Disability and Work (Discapacidad y trabajo)

8/4/2019 Disability and Work (Discapacidad y trabajo)

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DISABILITY AND WORKA trade union guide to the law and good practice

Revised edition 2011

t


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Preface 3

Part One Introduction: challenging disability discrimination 4

Part Two The law on disability discrimination

A new legal ramework 6

Code o Practice and Guidance 7

Coverage o the law 7

Denition o disability 8

Case law and the denition o disability 8

Prohibited discrimination 9

Reasonable adjustments 10

Disability and health-related questions in recruitment 14

Occupational pensions 14The equality duty 15

Part Three Disabled people at work: good practice

Recruitment procedures 19

Perormance-related pay and bonuses 21

Sickness absence and disability 22

Redundancy and redeployment 25

Occupational health 28

Health and saety 28

The Access to Work scheme 29

Mental health 31

Neurodiversity 32

Training 33

Part Four Monitoring disability

Using the results 35

Summary 35

Part Five Resources 36

Appendix Example o a disability leave policy 38

CONTENTS


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PREFACE

When the TUC published Disability and Workin 2006, steady progress was being madetowards the goal o achieving equality orBritains ten million disabled people. Unionswere making a growing contribution towardsthe elimination o disability discrimination inemployment.

The onset o recession in 2008, ollowedby the announcement o large-scale cuts in

the public sector, where a disproportionatenumber o disabled people work, andsweeping reorms o the benets system,represented a setback to that progress.In the same period, the passing into law othe Equality Act 2010 created a single statuteout o all the preceding equality legislation,including the Disability Discrimination Act,and rom April 2011 a new, single publicsector equality duty incorporated the previ-ous disability equality duty, with a signicantchange o approach.

Unions now ace new challenges: and theseinclude ensuring air treatment or disabledmembers. This new edition o Disability andWork not only explains the new law, it alsohighlights good practice on the issues thatunion representatives are likely to be acedwith in the workplace.

Disabled people continue to ace severebarriers to participation and equality across

society: unions can help to challenge these bytackling discrimination at work, by negotiat-ing good policy and ensuring that employersadopt a positive approach to the employmento disabled people.

This revised edition o Disability and Work isdesigned to help representatives achieve thisgoal. I commend it to you.

Brendan BarberGeneral SecretaryTrades Union Congress.


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PART ONE: INTRODUCTION

During the 10 years rom 1998, there wasa welcome increase in the employment rate

or disabled people. However, at the point atwhich the UK economy went into recessionin 2008, it still stood at less than 50 per cento disabled people o working age, a ull 25per cent less than the employment rate ornon-disabled people. From then on, therehas been no urther improvement, and tradeunions are deeply concerned that the positionmay worsen through the period o publicsector cuts that came into eect rom 2010.

It is well known that the overall statisticconceals many dierent realities. People withmental illness issues have an employment rateo little more than 10 per cent and peopleidentied as having severe or specic learningdiculties only 15 per cent. Disabled peopleare disproportionately likely to have ewerqualications, as a result o discriminationaced during childhood, and only 18 percent o disabled people without qualicationshave jobs.

The raw statistics conrm that, despitethe outlawing o discrimination with theintroduction o the Disability DiscriminationAct in 1995, disabled people in general anddisabled people o working age in particularcontinue to ace enormous barriers insecuring their right to equal access and equaltreatment. A number o reasons explainwhy this is the situation, but the largest

barrier remains discrimination. Signicantprogress has been made in improving theunderstanding o employers and workersalike that disability discrimination is wrong

both legally and morally, but it is essentialto continue to press the case or disability

equality i the progress is not to be haltedor reversed.

The welare reorm agenda initiated underthe Labour Government has been made eventougher under the coalition governmentelected in 2010. The trade unions had sharedwith government the underlying objectiveo encouraging disabled people on benetsinto work, but rejected the punitive steps thathave in act been introduced, aimed more

at saving money than really assisting peopleovercome the barriers to employment chieamong them the reluctance o employers torecruit them.

