Disability in the workplace is a very contentious issue, and something that we certainly wouldn’t be able to definitively cover here.
However, what we can do is to help you as an employer to understand how to behave with care and attention – so as to avoid getting into any grief when it comes to dealing with any disability in your business.
What is a disability?
This is perhaps the most difficult question when it comes to covering disability in the workplace, as there is no set terminology to decide when a condition is severe enough to be considered a disability.
For example, the tribunal case of Metroline vs. Stoute demonstrated that even something as potentially serious as Type 2 diabetes is not always considered to be a disability. In this case, the claimant (a bus driver) could control his blood sugar levels by avoiding sugary drinks, something that was in his control and not the employer’s. But what about someone with a more serious case of diabetes?
Furthermore, what if their physical condition is something that has been largely considered by society as self-inflicted? Such as obesity. Well, in a somewhat contentious ruling, the EU’s court of justice ruled last year that obesity can in fact be a disability in some cases. So what you might consider to be a disability may differ from the word of the law.
Physical conditions are not the only thing covered in law – mental health also can, in certain cases be considered a disability. However, as shown by Saad vs. University Hospital Southampton, mental health conditions on their own aren’t always enough to give an employee the protection of the Equality Act.
In this case, Saad argued that he was unable to interact properly with other staff due to his depression and anxiety disorder, however he was still able to carry out day-to-day tasks such as making the journey into work. Therefore it was considered by the Employment Appeal Tribunal that Saad’s condition did not have enough of an adverse effect on his day-to-day activities to amount to a protected disability.
However, this isn’t to say that conditions such as depression aren’t ever considered disabilities protected by the Equality Act. A tribunal case around the same time found that an employee that VisitScotland decided was unfit to return to a former role (due to a period of depression) was in fact discriminated against – and she received £40,000 in damages.
Therefore – with decisions falling on either side of the line of the debate ‘does this count as a disability?’ – we cannot definitively determine what actually counts as a disability in the workplace. What we do know is that typically to be covered by the Equality Act a medical condition needs to be long-standing and have a significant negative impact on daily life.
How does disability affect you as an employer?
As it’s difficult to determine what in fact constitutes a disability in the workplace, it is likewise difficult to truly understand just how this affects you as an employer.
What we do know is that you do need to tread carefully when considering any formal processes which impact on someone with an underlying medical condition that impacts how they work for you. However, a common sense approach can help you to avoid potential pitfalls.
Employers must now, more than ever, be conscientious towards those they consider to have protected characteristics. If your business decisions impact on an employee who has a medical condition, then you should always think about whether you could be discriminating (and remember discrimination can be both direct and indirect).
Using the type 2 diabetes case as an example; if it had been a serious enough condition whereby the employee needed to inject himself on a regular basis with insulin to avoid serious health issues, the bus company may have needed to give the driver the facility to do this within his working hours.
However, as the appeal tribunal decided in the actual case, they could not accept that abstention from sugary drinks constituted a substantial adverse effect on day-to-day activities caused by the Type 2 diabetes.
Take logical steps to assess each situation
It’s often difficult for employers to know when an employee might be classed as disabled under the law. Some conditions may seem obvious, but there are many others like mental health problems, migraines and diabetes (to name a few) that are simply not clear cut. Therefore it is worth taking logical steps to assess the employee’s individual situation.
No two cases will be the same, even when the medical condition is, but common sense questions on the impact of their condition and their ability to work can help you to understand whether they may be considered disabled, and whether you should make changes to your workplace to help them.
Most absences from work will not be linked to an underlying medical condition, so it is worth remembering that it is the exception rather than the norm. But if there is a situation where an underlying condition is impacting work (remember this may not just be about attendance) then you might need to act carefully.
Therefore, working with staff who may have disabilities is all about being reasonable and fair towards all your employees as far as is possible. Let’s not forget that a medical condition should not be used to define or label an employee as different.
What can you do to effectively manage someone with a disability?
So how can you manage someone that has a disability if you aren’t sure whether they have a disability in the first place?
Any reasonable employer would work with their employees to overcome any issues they may be having fairly and sensibly, therefore helping all employees – whether you’re sure of their disability status or not – to carry out their job as effectively as possible is a sensible place to start. Equally this has to be within the context of the financial and other constraints of your business.
However, with the more complex issues like those we have covered above, you may need to think about specific measures. The obvious ones are to do with access for those that are disabled physically, ensuring they can get to work. However, what about those you cannot classify as disabled so easily?
For example, when you employ someone who is seriously overweight, you might think about helping them to carry out their job in various ways. If they are repeatedly late for work, are you able to give them a parking space nearer the office? Should you give them more rest breaks if they get out of breath easily? Either of these things should be taken into account before looking at a performance review.
Make ‘reasonable adjustments’ where practical
Small changes like these are known as ‘reasonable adjustments’, which can be made either to a role or the work environment, to enable someone who could be disabled to remain at work.
However, how can you make ‘reasonable adjustments’ for something that is not a physical condition?
As we’ve mentioned, mental illness can be considered a disability in some cases, and there are ways to handle staff who suffer from conditions like anxiety or depression. For a start, don’t panic or jump to any conclusions. Take employees on a case by case basis, as their condition may not necessarily have any impact on work.
Once you’ve had chance to gain perspective on the employee’s condition, try to think about the long term impact it could have; not just on the business, but the employee too. How will this affect the employee, what might they have to stop doing? Might the condition fluctuate?
Seek medical advice to make an informed decision
One of the most important parts is to talk to the employee as well as seeking professional medical advice before making any judgements, that way you should have enough information to make informed decisions.
If the condition re-appears, it may then become something that could be classed as a disability. At this point, you will need to consider anything that is reasonable that could assist them in staying in, or returning to employment.
For example, if the employee has problems leaving their home, you could suggest they work remotely for a short period?
Or perhaps, if the employee struggles to get going in the morning, you can offer more flexible working hours – that way they are still given the opportunity to work when they can. But don’t forget that you only need to make ‘reasonable’ adjustments, the changes shouldn’t result in the business suffering unduly as a result.
Medical conditions and other physical disabilities are many and varied so it is not really surprising that this is a complex area, with definitions that are open to wide interpretation. However, if you take a common sense approach and communicate well with staff there is no need to be frightened of dealing with these issues.
If you ensure that your employment practices are fair and reasonable to all of your employees that want to do their job to the best of their ability, and you encourage open communication with them about the impact of their health on their ability to do their job then it is unlikely that you will find yourself in difficulty with staff who have longstanding medical conditions.
So our final point, as always when it comes to HR, is to treat all staff fairly and base decisions on reasonable job performance – as opposed to ideals of how you expect your employees to work for you.
About the author
This guide was written for ByteStart by Kirsty Senior, a Co-Founder and Director of citrusHR, the refreshingly simple HR support service for small business.
More help on ByteStart
For more tips and guidance on dealing with staff, try some of our other guides;
- How to prepare for and handle an employee grievance
- Guide to Automatic Enrolment Pensions – 12 key facts small businesses need to know
- What is a written statement of employment?
- The real cost of hiring your first employee
- Employment law changes businesses can expect in 2015
- Flexible working rights for all employees – what small businesses need to know
And here’s some help for you to get the most out of your staff;
- 5 ways to motivate your staff without spending a fortune
- How to attract and retain the best employees
- How setting up a salary sacrifice scheme can reward staff and mean lower tax bills for employers and employees
- A Guide to mindfulness in the workplace – how it can help staff wellbeing and productivity