May 23, 2013
The government launches a campaign today using TV celebrities and disabled groups to help promote positive role models for disabled people. It’s aimed at building on the latest stats that show 81 per cent of people thought the Paralympics had a positive impact on the way disabled people are perceived. Currently they’re not well represented in the workplace, as according to DTI figures half of all disabled people are unable to find work. This is why the Equality Act 2010 plays such a vital role in promoting diversity in the workplace. Put into practice, understanding and adhering to the Equality Act 2010 requires employers to take positive action to remove certain disadvantages to disabled people posed by working practices and the physical features of premises.
Access and adjustments in the workplace
Under the Equality Act 2010 the duty can arise where a disabled person is placed at a substantial disadvantage by:
• An employer’s provision, criterion or practice.
• A physical feature of the employer’s premises.
• An employer’s failure to provide an auxiliary aid.
The duty to make reasonable adjustments is unique to the protected characteristic of disability. Where the duty arises, the employer must effectively treat the disabled person more favourably than others in an attempt to reduce or remove that individual’s disadvantage.
What does this mean in practice for employers?
Firstly, employers should be aware that the obligation to make reasonable adjustments can apply to prospective employees. This means that adjustments may need to be made at interview stage to ensure that a disabled applicant is not put at disadvantage during the interview process.
An employer may not be aware that a candidate is disabled – no obligation to make adjustments will arise unless the employer knows or ought reasonably to know that a specific individual is disabled, and an employer is no longer permitted to make pre-employment health enquiries. Therefore unless they have been otherwise made aware of the disability no prior arrangements need to be made at pre-interview stage.
Where an individual has advised that a disability exists then the employer will need to consider what, if any, reasonable adjustments need to be made at the recruitment stage. There is often a fine line between whether or not an adjustment is reasonable, and employers should decide each case individually on its merits. It will normally be reasonable to make adjustments that enable a disabled candidate to take part in an assessment, for example, by providing disabled access or special equipment.
However, a requested adjustment that would result in the dilution of the entry standards for a job, for example where the job requires the employee to possess a particular skill – may not be reasonable.
With regard to adjustments that an employer may be required to make for existing employees or workers, the best policy is to consider what can be done to assist the individual in consultation with him/her and with assistance from an Occupational Health Professional. Adjustments must be work related and can range from simple adjustments to working processes, to acquiring ancillary equipment to enable an individual to perform their role.
Founder of Loch Associates, Pam Loch is a dual qualified lawyer acting for employers and employees and advising on all aspects of employment law. She is Managing Partner of niche employment law practice, Loch Associates Employment Lawyers and Managing Director of HR Advise Me Limited.