The reality is that social attitudes remain anenormous barrier to equality. At least peoplehave been made aware o the horrendousexamples o hate crime committed againstdisabled people or no other reason than theirimpairment, but there is much less awareness

that these extreme cases start with the low-level abuse and contempt that too manydisabled people ace every day.

The TUC endorses the social model odisability, in which the interaction o anindividuals impairment(s) with the barriersthey ace is the disability, not the individualsimpairment. But the law remains rooted ina medical model, in which the problem isthe impairment. Nonetheless, as a result osome good legal judgements interpretingthe Disability Discrimination Act, and thereplacement o the DDA by the all-embracingEquality Act 2010, there is now more

CHALLENGING DISABILITY DISCRIMINATION


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scope than existed at the time the DDAwas introduced to use the law as a lever to

improve employers practices.The public sector equality duty introduced inthe revised DDA 2005 was rightly seen bothby unions and by disabled people in generalas a critical opportunity to make signicantprogress towards equality in employmentand in service provision. This duty has beenmerged into a single duty covering all areaso equality in the Equality Act 2010. Once thenew, simplied, duty is in orce (April 2011),

it is certain that unions will have to take aneven more assertive role in the public sector ithe gains previously made are to be sustainedand spread. The law has also changed at aninternational level, with the ratication by theUK o the ground-breaking UN Conventionon the Rights o People with Disabilities.

Trade unions and disabled workers thereoreace a new reality. New laws, a new economicsituation, and new government policies

between them make it vital that unionocers and workplace representatives are ina position to challenge discrimination withinthe workplace and to promote equality.Unions will need to listen careully to thevoices o their disabled members.

In part two o this booklet, the relevant lawis set out. Part three examines commonworkplace issues or disabled workers romthe viewpoint o good practice. Part ourconsiders good practice on monitoringdisability. The nal section lists resources orunions to use.


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IMPORTANT NOTE

Nothing in this booklet should be considered

a denitive statement o the law, which ispresented as it appears at December 2010.

A new legal rameworkUnderpinning the whole approach o theEquality Act to discrimination against disabledpeople is the explicit understanding that,because o the additional barriers they ace,the law requires that disabled people canbe treated MORE avourably than their non-disabled colleagues. Understanding this,and the reasons or it, is crucial to removingthe barriers that continue to deny disabledpeople equality o outcome in work and morebroadly.

The Disability Discrimination Act has beenreplaced in its entirety by the Equality Act2010, the main provisions o which came intoorce in October 2010, and the new equality

duty rom April 2011 (the previous disabilityequality duty remained in orce betweenOctober 2010 and April 2011). The EqualityAct has made a number o changes to thelaw on disability discrimination, the mostsignicant being that it:

l extends the coverage to people whowere not previously protected againstdisability discrimination

lmodies the denition o directdiscrimination, and creates a neworm o discrimination altogether,discrimination arising rom disability.

This has been done to remedy theconsequences o the 2008 House oLords ruling in the case o Malcolm,

which had eectively eliminatedthe category o disability relateddiscrimination that had existed inthe DDA

l creates a new category o indirectdisability discrimination, and extends theduty to make reasonable adjustments

l adds a separate category o disabilityharassment or the rst time and

extends the protection againstvictimisation

l outlaws the asking o questions abouthealth or disability except in specicand narrowly dened circumstances which is potentially o great importancein dealing with discrimination in therecruitment process

l creates the category o combined

discrimination.

The UN Convention on the Rights o Peoplewith Disabilities provides a ramework againstwhich UK law can be tested. Parliamentratied the Convention on the understandingthat British law was compliant with it, atertaking into account specic reservations andexemptions that the government had put inplace, against the wishes o disabled peoples

organisations and the TUC. Although it canbe cited in legal proceedings, the Conventionis unlikely to have much direct impactin the eld o disabled peoples rights inemployment.

