Top Mistakes Employers Make When Dealing With Employees With Disabilities
Key Contact: Claire Knowles
Author: Juliette Franklin & Swyn Llyr
In our Acuity Law free webinar, we looked at some of the biggest misconceptions that employers have about accommodating employees with disabilities – and the pitfalls of getting it wrong.
- Not correctly defining disability
The Equality Act 2010 defines disability as a physical or mental impairment that has a substantial and long-term (for at least 12 months) adverse effect on a person’s ability to carry out day-to-day activities. The effect of the impairment is important, and not the underlying condition itself.
In practice:
An employee’s obesity is not an impairment. But it causes breathing and mobility issues that adversely affects her ability to work.
An employee has a minor learning disability, which means he struggles to write materials and recall information.
These employees could be considered “disabled”.
Types of impairment could be:
- Sensory – affecting sight or hearing
- Progressive – such as motor neurone disease or dementia
- Organ-specific – such as asthma
- Mental – such as dyslexia, dyspraxia, or a mental health condition.
- Not knowing about an employee’s disability
You might know for a fact that an employee has a disability. But don’t ignore the obvious: you should also be alive to indications of disability. Individuals with disabilities, especially disabilities that are not visible, might conceal any signs to avoid stigma or embarrassment. But Government statistics suggest that “hidden” disabilities might affect as many as 10-15% of the population. And an impairment doesn’t need to be continuous to cause a substantial and adverse effect – it could come and go.
In practice:
An employee has an increase in the number of days she is absent due to sickness, which is out of character.
The manager or supervisor should be observant and if they suspect an individual might have a disability, they should make reasonable inquiries to ascertain if there is anything they can do to help.
“As an employer, you should try not to diagnose someone. You should instead focus on the support that you can provide and encourage the person to ask for any adjustments that they need,” says Swyn.
- Not making reasonable adjustments to accommodate an employee’s disability
Employers must not treat employees with disabilities less favourably than those without. This means being mindful of workplace policies and practices that could impede access to work or opportunities for disabled people compared to those without disabilities.
In practice:
An employer has a policy whereby a performance improvement plan process is triggered by three instances of absence on grounds of ill health in a six-month period.
To avoid disadvantaging an employee with a disability and be compliant with their duty, the employer could discount any disability-related absence and only consider sickness not related to the disability.
- Viewing reasonable adjustments as an inconvenient cost
All too often, employers are reluctant to meet their responsibilities for fear of long-term implications. But, in most cases, making reasonable accommodations are an easy win for employers, and can even be cost-neutral and simple to implement.
In practice:
An employer allocates a parking space closest to the building in the existing employee car park to an employee with mobility issues.
At times, costs can be prohibitive and extend beyond what is “reasonable”. But it should be weighed with other factors: what would happen if you didn’t make the adjustment? Will the employee raise a grievance, or even leave? Might they bring an Employment Tribunal claim? Is this going to lead to reputational damage?
- Not collecting appropriate medical evidence
Frequently we find employers not reaching out (or reaching out too late) to medical specialists or to occupational health. But relying on the wrong medical evidence, or no medical evidence, is risky. Google or anecdotal experience or advice will not suffice, and outside advice is often necessary. But this advice (and any adjustments made as a result) must be tailored to the specific needs of the individual.
In practice:
An employer has a dyslexic employee and obtains a medical report. Another dyslexic employee joins the company, and the employer assumes the existing report will be appropriate and relies on it, without considering the new employee’s specific situation or what adjustment they need.
Employers often don’t ask the right questions – or ask the questions they want the answers to, not those they need. Make sure approaches to medical experts are open, objective, and, above all else, relevant.
Evidence must also be up to date. If an employee’s condition changes or develops, there may be a need to seek a new medical report. If their role changes within the organisation, the medical evidence must be fit for the new role.
- Ignoring medical evidence
If medical evidence appears too difficult to engage with, requires costly implementation, or seems to be “going too far”, it might be tempting for employers to ignore it. But they should discuss it with the employee and, where possible, implement the advice. If it’s still not workable, employers should consider whether there are other alternatives that could work.
- Not implementing reasonable adjustments within a reasonable timeframe
The law recognises that adjustments can take time to implement. If a delay is unavoidable – for example, if equipment needs to be ordered – it is still essential to take steps to action the request as promptly as possible, and not leave it sitting in an in-tray.
“This isn’t about treating somebody more favourably. This is about levelling up. And if a particular practice of your business means that the disabled employee is likely to be disadvantaged when compared with the non-disabled employee, then the purpose of the adjustment is to put them on a level playing field; it’s not to put them in a more advantageous position,” explains Juliette.
Adds Swyn: “Reasonable adjustments will fail if they are not accompanied by supportive and positive attitudes from both colleagues and managers. The first step to promoting equal opportunities is recognising that to be included and achieve equality within an organisation, sometimes people need to be treated differently. It’s important that equal opportunity is promoted throughout the workforce, and we recommend that you are sensitive to a variety of individuals and potential hidden disabilities, that you show flexibility and patience, and that you also refrain from making assumptions regarding disability status.”
For more – including a look at disability harassment, victimisation, and the importance of creating a safe space, as well as bridging the employment gap between employees with disabilities and those without in the recruitment and onboarding process – listen to the full webinar here.
Was this useful? Sign up for our newsletter here. For information on upcoming webinars from our Employment team, click here.
For any queries, please contact a member of the Employment team.
