Following Disability Awareness Day, which took place on 12 September 2021 and last week’s National Inclusion Week promoting inclusive practices amongst employers, we take the opportunity in this blog to take a look at and dispel a number of common myths and misconceptions around disability in the workplace.
Myth: Employers are permitted to ask job applicants if they have a disability.
Reality: Employers should ask all job applicants if they need reasonable adjustments for any part of the recruitment process and must consider making such adjustments if the:
- job applicant asks for reasonable adjustments
- job applicant says they have a disability
- employer knows, or could be expected to know, of the disability
It is, however, unlawful and potentially discriminatory for an employer to ask an applicant questions about their health or if they have a disability (other than for the very limited reasons set out in the Equality Act 2010).
An employer may decide to make a conditional job offer to an applicant that is subject to them satisfactorily completing a health questionnaire or undergoing a medical check. If this then results in the disclosure of an underlying health condition which may constitute a disability under the Equality Act 2010, then the employer should be cautious about withdrawing the job offer. The employer should take steps to obtain further information about the nature of the health condition and the impact that it is likely to have on the individual's ability to carry out the role as well as any reasonable adjustments which allow the individual to take up the role. Failure to do so could result in a disability discrimination claim being brought against them.
Myth: An individual must be registered as disabled before their employer is required to implement any adjustments for them in the workplace.
Reality: The Equality Act 2010 places a duty on employers to make reasonable adjustments for disabled job applicants and employees. This is an automatic right for those who meet the legal definition of disability under section 6(1) of the Equality Act 2010: ““A person (P) has a disability if they have a physical or mental impairment; and the impairment has a substantial and long term adverse effect on P’s ability to carry out normal day to day activities”,
In reality, this is a relatively low threshold and so no such registration is required. However, an employer will not be obliged to make reasonable adjustments unless it knows or ought reasonably to know that the individual in question is disabled and likely to be placed at a substantial disadvantage because of their disability. It is therefore in the interests of the employee to have a conversation with their employer so that they can provide any necessary support. Even where an employee or applicant would not likely be covered by the definition of disability in the Equality Act 2010, it would be prudent for an employer to make appropriate adjustments to facilitate their application or employment. Not only will this help to attract and retain talented individuals, it would also make the organisation more inclusive.
Myth: Reasonable adjustments are expensive.
Reality: What amounts to a “reasonable” adjustment will be a fact sensitive question. However, according to the Equality and Human Rights Commission’s Employment Statutory Code of Practice (“the Code”), factors taken into account might include the size of the employer, the financial and other costs of making the adjustment and the extent of any disruption caused, as well as the extent of the employer’s financial or other resources.
In terms of what such adjustments look like, the Code lists a number of examples such as making adjustments to premises, providing information in accessible formats, etc. They can, however, be as easy as offering additional rest breaks to overcome fatigue arising from their disability. It is also worth looking into the government ‘s “Access to Work” programme, which aims to help more disabled people start or stay in work, to ascertain whether any practical and/or financial support can be accessed through them. Ultimately, however, an employment tribunal will objectively determine whether a particular adjustment would have been reasonable to make in the circumstances.
Taking into account the above, employers should ensure that they do not treat any job applicant or employee less favourably, whether directly or indirectly, because of their disability and make appropriate reasonable adjustments, as otherwise this will expose them to a potentially costly and reputationally damaging claim for discrimination under the Equality Act 2010.
Myth: Employing disabled employees rarely adds value and places an additional burden on employers.
Reality: Whether it’s because of a protected characteristic (such as disability), an individual’s upbringing or their life experiences, no two people are the same. Increasingly our clients are taking proactive steps towards building inclusive workplaces partly because they believe it is the right thing to do but also because they feel that it brings commercial advantages increasing the breadth of the pool from which they can recruit. Within our own sector, the Law Society agrees, commenting that those who do not will “miss out on the best talent now and into the future”. Taking those who are neurodivergent as an example, increasingly organisations are recognising the contribution these individuals can make with employers such as Amazon, Microsoft, and EY committing significant time and resources to their neurodiversity-at-work initiatives. While their pockets may be deeper than other organisations, this example demonstrates the need for employers to be creative in their approach to inclusivity.
Contact us
Our team of employment law experts have a wealth of experience in supporting and advising employers on matters relating to disability discrimination, including reasonable adjustments.
If your organisation is in need of some Employment/ HR guidance and support on employing disabled employees and your obligations, please contact a member of our Employment Team who can assist.
This article contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.