PART TWOTHE LAW ON DISABILITY DISCRIMINATION


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XXX

l managing workers

l dismissal, redundancy and retirement

l good equality practice. This last is notprovided in the set or workers.

This guidance does not constitute adenitive statement o the law, but it laysout clearly what the law means in manypractical situations.

Coverage o the law

It has long been a complaint that the DDA didnot extend to cover many people who shouldbe seen as disabled, while it did cover otherswho did not regard themselves as disabled,and were thereore unaware o the protectionavailable. Although the Equality Act maintainsthe medical model denition o disabilitythat unions regard as the wrong approach, itis essential that ocers and representativesunderstand who is, and who is not, protectedagainst disability discrimination, as manyemployment tribunal cases continue to turnon the employer disputing that the workeris disabled.

All employers o whatever size are covered bythe Equality Act and workers are protected byit everywhere except in the armed orces. Thisincludes workers outside the UK (providedthe employment is connected to the UK),contract workers, oce holders, partners in

rms, police ocers, barristers, and peopleundertaking work experience or the purposeo vocational training. The law also coversreghters, prison ocers, employees on

Union representatives and negotiators willnot want to resort to legal remedies unlessabsolutely necessary, but it is important that

they understand what the law requires othe employer, in order that they can use it tomaximum eect as a negotiating tool.

Code o Practice and GuidanceThe separate Codes o Practice issued by theormer Disability Rights Commission, whichoered clear guidance on many aspectso disability discrimination law, have been

withdrawn and can no longer be used. Intheir place there is now a single Code oPractice on employment prepared by theEquality and Human Rights Commission(EHRC), which has statutory orce (that is, itcan be cited in legal proceedings). This Codeis a detailed interpretation o the law and isnot easily accessible to lay people. The TUCrecommends instead that union ocersand representatives download copies othe EHRCs Guidance or Employers, and its

Guidance or workers, which present a clearaccount o what the law means in practice.There are seven separate guides or employersand six or workers available rom www.equalityhumanrights.com. The titles cover theapplication o the Equality Act in:

l recruitment

l working hours

l pay and benets

l training and development andpromotion

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PART TWO

Some conditions are specically included.These include chronic conditions such as

diabetes and asthma, and fuctuating butprogressive conditions such as rheumatoidarthritis or motor neurone disease. Peoplewith cancer, multiple sclerosis and HIV/AIDSare automatically covered rom the point odiagnosis. Anyone certied as blind or sightimpaired is also automatically covered.

People with severe disgurements (but nottattoos) are protected, without having todemonstrate any adverse eect.

A ew conditions are specically excluded:these include addiction to alcohol ornicotine, hay ever, and the tendencies to setres, steal, abuse others, exhibitionism orvoyeurism.

Mental impairments are listed asdevelopmental conditions such as autisticspectrum disorders, dyslexia and dyspraxia,and mental health conditions such as

depression, schizophrenia, bipolar aectivedisorders, and obsessive compulsive disorders.

Case law and the defnition odisabilityWhen employers reject the notion that aworker is disabled because their conditiondoes not match the laws denition o longterm, there is existing case law that can assist

the union to demonstrate otherwise.In the case o Patel v. (1) OldhamMetropolitan Borough Council and (2)

governing body o Ruschcrot Primary School,the Employment Appeal Tribunal (EAT) ruledthat it was air to add together the eects otwo separate impairments where the secondhad developed because o the rst, eventhough they were dierent conditions andthe ormer had not lasted 12 months.

The Guidance on matters to be taken intoaccount in determining questions relatingto the defnition o disabilityissued by the

ships, planes and hovercrat registered in theUK, and workers on UK-owned oil rigs.

The Equality Act has extended protectionrom discrimination and harassment to peoplewho are wrongly perceived as being disabled,and to those who may be treated lessavourably because o a link (association) witha disabled person. This extension arose rom alegal case (Coleman v. Attridge Law) in which,ollowing a European Court ruling, UK lawwas reinterpreted to apply where someoneaced discrimination or harassment by reason

o the disability o another person. Thereore,an employer who discriminates against orharasses a worker because o their associationwith a disabled person (or example, becauseo their caring responsibilities to a child orother relative) might be guilty o disabilitydiscrimination.

