Bridge HR articles

Most employers are, I think, aware that they cannot discriminate against employees, customers or applicants for work on grounds of disability. But do you know how to recognise whether or not someone has a disability?

There are some conditions which are automatically deemed to be a disability e.g.:

• Cancer;
• HIV infection; and
• Multiple Sclerosis…..

… But, otherwise, what determines if something amounts to a disability and thus, whether you are obligated to make adjustments and/or liable for claims for discrimination etc.?

In law, it is whether or not the employee’s stated condition satisfies the legal definition of disability under the Equality Act which requires that there must be:

1. a physical or mental impairment;
2. which has lasted at least a year; or
3. which is expected to last a year; or
4. which is likely to last the person’s life (where life expectancy is under 1 year); and
5. the impairment has to have a substantial adverse effect on a person’s ability to carry out normal daily activities.

How should employers assess “disability”?

Increasingly, in my experience, cases on the issue of disability relate to a mental impairment rather than a physical impairment. This can tend to make the issue of determining whether or not it is a disability (as defined above) more complex. For example, an employee breaks his leg with short-term mobility issues. Clearly, this is a physical impairment, but how would an employer assess it?

• Will it substantially affect his ability to do normal daily activities e.g. walk, drive etc.? Yes, clearly it will.
• Will it last a year? – the issue is, is it likely to?

I am an employment lawyer, not a medical expert, but my understanding is people would usually recover from a broken leg well within a year. So, in the absence of medical evidence from the employee to the contrary, it is unlikely to satisfy the definition. If it doesn’t, the obligation not to discriminate, and to make reasonable adjustments, does not arise.

By contrast, an employee goes off sick and produces a fit note citing depression, stress, anxiety and/or low mood (I have seen a few “ low mood” fit notes recently) – this is much harder to assess:

• What exactly is the effect on their daily activities?
• For how long is it likely to last?

This raises complex issues as to how to deal with it.

• Can the employer just pay SSP?
• Can the employer safely dismiss?
• What if the employer sees Facebook entries suggesting the employee is “living it up” and looking pretty cheerful?
  
  

MY ADVICE

These situations have become more common in recent years. The only safe course of action, because specific details are important, is to gather all the information objectively without any judgment and then take prompt legal advice.

It can be very expensive and time-consuming if you get it wrong and end up facing a claim or if you keep paying an employee for a long time when they are not working when it may have been relatively safe to 'bite the bullet'.

If you have any queries about this article or wish to discuss a situation, please feel free to contact Shaun Pinchbeck shaun@bridgeehr.co.uk or 07548 767505 for a free no no-obligation chat. Shaun has over 30 years of experience advising on these issues.