Disability Awareness - Do you need guidance?

Disabled people and those with health conditions, including mental health conditions, should be given the opportunity to both get into, and stay in, work.

 Nazia Kausar, solicitor in Wake Smith’s Employment Law team, looks at some frequently asked questions to provide you with guidance on disability awareness.

This articles covers:

• What is a disability?
• Does an employee have to disclose their disability in a works interview?
• Does an employee have to tell you they are disabled?
• What if an employee becomes disabled during their period of employment?
• How can I support an employee with a disability?
• What about disability related absences?
• Do I have to keep their disability confidential?
• How should I talk about disability?
• Using inclusive language

What is a disability?

A disability, under statute, is a protected characteristic that is defined as a physical or mental impairment, which has a substantial and long-term adverse effect on an employee’s ability to carry out normal day-to-day activities.

Some conditions will automatically qualify an employee as disabled, such as cancer, HIV and paralysis.

If the condition does not automatically qualify, then a diagnosis from a doctor can determine a person as disabled.

Does an employee have to disclose their disability in a works interview?

No. An employer who is recruiting may make limited enquiries about a person’s health or disability. You can only ask about a person’s health in the following circumstances:

• to help decide if they can carry out a task that is an essential part of the work
• to help find out if they can take part in an interview
• to help decide if you need to make reasonable adjustments for them in a selection process
• to help monitoring
• if you want to increase the number of disabled people you employ
• if you need to know for the purposes of national security checks

 You can ask job applicants to complete an equality and diversity monitoring form. If this is completed, it must be anonymous and separate to the job application.

Health checks can also be carried out if there is a legal requirement to the role. However, health checks must not discriminate. It is against the law for you to only ask disabled people to do a health check if it’s an essential requirement for everyone who does the role. 

Does an employee have to tell you they are disabled?

By law, nobody has to tell their employer they are disabled. As an employer you will need to be mindful that, an employee will not be able to get the support they may need in the workplace if they do not tell you. However, it is your responsibility to consider whether anyone may have a disability that puts an employee at a disadvantage at work. This does not mean asking intrusive questions and you should focus on the support that you can provide. 

When an employee tells you they are disabled, you have a legal responsibility to support them, including making reasonable adjustments and to protect them from disability discrimination, including harassment and victimisation.

You should do all that you reasonably can to create an environment and recruitment process where your employees feel safe. This can help towards:

• Ensuring that there is adequate support and employees are not put at a disadvantage or treated less favourably.
• Recognising the benefits of an inclusive and diverse workforce that does not exclude disabled people.
• Recruiting and retraining staff on developing ways of living with a disability.
• Avoiding situations where you do not know someone is disabled and think they lack capability.
• Improving wellbeing and productivity for everyone.

You can ask an employee about a disability for a specific reason, such as to prevent health and safety risks, avoid disability discrimination and monitor the number of disabled people in the organisation.

What if an employee becomes disabled during their period of employment?

If an employee chooses to tell you about their new disability, it is important that you exercise sensitivity and have regular catch ups to check how they are feeling and what support and/or reasonable adjustments they may need over time.

Reasonable adjustments can mean alterations to buildings by providing lifts, wide doors, ramps and tactile signage. It can also mean changes to policies, procedures and staff training to ensure that services work equally well for people with disabilities.  This may include considering flexible working, changes to working patterns, shifts, hours and/or changes and adaptations to the job role and duties.

How can I support an employee with a disability?

By law, employers must:

• make reasonable adjustments when they know, or could reasonably be expected to know, someone is disabled
• do all they reasonably can to support disabled staff and job applicants and protect them from discrimination
• take steps to prevent disability discrimination – this includes recognising the benefits of having an inclusive and diverse workforce that does not exclude disabled people 

It is also the employer's responsibility to make sure other people do what's needed for a reasonable adjustment to work well.

An employer could be liable under the law if they do not do take appropriate steps to prevent disability discrimination. For example, an employee or job applicant could make a disability discrimination claim to an employment tribunal.

What about disability related absences?

You should have an absence policy that includes what to do if someone needs time off for reasons related to their disability. If there is not, you should decide what type of leave the employee should use and how to record their absence.

If someone requires a number of absences due to their disability, then reasonable adjustments should be made. Examples include:

• Not counting some or all sickness absence related to a disability towards any trigger points.
• Increasing the number of absences that will trigger a review. 

If someone is not ready to return to full work then you should consider flexible working or a phased return as detailed above.

How much the employee is entitled to when they are off work depends on what you offer as an employer in terms of contractual sick pay, which is more than the legal minimum Statutory Sick Pay (SSP).

If someone is off work for a while, you should make sure the person knows their rights, including sick and holiday pay and any benefits they may be entitled to if their sick pay runs out.

Do I have to keep their disability confidential?

Yes, unless the employee is happy for the information to be shared. It will be helpful to agree in writing what can be shared, who with and whether they wish to tell people themselves or would like you to do it. 

Confidentiality is not always possible. For example:

• If someone needs specific support;
• Health and safety reasons – for example, someone cannot operate certain equipment;
• People at work need to be aware – for example, someone is prone to seizures.

How should I talk about disability?

• Let the disabled person take the lead. It is up to them how much they wish to share.
• Listen and try to understand how their disability affects them.
• Consider the person’s specific situation and do not make assumptions about what someone can and cannot do.
• Talk about support they may need and ask how they would like their disability to be referred to.

Using inclusive language

Ableist language is not acceptable. This means any inappropriate, negative or offensive words towards disabled people. It is important as an employer that you be sensitive in the terms that you use and avoid connotations such as ‘handicapped’ or ‘wheelchair-bound’.

You should talk with the employee and agree to their language and preferences. This should be reviewed, as preferences may change.

Inappropriate, offensive or ableist language can be disability discrimination.

What to do next?

If you require advice on any of the information raised in this article, our friendly Employment Law team at Wake Smith Solicitors is happy to help.

Please contact Nazia Kausar on 0114 224 2027 or email [email protected]

Published 28/03/2023