Defnition o disability

The denition o a disabled person isotherwise little changed. It continues to bebased on the ormula o someone with a

physical or mental impairment that has asubstantial adverse impacton their abilityto carry out normal day-to-day activities. Akey eature is that the impact must be long-term, that is, it has lasted, or will last, atleast 12 months. The DDA list o capacitiesthat might be aected by an impairment hasbeen removed rom the law, but this, while

welcome, is not likely to have much impact.

It is important, especially in cases o (orexample) mental illness, that an individualwho has been disabled in the past is stillprotected against disability discriminationeven though they no longer have thecondition.

Where the consequences o an impairment(but not the impairment itsel) are alleviated

by some orm o treatment, then thetreatment is ignored or the purposes o thelaw. The only exception is wearing glasses orcontact lenses.


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THE LAW ON DISABILITY DISCRIMINATION

Oce or Disability Issues conrms that, i animpairment has a substantial adverse impact

on someones ability to carry out normalday-to-day activities, it is to be treated ascontinuing i it is likely to recur. Conditionswith eects which recur only sporadicallyor or short periods can still qualiy asimpairments or the purposes o the Act inrespect o the meaning o long-term.

However, the same guidance uses an exampleo someone who has two separate episodeso depression within one year, with dierent

causes and no evidence o there being anunderlying condition o depression, whowould not meet the 12-month rule andwould thereore not be protected by the Act.

A common problem aced by workers seekingthe protection o the Act in the past hasbeen where they have a fuctuating conditionthat has not lasted or a single period o12 months or has recurred but ater more

than a 12-month interval. In these and othercircumstances, the success o a claim ordisability discrimination will depend cruciallyon there being medical evidence o anunderlying condition, and o the likelihoodo recurrence. The Equality Act has clariedthat the meaning o likely or this purposeis may well happen, and this is a broaderdenition that is easier to meet than theprevious denition.

The courts have also had to clariy whatcounts as a normal day-to-day activity. Inthe case o Pearson v. Metropolitan PoliceCommissioner, the EAT ruled that nightshit working could count as a normalday-to-day activity.

The ODI Guidance ... relating to the defnitiono disabilityhelpully states that manytypes o work... may involve normal day-to-day activities... sitting down, standing up,

walking... writing, using everyday objectssuch as a keyboard, and liting, moving orcarrying everyday objects such as chairs.

Representatives should thereore considercareully the ordinariness o the activities

their member aces diculty in doing, i theemployer reuses to accept that they aredisabled in the terms o the Equality Act.

Prohibited discriminationThe Act outlaws direct discrimination, indirectdiscrimination, discrimination arising romdisability, and harassment. It is unlawulor an employer to discriminate against a

disabled personl in recruitment

l in terms o employment

l in opportunities or promotion, transer,training or any other benet

l by dismissal or any other detriment

l by discrimination ater the employment

has ended.

It is unlikely that unions will encounter directdiscrimination in most workplaces, unlessaced with a particularly ignorant or oolishmanager or employer. Direct discriminationoccurs where a disabled person receivesworse treatment than a non-disabled personbecause o their disability. It is incapable obeing justied in legal proceedings.

Indirect disability discrimination is new. In linewith indirect discrimination in other areas oequality, it applies where a provision, criterionor practice applying to everyone has particular

The most important step that a unionrepresentative can take i there is anydispute with the employer over whethera member is disabled is to ensure thatthey obtain clear medical evidence.In some cases (or example, mental

health conditions) this may need to berom a mental health specialist ratherthan just a GP.


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PART TWO

on the grounds o two relevant protectedcharacteristics. The protected characteristics are:

l age

l disability

l gender reassignment

l race

l religion or belie

l sex

l sexual orientation.

