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Reasonable adjustments and discrimination arising from disability
[ch 7: pages 251-252]As well as the categories of protection against discrimination shared with the other protected characteristics (i.e. direct and indirect discrimination, harassment and victimisation), disability discrimination laws include two additional categories of claim, unique to disability. These are “discrimination arising from disability” (section 15, EA 10) and the employer’s statutory duty to make reasonable adjustments (section 20 EA 10).
An employer who does not know and cannot reasonably be expected to know about a disability will not be liable for failing to make reasonable adjustments or for discrimination “arising from” disability. However, an employer faced with behaviour that is out of character cannot simply ignore the obvious, as this example from the EHRC Code of Practice illustrates:
A disabled man who has depression has been at a particular workplace for two years. He has a good attendance and performance record. In recent weeks, however, he has become emotional and upset at work for no apparent reason. He has also been repeatedly late for work and has made some mistakes in his work. The worker is disciplined without being given any opportunity to explain that his difficulties at work arise from a disability and that recently the effects of his depression have worsened.
The sudden deterioration in the worker’s time-keeping and performance and the change in his behaviour at work should have alerted the employer to the possibility that these were connected to a disability. It is likely to be reasonable to expect the employer to explore with the worker the reason for these changes and whether the difficulties are because of something arising in consequence of a disability.
EHRC Code of Practice
https://www.equalityhumanrights.com/sites/default/files/employercode.pdf
For a good example in the context of references, see the case of Pnaiser v NHS England and Coventry CC [2015] UKEAT/0137/15/LA.
It is always the employer’s responsibility to assess whether a worker or job applicant could be disabled. A sensible employer should look for guidance from outside experts, such as an external health provider or a GP, but the employer cannot delegate the decision to the outside expert or simply “rubber stamp” their opinion (Gallop v Newport City Council [2013] EWCA 1583).
An employer will be liable for a failure to make reasonable adjustments if they knew (or should have known) of an impairment and the way it affects the disabled worker. The employer does not need not to know that the condition has a particular diagnosis (Jennings v Barts and the London NHS Trust UKEAT/0056/12/DM).
Can a prospective employer ask about disability in the job application process?
No, subject to very limited exceptions – for example to establish whether reasonable adjustments are needed to the application process (section 60, EA 10). See page 257.
Is there an obligation to tell the employer about the disability?
No. It is up to a member to decide whether to tell their employer about their disability. However, they should understand that if they do not, they may lose protection under the EA 10, including the chance to ask for reasonable adjustments. Many specialist charities offer advice about the best way to manage disclosure of a medical condition, who best to disclose it to and on what basis. Workplace reps can also play an important role. A worker who has disclosed details of their condition should keep a careful record.