Disabled staff, the workplace and you

to avoid costly claims, it is vital that registered social landlords understand the employment provisions of the 1995 Disability Discrimination Act. There are certain steps that employers should take when dealing with staff and job candidates who may be protected by the DDA.

The first step is to identify who is covered. An individual has a disability for the purposes of the act if they have a physical or mental impairment that has a substantial, long-term, adverse effect on their ability to carry out normal day-to-day activities.

This definition is very wide – more so than the conditions the general public might think of as “disabilities”. From next month, the definition of disability will include progressive conditions such as multiple sclerosis, cancer and HIV.

The DDA prohibits two forms of discrimination as follows.

Less favourable treatment

The first is where an employee treats an individual with a disability less favourably than it treats a non-disabled person for a reason that relates to the disability. There are two forms of less favourable treatment:

• on the grounds of a disability – for example, refusing to employ a person in a wheelchair, irrespective of the needs of the job. This form of less favourable treatment cannot be justified or defended by an organisation

•  less favourable treatment for a reason related to a disability. This may arise, for example, when a person using a wheelchair is turned down for a position that requires high levels of mobility, such as a postman.

When drawing up a job specification, make sure there are no requirements that may lead to discrimination. An example could be asking for someone to be “energetic” when the job is largely sedentary in nature.

One area where less favourable treatment on the grounds of disability unwittingly occurs is in selection for redundancy.

Many RSLs use sickness absence as a criterion for selection. If the sick days are related to the person’s disability, this could be discrimination. Therefore, RSLs should exclude long-term absences related to a person’s disability.

Making adjustments

An example of a discriminatory requirement could be asking for someone to be ‘energetic’ when the job is largely sedentary in nature

The second form of discrimination under the DDA covers the duty to make reasonable adjustments. These aim to prevent any arrangements – or any physical features of the RSL’s premises – made by the RSL, or on its behalf, that put disabled applicants or employees at a substantial disadvantage compared to their non-disabled peers.

The required adjustment will depend on the type of disability concerned, but may include specialist equipment, re-allocation of workload, changing working hours or putting the employee in a different job role.

A failure to make reasonable adjustments can only be justified if the reason for the failure is both material and substantial. In deciding whether an employer was justified in not making reasonable adjustments, an employment tribunal will consider whether it would be practicable for an RSL to take steps, the costs incurred, disruption, the RSL’s resources and the availability to the RSL of financial and other assistance.

If you invite a disabled candidate for interview, think about what reasonable adjustments may be needed so they can attend – for instance, holding the interview in a wheelchair-accessible room. People invited for interview should be asked to give details of any special requirements.

Doing the job

Once a disabled person is employed by an RSL, they must not be discriminated against in relation to terms and conditions of service, arrangements made for induction, opportunities for promotion, transfer, training or receiving any other benefit, or refusal of such opportunities, pensions, dismissal or any detriment. It is also important that employees who become disabled during the course of their employment, or who have a disability that worsens, are not discriminated against.

When an employee is on long-term sick leave, an RSL should seek medical advice as to whether they are suffering from a disability in order to assess how to treat their absence from the workplace. If they are disabled, consider how their job can be adjusted so they can return to work.

If their disability makes it impossible for them to perform the main functions of their job and there is no other suitable job that can be offered to them, the decision to terminate their employment may be justifiable.

The DDA places stringent obligations on employers, and ignorance of the law or of a worker’s condition is no defence. All RSLs must be aware of any medical conditions that affect employees or job candidates and make sure such individuals are treated fairly.