The positive impact o this measure is that acomplainant does not have to demonstratethat the discrimination has taken place oneach o the alleged grounds taken separately.However, the only orm o prohibited conductcovered by this clause is direct discrimination,so it is unlikely to be used much.

Reasonable adjustmentsThis was the lynchpin o the DDA, and themost signicant element o the EqualityAct or trade unions and disabled workerscontinues to be the duty on employersto make reasonable adjustments where adisabled worker would be at a substantialdisadvantage compared with their non-disabled colleagues. It covers provisions,criteria and practices, physical eatures and

provision o auxiliary aids. Failure to makethe relevant adjustments is a breach o thelaw and cannot be justied.

The reerence in the Act to physical eatureso the premises species that this includes:

l removing it;

l altering it; or

l

providing a reasonable means oavoiding it.

disadvantages or people with particulardisabilities compared with people who do not

have that disability, and where the provision,criterion or practice cannot be justied asmeeting a legitimate objective. It is notanticipated that this provision will be muchused, because almost every situation thatcan be envisaged would trigger the dutyon the employer to consider making areasonable adjustment.

Discrimination arising rom disability isanother new provision, introduced to reverse

the House o Lords ruling in the Malcolm v.London Borough o Lewisham case in 2008.The provision reers to situations where adisabled person is treated less avourablybecause o something connected with theirdisability, and where the treatment cannot be

justied. It applies only where the employerknows, and could reasonably be expected toknow, that the person is disabled. Unlike theprovision o the DDA that it replaces, it is not

necessary to have a comparator to prove acase. The reinstatement o this protection islikely to be o considerable use to unions inarguing against the use o employer practicesthat ail to take into account a membersdisability: or example, disciplinary actionagainst a member or poor time-keeping thatis a result o their disability and which couldbe remedied by the making o adjustments toworking hours (see next section).

The specic outlawing o harassment unwanted behaviour related to disabilitythat has the purpose or eect o violating apersons dignity or creating an intimidating,hostile, degrading, humiliating or oensiveenvironment is also carried over into theEquality Act rom the DDA. While unionshave welcomed this, the reality is that almostall cases o disability harassment wouldanyway have been dealt with under the direct

discrimination provisions.The new category o combined discriminationmakes it possible to claim a breach o the Act

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PART TWO


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In the case o Wilson v. Secretary o State

or Work and Pensions, (2010), however,the EAT decided that it was not a reasonableadjustment or the employer to allow theworker, who was agoraphobic, to workrom home as a result o the closure o theirprevious workplace, because the particular

job required supervision: thereore theproposed adjustment did not meet the rstcriterion.

The issue o resources is not one that any

large employer will be able to argue. Theextent o resources will be determined bythe size o the whole organisation, not onlythose o the immediate department. Wherethe organisation is small, the availability onancial support rom agencies such as theAccess to Work scheme will also be relevant(see page 29).

Types of adjustments and their limits

The EHRC Guidance or Employers: whenyou recruit someone to work or you,setsout many practical examples o reasonable

The law orbids the employer making the

disabled worker in question pay or theadjustment.

The previous criteria continue to apply indeciding whether the proposed adjustmentis reasonable. The reasonableness o anadjustment is determined by:

l whether it is eective

l whether it is practical

l what it costs

l the resources o the organisation

l the availability o nancial support (orexample, the Access to Work scheme).

Reasonableness

The adjustment has to remedy thedisadvantage. Case law has conrmed that

even where this turns out not to be theoutcome, the employer is obliged to haveinvestigated what adjustments might work.

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PART TWO

l

modiying instructions or reerencemanuals

l modiying procedures or testing orassessment (or example, an oral ratherthan written test or someone withlimited manual dexterity)

l providing a reader or interpreter (orsomeone with a visual impairment)

l allowing a disabled worker to takea period o disability leave (see nextsection)

l employing a support worker

l modiying disciplinary or grievanceprocedures

l adjusting redundancy selection criteria(see next section)

lmodiying perormance-related payarrangements (see next section)

l a combination o any o theabove according to the individualcircumstances.

adjustments that employers would beexpected to make.

