Managing disability in the workplace can be a sensitive subject and sometimes makes employers and employees feel awkward, nervous of offending, or embarrassed. It doesn’t need to, though. Sensitively managing disability in the workplace is achievable with good HR management, proper planning, and timely actions.
Let’s have a look at some key areas for approaching disabilities in the workplace with sensitivity.
What Does The Law Say About Disability In The Workplace?
According to the Equality Act 2010, a person is disabled if they have a ‘physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on [their] ability to do normal daily activities.’ There is more information on what counts as ‘substantial’ and ‘long term’ here, as well as information on fluctuating conditions, such as Arthritis or depression.
It is illegal to discriminate against someone on the grounds of a disability. This could be direct discrimination, such as refusing to promote a person because they have HIV. Or, it could be indirect discrimination, such as insisting every office-based employee hold a driving licence, which would exclude someone with moderate epilepsy.
There are, of course, instances when it is necessary and valid to exclude people from a role because of a consequence of their disability. For example, it wouldn’t be feasible to employ a person who is not able to drive as a bus driver. This can be argued under Objective Justification.
What Is Objective Justification?
Objective Justification defends both direct and indirect discrimination as long as:
- There is no alternative to the requirements (for example, a bus driver cannot work without a driving licence, but a role based across two offices could be adapted to accommodate someone precluded from driving due to a disability.)
- The reason for excluding a set of people must be legitimate. The example given here is for protecting the health and safety of others. Saving money is not a legitimate reason.
The Role Of HR In Managing Disability In The Workplace
HR plays a crucial part in managing disability in the workplace.
A business owner has a responsibility for avoiding and preventing discrimination from the moment they put a job advert live and throughout their time at your company.
An HR advisor can help you to avoid discrimination by drafting job adverts and descriptions, conducting interviews and assessing for any reasonable adjustments.
If you have a disabled employee, an HR advisor can help to conduct regular reviews to ensure adjustments made and support given is adequate, proportionate, and justified.
Avoiding Disability Discrimination In The Recruitment Processes
A job advert cannot discriminate against an applicant or group of people. For example, you could not advertise for an ‘able-bodied candidate’.
The interview process must also be inclusive and the responsibility to make reasonable adjustments applies to the application process. Access to the building, the interview process, and aptitude tests should all be reviewed to ensure they do not exclude any of the candidates. This can be determined by simply asking the candidates if any adjustments should be considered.
You are allowed to ask questions about the health of a candidate before recruiting them but only for very specific purposes. For example, you can ask if the candidate can physically or mentally carry out the duties of the job if there is a health and safety concern or to fulfil an objective justification judgement but you couldn’t ask if you were trying to determine how much time off sick a candidate might take, for example. There is more detail on this here.
An outsourced HR professional can guide you through the interview dos and don’ts to ensure you are compliant with the law and not discriminating.
Managing Disability At Work By Making Reasonable Adjustments
When a practice, building, or task puts a person at a disadvantage due to their disability, the employer should look at whether an adjustment can be reasonably made. This could be, for example, adapting a building, providing an auxiliary aid, or changing a practice, precedent or situation.
What is reasonable is often determined by cost, practicality, and availability. For example, it might be considered reasonable to install a wheelchair ramp but not to widen and replace the front door of a building. Having said that, it really depends on the situation. You should seek legal advice if you aren’t sure.
Assessing what adjustments would help an employee should be properly recorded. There can be some discussion around what a disabled person considers reasonable and what an employer considers reasonable. Sometimes, the result lies in the middle of those two positions.
It is possible that an existing employee is diagnosed with a disability or develops one during their time with you. If this is the case, you should follow the same process of discussing their needs and requirements, scheduling regular review periods, and making reasonable adjustments where necessary.
Managing Disabled Employees
Of course, one assumes that except for reasonable adjustments, a disabled employee will not require any special management or extra attention.
However, it is feasible that some careful management might be needed, especially if performance is poor or there are a lot of absences. Imagine, for example, that an employee has poor performance, which you are managing, and in the meantime is diagnosed with a mental health disability. Despite making adjustments, the performance does not improve. Is it a result of their disability or are they just not very good at their job? Can you discipline them? Could you terminate their contract?
The answers to these questions will entirely depend on the specific circumstances. It can be a very sticky situation, legally and morally. It is certainly something for which you should seek professional HR support to be sure you are upholding your obligations and to get you the best outcome. At the very least, it can mean adjusting policies, contracts of employment and working hours to accommodate your employee. It is always worth getting help with that.
You can see how HR can help you in your workplace in our blog The Seven Functions Of HR.
Do You Want Help Managing Disability In The Workplace?
If you would like professional help to improve your processes and practices for the benefit of your disabled employees, get in touch.
Alison and Ali are experienced HR practitioners. Our services can provide you with one-off or ongoing support.
Get in touch with us on 01706 565 332 or email firstname.lastname@example.org.