The introduction of the Equality Act on 1st October 2010 has centred attention on discrimination once more. The Act brings together several pieces of existing discrimination legislation into one place but, at the same time, extends protection in far reaching ways.
One new provision brought in by the Act is the prohibition on asking an individual health questions before you offer them employment, apart from in certain restricted circumstances. You should no longer ask a job applicant to complete a health questionnaire before you offer them a job, or ask them questions in the interview about their general health or any disability they may have. If you do ask such questions and subsequently do not offer them the job, it may be open for them to claim at tribunal that the reason you didn’t offer the job was because of information that they provided you with in respect of their disability. Job applicants can make a discrimination claim at tribunal against you – not just employees.
Similarly where recruitment is concerned, if you receive a request for an application form in a different format e.g. larger font for an applicant who is partially sighted, you should do all that is reasonable to comply with that request.
Providing this altered format would be classed as a reasonable adjustment to your recruitment practices. Employers have a duty to make ‘reasonable adjustments’ to remove potential barriers that would put a disabled person at a disadvantage in the workplace. This can mean an alteration to a physical feature in the workplace, for example, obtaining a specialised mouse for an employee who has dexterity problems. This could also encompass altering a disabled employee’s starting times if their disability means that they have problems travelling in rush hour traffic.
If a person is not visibly disabled, it will not be immediately apparent that your duty to consider reasonable adjustments may be triggered. If you do not know, or you could not reasonably be expected to have known, that an employee has a disability, then you cannot be expected to make adjustments. What the employer should be wary of, in these circumstances, is where an employee’s performance begins to falter. Such issues should be investigated without delay to determine whether the reason for the change in performance is a disability and reasonable adjustments should be looked at if it is. If these investigations are not made, and the decline is attributable to a disability, any ensuing disciplinary procedure may be considered less favourable treatment.
It now no longer needs to be the employee themselves who suffers from a disability for a claim of disability discrimination to be made. The concept of associative discrimination is covered in the Equality Act, and makes it possible for an employee to claim that an employer is discriminating against them because of their association with someone else (wife, child, parent etc) who does not work for you but who does have a disability. Employers should be particularly aware of this concept when dealing with an employee who may have a high level of absence which is attributable to another person’s disability.
Top tips:
• do not ask health related questions before an offer of employment is made e.g. at the interview stage;
• comply with reasonable requests for different formats of recruitment practices;
• investigate instances of declining performance to determine if it is disability related;
• take care when dealing with employees who you know are associated with someone with a disability;
• make reasonable adjustments where necessary.
For more information on any of the issues raised in this piece, call the Advice Service on 0844 892 2772.