The list o possible adjustments providedin Codes o Practice or the DDA has beenremoved but the same examples are givenin the EHRC guidance. They cover suchpossibilities as:

l making physical changes to the premises(such as widening doors, providingramps, relocating switches and handles,changing the decor or visually impaired

people)

l altering the disabled persons duties byreallocating some o these to colleagues,or moving them to a dierent location

l transerring the disabled person to avacant position (see theArchibaldcasebelow)

l altering the persons hours o work or

trainingl allowing the person to be absent

during working hours or rehabilitation,assessment or treatment

l giving or arranging mentoring (includingor people other than the disabledperson

l acquiring or modiying equipment (such

as adapted keyboards, large screens,adapted telephones)

ExampleA Unite rep negotiated withmanagement in the nance sector inthe North West or a member with alearning disability to have access to amentor on a monthly basis (achieved atthe nal stage o a grievance hearing).

Example

A trade union disability championsourced a grant or a new keyboard,screen and hand-held magnier ora partially sighted member in themotor components industry. The unionbrought the grant to the attentiono the employer, who agreed theadjustments.

Example

A Unite rep in the not-or-prot sectorin the East Midlands negotiatedthat a member could work at homewhen their condition (broids andmenopausal complications) becameparticularly dicult at work.


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The EAT in Walters v. Fareham CollegeCorporation (2009) conrmed that it was

not essential to produce a comparator toprove a claim o ailure to make reasonableadjustments when the acts o a case spokeor themselves: it was necessary only to showthat someone who did not have a disabilitywould have been treated dierently.

The issue o whether the employer knew,or could be expected to have known, thatthe worker was disabled, was dealt with inthe case o Secretary o State or Work and

Pensions v. Alam,where the EAT decided thatthe duty to make reasonable adjustments didnot arise i the employer neither knew, norought to have known, that the worker wasdisabled and required adjustments.

The courts have been markedly less helpulin claims o a ailure to make reasonableadjustments in cases where disabled peoplehave been disciplined or sickness absence,

and have ruled out altogether the possibilityo disabled sta claiming sick pay above oror longer than allowed to non-disabled sta(see next section).

Time limits

The three-month time limit or submittingclaims to an employment tribunal cancause problems when considering whento submit a claim or a ailure to make a

reasonable adjustment. I having pointed outto the employer the need or a reasonableadjustment, the adjustment is not carriedout within the three-month period, it will besaest to issue proceedings beore the expiryo that time limit to avoid the risk o beingstruck out, as there are confictinglegal rulings on when the time limit runsrom. Where the impairment was mentalhealth, however, the EAT ruled in Carter v.London Underground Ltd and Transport orLondon (2009) that it was reasonable toextend the time limit on the basis that theclaimants depression aected his ability totake such decisions.

All o these are spelled out in the EHRCguidance as examples o reasonable

adjustments. Unions may need to drawthem directly to the attention o employersto point out that ailure to consider themmay constitute a breach o their duty tomake reasonable adjustments, a ailure thatdoes not allow or being justied in legalproceedings.

A large part o case law on disabilitydiscrimination concerns the extent o the dutyo reasonable adjustment. A number o major

cases have set important precedents.

The ruling o the House o Lords in 2004(Archibald v. Fie Council) that it was areasonable adjustment or a large employerto oer a higher-grade vacant oce post toa worker who had become unable, throughan impairment, to continue doing theiroriginal (manual) job was a crucial decisionin conrming the extent o the reasonable

adjustment duty, and that it was right to treata disabled worker more avourably in orderto comply with the legal duty. This rulingremains in orce.

The EAT ruled in the case o SouthamptonCity College v. Randall(2006) that the lawdid not preclude an employer creating apost specically or a disabled employee tosubstitute or the job that the disabled personcould no longer do, depending on the acts

o the particular case, which in this casewere that the employer was undergoing asubstantial reorganisation and this option wasclearly available to them.

