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New guidance on disability

04 December 2015 #Employment

ACAS has released updated guidance on managing disability in the workplace 'Disability discrimination: key points for the workplace’. ACAS say that last year they had nearly 12,000 calls to the their helpline related to disability issues and received almost 3,000  disability discrimination employment tribunal cases.

One of the issues covered by the guidance is the topical issue of whether obesity a disability. Confirming the case law of the European Court of Justice, the guidance confirms that although obesity itself is not a disability, it may cause an impairment - for example, mobility problems, depression or diabetes - which could be a disability. The impact would have to substantially adverse and long-term on day-to-day activities. The guidance also reminds  employers of the risk of claims if  employees are  subjected to offensive comments or behaviour because of their weight

Separately, ACAS publish The top ten myths about disability in the workplace, which is useful to help promote awareness at work. Our adapted version of  the most interesting top five in legal terms are:

1. Myth: As employers, we are much more enlightened nowadays about disability and stereotyping 

 Fact: In 2015, it was reported that 42% of disabled people seeking work found the biggest barrier to getting hired were misconceptions around what they could do.

2. Myth: To be disabled, the person has to be in a wheelchair, or blind, or lost a limb, something like that.

Fact: The definition of disability in the Equality Act 2010 is a very broad general one and can cover a very wide range of conditions –or ‘impairments’. Many can be far from obvious , in particular certain mental health conditions such as depression.

3. Myth: A job applicant has to tell us, as an employer, if they are disabled. They would have to let us know about being registered disabled.

Fact: No. A disabled person can keep a disability confidential, including once they become employed. Plus, in terms of disability discrimination law, there is no need to register the disability with anyone. To claim certain benefits such as a blue badge parking permit or to obtain travel concessions it is necessary to be registered with the local authority. Plus, receipt of the new Personal Independence Payment (PIP), which is replacing Disability Living Allowance, will be relevant evidence of disability. However, ultimately the matter is one for an employment tribunal decide in a discrimination case.

4. Myth: In redundancy, an employer has to create a vacancy for a disabled employee.

Fact: No. An employer doesn’t always have to redeploy disabled employees. They should be capable and qualified for any new job, with any ‘reasonable adjustments’ in place.

5. Myth: Once an employer has hired a disabled person, they can’t sack them.

Fact: An employer can dismiss a disabled employee if the dismissal is justified and they have taken all the correct steps.

In a recent case, the issue of holding interviews in a redundancy process was considered. the employment tribunal upheld a claim for failure to make reasonable adjustments, brought by a disabled NHS employee who failed to achieve the required score in a competitive interview for an internal post. The employee, whose existing position was at risk of redundancy, indicated that he wanted to proceed with the interview, despite having been signed off sick while he was receiving cancer treatment. The tribunal found that, while it was necessary to have some form of assessment, the employer should have carried this out on the basis of existing data about his performance, including appraisals from previous posts. However, it was not necessary to lower the pass mark to accommodate the employee's impaired performance at interview.

The failure to appoint the employee to the role also amounted to discrimination arising from his disability.Waddingham v NHS Business Services Authority ET 1804896/13.

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