For most employers it is not always easy to identify when an employee has a disability, especially as it is not always obvious physically.
The starting point is to understand the definition set out in The Equality Act 2010. The Act defines a person as ‘disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities’.
It is not a long definition and, as such, I think it would help to elaborate on a number of points in more detail, breaking them down further so as to understand what ‘normal day-to-day’, ‘long term’ and ‘substantial’ means’.
The basic definition for each is as follows:-
- ‘Normal day-to-day’ activities are those things that people do on a regular or daily basis. This includes things like reading, writing, using the telephone, having a conversation and travelling by public transport. Activities such as playing a musical instrument to a high standard of achievement are not considered to be normal day-to-day activities, as this is considered to be a highly specialised or involves highly specialised levels of attainment and therefore they are not considered to be normal day-to-day activities for most people.
- ‘Long-term’ generally means that the impairment ‘should have lasted or be expected to last at least a year’. Employers do need to take care as this is considered to be the usual period of impairment. However each individual should be considered on a case by case basis.
- ‘Substantial’ is defined as ‘not being minor or trivial’.
The employer needs to understand that it is not the impairment that needs to be considered but its effect. It is important to understand that impairments such as migraines, dyslexia, asthma and back pain can be deemed to be a disability, especially if the adverse effect on the individual is ‘substantial’ and ‘long-term’.
Some conditions are automatically considered to be a disability from the point of first diagnosis, this includes cancer, HIV and multiple sclerosis (MS).
How does this affect me?
Under legislation it is considered to be discrimination when a disabled employee is treated unfavourably because of something connected with their disability where the employer or any individual acting on behalf of the employer knows, or could reasonably be expected to know, that the employee has a disability.
During discussions with a disabled employee there is an expectation that an employer would need to make a reasonable adjustment to accomodate the disability. Next, the employee should provide the employer with sufficient information to enable the adjustment to be made. Disabled employees have a right to confidentiality and an employer must not disclose confidential details, either internally or externally, without the individuals expressed permission. In addition to the Equality legislation, the employees will be protected by the Data Protection Act 1998, which places a duty on employers to ensure they manage confidential and sensitive personal data. This will include any data about an employee’s health.
Employers often ask the question, can they ask the employee to pay for any reasonable adjustments that need to be made? The legislation is very clear on whether an employee should be expected to pay towards any adjustments or not. Under the Equality Act 2010, it is clearly stated that an individual should never be asked by the employer to pay or contribute towards the cost of any adjustment that is needed as a result of a disability. The cost of any adjustment must be met in full by the employer.