Dear HR Law Auntie

There have been so many changes in employment law over recent weeks, I am not sure we can keep up! We are all getting to grips with the implications of the statutory disciplinary and grievance procedures, however we have also become aware that there have been significant changes to the law on disability discrimination.

We have a physically disabled person coming in for an interview at our Company next week. Our building is set up for wheelchair access and therefore we do not have any issue with this. However, do I now need to tread more carefully because I am interviewing a disabled person? We are a small Company and I think some of this legislation puts a lot of pressure on us.

“In a dither about disability”, London


Dear “In a dither about disability”

The important matter is that you have identified disability as an issue within your organisation. However, it is worthwhile remembering that the legal definition of disability has always included mental impairments as well as physical impairments so the scope of protection is wider than you might initially think.

The first issue to be aware of is that the exemption for small businesses under the Disability Discrimination Act 1995 was removed with effect from 1 October 2004. So, even though as a smaller company you may find it more administratively burdensome to cope with the new legislation, compliance is mandatory and vital if you want to limit your exposure to claims of disability discrimination in the future.

Your recruitment process should be fair and open and decisions should not be made on a discriminatory basis. Whether or not the Company chooses to recruit this particular individual, you must remember that it is no longer possible for an employer to justify direct disability discrimination. So, for example, if you did not progress the application on the grounds of this individual’s disability, or you recruited him but treated him less favourably on the grounds of his disability, this would amount to automatically unlawful disability discrimination. You must also be careful about applying conditions to the employment which could arguably amount to direct disability discrimination (as well as potentially indirect disability discrimination). Disability differs from other forms of discrimination as a disability is inherently defined by its symptoms. The difference between direct and indirect disability discrimination under the new legislation is therefore a much murkier area. For example, it will be extremely rare that an employer will refuse to employ an individual for the express reason that he/she is wheelchair bound or suffers from narcolepsy, but more likely that they assert that they require an employee to be completely mobile or that they cannot risk an employee falling asleep every so often. In such circumstances, there is an argument that the symptoms and manifestation of the disability (to which the employer objects) is the actual disability – therefore an employer may be exposed to a potentially huge liability for direct disability discrimination which cannot be justified. Only time and case law will tell how this grey area will develop, but in the meantime, unless you can show, as a matter of evidence, that the relevant decisions taken by the Company did not involve such discrimination, you should tread carefully and keep as detailed and objective records of your decision making process as possible.

Another change in the law in this area means that the Company must also be aware that if this individual is recruited, the Company’s duty to make reasonable adjustments has also been extended. If your organisation fails to make any reasonable adjustments for the employee, the Company will be liable. The Company will no longer have the opportunity to raise justification as a defence to failure to make reasonable adjustments.

The new legislation has also introduced a new formal definition of harassment on the grounds of disability, which is expressly prohibited. This also increases the scope of protection for individuals with disabilities and, equally, means that employers will need to be increasingly vigilant about this in the work place. It may well be worthwhile revisiting training in this area to incorporate the new changes. Such training within the workforce may also assist your Company in defending any future claims.

Ultimately, the legislation is being brought in line with the legislation relating to sex and race discrimination. It may sound to your Company that employing an individual with a disability would be laden with risk and increase its exposure to claims. This is not necessarily the case. However, the Company must remain live to the issue of disability throughout the recruitment, employment and dismissal process.

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