Employing disabled employees

Professor Diana Klossbarrister

What is a disability?

• Relevant to welfare benefits• Work Capability Assessment (ESA)• Disability Living Allowance (PIP)• Industrial injuries disablement benefit (IIDB)

• Disabled parking badge (Blue badge)

• Equality Act 2010

Equality Act 2010

• Disability is a protected characteristic (along with age, sex, pregnancy, gender reassignment, marriage and civil partnership, sexual orientation, race, religion or belief)

• That means that an employer must not discriminate on grounds of a protected characteristic against workers or job applicants

• A claim of unlawful discrimination can be made to an employment tribunal

Definition of disability

• A physical or mental impairment• That is long term (has already or is likely to last

for at least 12 months) and• Has a substantial adverse effect on• Normal day to day activities

• Cancer, HIV and MS are disabilities from diagnosis

What is an impairment?

• A genetic defect is not an impairment until some symptoms appear

• Obesity is not an impairment by itself, but may be if it has substantial adverse effects

• Walker v Sita (2013)• A mental impairment does not have to be a

recognised mental illness• J v DLA Piper (2010)• Hypertension/hypotension??

Normal day to day activities

• These may be work activities if they are things which are not exclusive to work

• Eg writing, reading, walking, climbing stairs

• Ring case (ECJ) (2013)• Adopts biopsychosocial definition of disability ie

concentrates not so much on degree of impairment as on whether the person is hindered in professional life, based on the UN Convention on Persons with Disabilities

• Stigma is as important as functional incapacity

• The condition is assessed without medication, prosthesis or other aid, eg diabetes without insulin, deafness without a hearing aid, impaired sight without a guide dog

• A recurrent condition is assessed as long term even though there are breaks where symptoms improve eg depression, bipolar disorder, arthritis

• The question is whether the symptoms are ‘likely’ to recur

• SCA v Boyle (2009)

Progressive conditions

• These are disabilities as soon as the condition has some effect on normal day to day activities, even if not yet substantial, as long as that is likely to worsen over time

• Eg muscular dystrophy, dementia, motor neurone disease

Past disability

• Discrimination against someone who had a disability in the past but is now completely well is unlawful

• Eg refusing to promote someone who suffered from cancer five years ago but is now clear because of a fear that the cancer may recur

Severe disfigurements

• These are disabilities even if they do not interfere with normal day to day activities

• Except if self-inflicted eg tattoos, piercings

• Addiction to a substance is not a protected disability, though the effects of it may be, eg cirrhosis of the liver, psychosis induced by drugs

Who decides?

• Whether someone has a disability is a legal, not a medical, question

• Abadeh v BT (2001)• Gallop v Newport Council (2013)

Jane, aged 25

• She is a machine operator on shift work in a factory

• She has epilepsy and had a few fits in her childhood, though her condition is now well controlled with drugs

• Is she disabled?

Rukshana, aged 43

• She applies for a job as a care assistant in a residential home for the elderly

• She tells the employer that she has not worked for the past six months because she has been having treatment for breast cancer, but her specialist says the prognosis is good

• Is she disabled?

Mike, aged 55

• He is a senior manager in a chemical factory with considerable responsibility

• He has been off work sick for nine months with depression after his son was killed in an accident

• He hopes to come back to work, though still taking anti-depressants and seeing a counsellor

• Is he disabled?

Hussein, aged 32

• He works as a production worker in a factory. He suffers from asthma which means that he has regular absences from work lasting several days especially in the winter. Last year, which was particularly bad, he was absent for about 20% of his working time.

• Is he disabled?• Whiteley v HMRC (2013)

Samantha, aged 48

• She works as a police officer in the uniform branch She is going through the menopause and has recently put on a lot of weight She finds it more difficult to walk and run than before She has high blood pressure for which she has been prescribed drugs

• Is she disabled?