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Employment law: Disability discrimination

Practices need to know the law and avoid discriminating against disabled staff.

Know the law regarding disability (Photograph: SPL)
Know the law regarding disability (Photograph: SPL)

Discriminating against a disabled employee is prohibited by the Disability Discrimination Act 1995. Employers that discriminate could find themselves facing a employment tribunal, claims and financial penalties if the case goes against them.

The Act defines a disabled person as someone who has a long-term (greater than 12 months) physical or mental impairment that substantially adversely affects day-to-day activities.

Impairment may include, for instance, learning disabilities or dyslexia but certain conditions do not count as impairment for the purposes of the Act.

These excluded conditions include addictions such as alcoholism, although a condition brought about via the addiction could be a disability that is covered - for example, depression, but not the alcoholism which caused the depression.

A person can be disabled even if their condition is controlled by medication or lifestyle changes.

The Act can also apply 'by association', so an employee who has a disabled child is protected, and reasonable adjustments would need to be made to enable them to care for their child.

The impairment must be sufficiently severe to adversely affect normal day-to-day activities, but it can also include highly specialised activities provided they are normal day-to-day activities for that person.

For discrimination to have taken place, the disabled person must have been subjected to an unlawful act - for example, regarding a job advert, recruitment, promotion, dismissal, post-employment matters - or to a detriment or harassment.

Claims can be brought against an employer for direct discrimination, harassment, victimisation, disability-related discrimination and failure to make reasonable workplace adjustments.


Avoiding disability discrimination

  • Don't make assumptions. What are the actual limitations resulting from the disability?
  • Ask what assistance is required and discuss it with the employee.
  • Make reasonable work-place adjustments. What is reasonable depends on the circumstances.
  • Key issues include the nature and size of the practice; whether the adjustment will prevent the problem; if an adjustment is practicable and the financial and other costs it will entail (including disruption); your resources and availability of financial/other assistance to implement the adjustment.
  • If you have made reasonable adjustments and then there is a discrimination claim concerning them, it will be easier to show that less favourable treatment was justified in the specific circumstances.

Martin Edwards is head of employment law at solicitors Mace & Jones, www.maceandjones.co.uk

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