Are Employees Taking Advantage of Disability Discrimination Claims?
In 2010 Government introduced the Equality Act to protect disabled employees from unfair treatment and discrimination. Recent statistics reveal that the number claims for discrimination against disabled workers has increased steadily over the past few years. Many employers now question the legitimacy of all the claims. They believe that some employees are looking for easy money by lodging complaints with employment tribunals.
Easy is the word. According to Joanna Marshall, an employment solicitor, all it takes is a ‘tenuous link’ between unfavourable or unfair treatment (discrimination) and disability for cases in front of the Employment Appeal Tribunal to succeed.
Naeema Choudry supports this view and says that it is easier for disabled workers to claim for discrimination rather than to claim that their employers failed to make reasonable adjustments for their disability. The difficulty lies in the levels of proof required. Proving disability is not difficult at all, but trying to prove an employer didn’t make reasonable adjustments is a lot harder to establish.
What constitutes a disability?
Individuals have to meet the Equality Act’s definition of disability to be protected by the Act. When the requirements for disability have been met, employers are obligated to make reasonable adjustments so that disabled employees aren’t disadvantaged.
According to the definition, a disability is any physical or mental impairment that impacts a person’s ability to carry out normal work activities. The trouble lies in the interpretation of these disabilities. Anxiety is a mental health issue, but could it impair someone to the extent that they can’t carry out their normal work activities? How can employers make adjustments to alleviate anxiety? What about obesity? Is it a physical impairment as defined by the Act? After all, it could give rise to conditions that cause impairment.
Playing fast and loose with interpretations may trigger more disability claims. However, claimants must provide medical evidence of physical or mental impairment to support their claim. Doctors may be reluctant to give evidence that enables obese employees to take advantage of disability laws. The requirement aims to deter illegitimate claims.
Employers do bear responsibility for disabled employees
There is also the very real chance that the increase in claims stems from employers not making the adjustments required. One possible reason for this is lack of awareness of adjustments required. The easiest way to address this is to simply ask the person concerned about their needs. It could be as simple as providing a quiet work space for someone with anxiety.
You can also ask job applicants to fill in a pre-employment health questionnaire. This enables you to gather details about the nature of the disability and establish what adjustments are required. You can determine if adjustments are then reasonable. According to the Equality Act, failure to disclose a disability will adversely affect employees’ success if they claim discrimination later on.
Examples of reasonable adjustments
What is reasonable depends on the employer’s resources, the size of the business, the practicality of the changes, and whether the changes would make a real difference to the employee’s ability to function at work.
- Transfer to another job with tasks more suited to the disability.
- Allow extra breaks.
- Give time off for treatment and rehabilitation.
- Allow for flexible working hours and work from home.
- Install ramps, additional hand rails and stairway lifts.
- Install automatic doors.
- Improve lighting.
- Rearrange furniture to accommodate wheelchairs, crutches or walkers.
- Provide modified equipment, including adapted desks and keyboards.
- Provide extra training.
- Employ a support worker (reader or interpreter).
- Provide extra supervision and support.
If employers are unsure about what changes are required or whether they have met certain needs, they can get additional advice and support. Disability Employment Advisers (DEAs) are a great resource, as are occupational health advisers, educational psychologists and physiotherapists.
Employers can increase their chances of success in a claim if they can show that they’ve investigated reasonable adjustments required, and carried out adjustments deemed necessary.