A similar line o reasoning was ollowedby the same tribunal in the case o ChieConstable o South Yorkshire Police v. Jelic(2010) where it was judged that it wouldhave been reasonable or an ocer withchronic anxiety syndrome either to swap

jobs with another ocer, or to take medicalretirement and then be re-employed into acivilian support role.


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is able to do the job, while rememberingthe legal obligation to consider reasonable

adjustments i necessary.

It is permissible to ask the questions in limitedcircumstances:

l when asking i the candidate needsreasonable adjustments or the interview

l to establish whether a candidate is ableto take part in particular aspects o therecruitment process

l where monitoring o applicants is takingplace to check diversity (and where theinormation is kept separately rom thepeople doing the recruitment)

l where the employer has a guaranteedinterview scheme or disabled applicants(the Two Ticks scheme see page 20)

l where having an impairment is anoccupational requirement or the job

l where the ability to carry out a particularunction is undamental to the job (theEHRC guidance gives the example oscaolders).

Breaches o this provision have to be dealtwith by the EHRC. However, i an individualwas asked questions and then had the oero a job withdrawn, they would be able tobring a claim or disability discrimination.

The relevance to unions o this welcomestrengthening o the law may be limited,but it is important that negotiators whoare able to discuss recruitment policies andprocedures with the employer ensure thatthese procedures have been modied to takeaccount o the new prohibition.

Occupational pensionsThe Equality Act covers occupational pensionschemes and group insurance schemes, aspart o a general prohibition o discrimination

Disability and health-related questionsin recruitmentThe Equality Act contains a new provisionthat has been lobbied or by disabledpeoples organisations and unions or many

years: it is now illegal or an employer toask questions about health or disabilityuntil an oer o the job has already beenmade, or the candidate has been includedin a pool to be oered employment (orexample, when a new workplace is about tobe opened). This includes questions relatingto previous sickness absence. It is also illegalto have these questions asked by another:or example, sending candidates to anoccupational health practitioner beore theoer o a job is made.

Once a job has been oered, the employercan carry out checks to ensure the candidate

Key points or union

representatives aboutreasonable adjustmentsRemember that discussion with thedisabled worker is the only way toestablish what adjustments are needed.

Remember that the adjustmentasked or must be able to remove thedisadvantage.

Remember that most adjustments

cost little or nothing and that Accessto Work unding may be available ineeded (see page 29).

Remember that the law allows anemployer to treat a disabled workermore avourably i this is necessary toremove the disadvantage.

Remember, i the employer delaysmaking the adjustment, there is a

three-month period in which to issueproceedings beore an employmenttribunal.


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eatures o the new duty and how these canbest be used to encourage public bodiesto become champions o equality or theirworkers and their communities.

The new duty states that a public body and any other person or body exercising a

against disabled employees regardingemployee benets.

It is unlawul or a pension scheme to reusemembership or oer less avourable termso membership to a disabled person, orexample in the situation where an applicantto join the scheme was known to have animpairment that might lead to them takingearly retirement.

The duty o reasonable adjustment alsoapplies. The EHRC guidance oers the

example o a nal salary pension scheme thatbases the pension on the nal years salary.In the example, a worker with long servicedevelops a condition leading them to reducetheir hours in the years beore retirement. Theschemes rules would mean that their pensionwas calculated on these part-time earnings.It would be a reasonable adjustment orthe trustees to recalculate the nal salary byamalgamating the part-time years to achieve

a ull-time salary level, but over a reducedtotal number o years.

The duty also covers the way in whichinormation is provided communicationsmay need to be in Braille, on CD or tape orthrough interpreters at meetings. Where thescheme rules are in confict with the law,the rules need to be changed to becomecompliant.

