Equality Act 2010 (EQA). In such circumstances the EQA imposes a duty on employers to make reasonable adjustments for disabled employees and workers. This duty is comprised of three specific requirements:

  • Where a provision, criterion or practice (usually a policy) of an employer puts a disabled person at a disadvantage in comparison with persons who are not disabled, that employer must take reasonable steps to avoid that disadvantage.
  • Where a physical feature puts a disabled person at a disadvantage in comparison with persons who are not disabled, that employer must take reasonable steps to avoid that disadvantage.
  • Where a disabled person would be put at a substantial disadvantage in comparison with persons who are not disabled but for the provision of an auxiliary aid, the employer must take reasonable steps to provide that aid.

A failure by an employer to comply with any of the above requirements is a failure to make reasonable adjustments and so an act of disability discrimination.

Therefore, businesses will need to ensure that disabled employees and workers have the adequate provisions in place to enable them to work from home without placing them at any disadvantage.

This is particularly important because businesses may find themselves in a position where redundancies have to be made and ensure that any redundancy selection criteria are non-discriminatory.

Here are Kate’s three top tips to avoiding a discrimination claim –

  1. Look, listen and hear!  

19% of the working age population in the UK having a disability or long-term condition, however your team members may not have shared this with you. They may have been asked this question when completing HR Equal Opportunities forms when starting their role, but chose not to share this information with you for a variety of reasons. This may be because they do not identify a neurodiverse condition such as dyslexia or autism as being a disability, or feared it would have negative implications for them in their role. Or, like 84% of people, they may have acquired a long-term condition whilst in employment with you.  

Listen out for team members telling you about long term back conditions, neck conditions, repetitive strains (RSI), anxiety or depression. Team members may have only just started to talk to you about this throughout lockdown, but it might have been going on for some time. Have any of your team members had absences for fluctuations in conditions such as Irritable Bowel Syndrome (IBS), arthritis or had a seizure. All of these things may be defined as disabilities under the Equality Act and trigger the legal duty for you as an employer to make reasonable adjustments. 

2. Seek advice! 

You may have no experience of working with someone with a long term condition and do not know what adjustments to make. That is okay; you only know what you know, and have experience of what you’ve experienced. Asking someone about personal information can be daunting and then knowing what to do with this information can feel terrifying.

Referring a team member to Occupational Health teams may determine whether someone is fit to undertake their role however a Workplace Assessment will explore with the individual the impact of their condition on their day to day tasks and activities and make recommendations on a range of tools and strategies to enable them to work to their strengths. Solutions can often be straightforward, free or low cost but make a significant difference.

For Line Managers, you may require help to determine the adjustments that would be reasonable in a particular set of circumstances; whether this be in response to a flexible working request or if your business has decided that staff need to continue to work from home for some or all of the week. Ergonomic assessments undertaken now can reduce the risk of litigation later down the line.

If there is any doubt about whether the employee in question would be deemed as a disabled person under the EQA and/or whether the reasonable adjustments would alleviate the disadvantage suffered to the individual than legal advice should be sought from an employment solicitor.

3. Be proactive! 

When going through restructures, you may need to interview candidates for remaining, new or reshaped roles.

Interview processes can contain many barriers which may prevent the best candidate from shining. Lengthy questions or those with multiple parts, can become a memory test as candidates try to remember what you have asked, rather than enabling someone to demonstrate their experience. Having a written copy of the questions for candidates to refer to can help anyone who takes time to process information or may experience challenges with working memory. This could be someone with a neurodiverse condition, someone experiencing chronic pain or is just anxious about the interview process. In short, anyone who would find them beneficial.

Be welcoming in asking candidates if they have any adjustments or requirements that would help them to participate in the interview process because some people may take medication to help them sleep and a 9am interview may prevent them for performing at their best.

If conducting meetings online, explore the use of free inbuilt captioning tools which create subtitles on the screen. These are great to help information processing and for those who might have kids, dogs or other distractions in the background. However be mindful that if you have a member of your team who is D/deaf or hard of hearing this captions are not accurate or consistent enough to replace a human captioning or interpreter.

Start to think about whether it’s time to explore more formal Display Screen Equipment (DSE) assessments or ergonomic assessments are needed. Are team members feeling more productive working from home as they can better concentrate or extend their days to allow a rest period? Are they able to try the multiple free and inbuilt online tools to help with mindmapping ideas, hearing information rather than reading it, or dictating responses to emails or when drafting reports? All the things that people may feel too self-conscious to do in the workplace but actually enables them to be more productive.

Whilst the last few months have presented challenges for all, whether this has been business drying up or conversely demand going through the roof, it is a really good opportunity for business to redefine models of working and for everyone to find their preferred and best way of working. Harnessing the strengths of everyone in this way gives your business the best opportunity to thrive and removes barriers to high performance through meaningful inclusion.

Kate Dean

Director

Kate has over 10 years’ experience supporting organisations with solution focused, end to end consultancy, training and support for both managers and team members, to remove barriers and enable people to work to their strengths.

If you need help and advice on this topic, please do not hesitate to contact us on 0113 350 4030 or at hello@scesolicitors.co.uk.

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SCE Solicitors is a boutique employment law and litigation practice based in Leeds which advises clients nationwide. Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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