Laura Morrison, an employment lawyer with Dentons, looks at what retailers’ responsibilities are concerning staff with disabilities
What counts as a disability for the purposes of employment rights?
There are three elements to the employment law definition of disability. To qualify, a disability must be: a physical or mental impairment, it must have a substantial adverse effect on the individual’s day-to-day activities and it must be long-term. This means it must last, or be likely to last, for at least 12 months. While that may sound straightforward, it remains the cause of many disputes.
Some conditions are deemed to be a disability, without the individual having to show that it meets the three elements of the definition. These include blindness, cancer, HIV infection, multiple sclerosis and severe disfigurement.
What rights do disabled employees have?
Disability is a protected characteristic under equalities legislation, so individuals with disabilities are protected from discrimination and can take action via an employment tribunal, if necessary, to enforce their rights. As well as it being unlawful not to offer a job, or a promotion, purely on the grounds that someone has a disability, employers also have a duty to make reasonable adjustments for disabled employees and job applicants.
Do these rights only kick in when an employee tells an employer they have a disability?
No. An employee might tell their employer that they have a long-term health condition, but it is not up to the employee to decide whether the condition qualifies as a disability. Ultimately only a tribunal can make that determination, but employers can – and should – seek medical advice, ideally at an early stage. Occupational health specialists are used to giving a view on whether a particular condition is likely to fall within the legal definition of disability.
Unfortunately for employers, there are also situations where they are deemed to have “constructive” knowledge of a disability, because they could reasonably have been expected to know of the disability even if in fact they are completely unaware of it.
In one recent case, the fact that an employee told the employer that they suffered from post-traumatic stress disorder, along with other information the employer had about her condition, was enough for the Employment Appeal Tribunal to conclude the employer had constructive knowledge that she was disabled. The case is a useful reminder that employers should not delay referring their employees for medical assessment in the hope that it will defer their duty to make reasonable adjustments.
The Equality and Human Rights Commission code of practice recommends that employers do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances.
What kind of adjustments should an employer consider?
The reasons you might need to make adjustments are almost limitless. They can include changes to a physical feature of your premises, providing an auxiliary aid or removing a disadvantage caused by a policy or practice you follow in the workplace.
It will depend on the employee’s condition and what difficulties that causes for them. In one case, you might need to consider adjusting the individual’s working pattern, in another providing headphones because of a sensitivity to noise in a busy warehouse. In a retail environment, for example, an employee might have difficulty standing for long periods at a counter or lifting stock, so you might need to think about changing the frequency of breaks or reallocating tasks.
As well as providing a view on whether an employee’s condition is likely to qualify as a disability, occupational health specialists can also provide advice on what adjustments might help in a particular case.
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