The equality dutyThe disability equality duty introduced in2006 is merged through the Equality Actwith a single equality duty embracing allequality areas rom April 2011. Disabledpeoples organisations and the trade unionswere deeply disappointed that some o themost useul eatures o the 2006 duty havebeen lost as a result o the merger, and asa result o the political decision to limit the

burdens placed on public bodies by havingthe duty to promote equality. In light o theseretreats, it is all the more important or unionnegotiators to become aware o the main

Where, in response to the previousdisability equality duty a public bodyhas put in place measures such asa reviewable equality scheme andsystems or involving disabled peoplein their plans, unions should pressthe organisation to maintain these

structures even though they will nolonger be obligatory under the singleequality duty.

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The provisions or enorcement are the sameas beore: breaches o the general dutycan be challenged by judicial review, whileenorcement action against a public bodyon the specic duties can be taken only bythe EHRC.

What is missing

The equality duty established by the DDA

2005 had requirements that were additionalto the general duties such as those nowreproduced in the Equality Act, and thesewere spelled out in the orm o specicduties. These included provisions toensure that public bodies made a genuinecommitment to achieving the objectives setout in the general duties by taking stepsknown rom experience to produce realchange.

Central to these were the duties to undertakean assessment o the impact o proposedchanges in policy (etc) on disabled people,to prepare concrete action plans, and to

public unction must, in the exercise o itsunctions, have due regardto the need to:

eliminate discrimination, harassment,victimisation and any other conductthat is prohibited by or under this Act;

advance equality o opportunitybetween persons who share a relevant

protected characteristic and those whodo not share it;

oster good relations between personswho share a relevant protected

characteristic and persons who do notshare it.

In doing this, the public body is required toremove or minimise disadvantages, takesteps to meet the needs o persons whoshare a relevant protected characteristic thatare dierent rom the needs o persons whodo not share it, and encourage them toparticipate in public lie.

The duty recognises the steps involved inmeeting the needs o disabled people thatare dierent rom the needs o persons whoare not disabled, in particular, steps to takeaccount o disabled persons disabilities. Inaddition, the law recognises that compliancewith the duties... may involve treating somepersons more avourably than others.

Who is covered

Public bodies or those carrying out publicunctions are covered by the general duty.The law then lists which public bodies arealso liable to the specic duties, a list that canbe amended by ministers through secondarylegislation (regulations). The current listincludes government departments (except thesecurity services), armed orces, the NHS, localgovernment including re and rescue services,passenger transport executives (including

Transport or London), local educationauthorities and higher education governingbodies, and the police. The same coverage isextended to Wales and Scotland.

PART TWO

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actively involve disabled people both in thepreparation o such plans and in monitoring

progress.

The Equality Act permits ministers to imposespecic duties by secondary legislation(regulation). The new specic duties stripaway the previous obligations. In theirplace, public bodies will be let to decideor themselves whether to engage withcitizens, but will be obliged to publish data oninormation relating to its perormance (othe equality duty) annually, including data on

its employees (although only or organisationsemploying more than 150 people thereore many schools, or example, willnot be required to monitor their workorce),assessments o the impacts o its policies, andwhat inormation was used to arrive at theseassessments, including any engagement withinterested (e.g. disabled ) persons. Startingin 2012, public bodies are obliged to publishone or more equality objectives (that it

believes to be reasonable), which must bespecic and measurable, then repeat thisevery our years.

The new approach is based on reeingorganisations rom bureaucratic, nationallyimposed processes, and ocusing on makingthem accountable at a local level. It is verylikely that many public bodies that havealready put these structures in place tocomply with the previous duties will be

pleased to drop them. However limited thenew specic duties, the requirement to makethe data available to the public does allowtrade unions to analyse the reports and toseek to hold the public body to account orany weaknesses disclosed.

The union is covered tooTrade unions count as trade associations

under the law and need to know that theyare also covered by the Equality Act. A unionsduty to its members mirrors the duties placedon employers and service providers. It would

be illegal to discriminate against members orapplicants on the grounds o disability, andall union services must be provided withoutdiscrimination. This includes:

l access to training, conerences and otherevents

l providing union publications in whateverormat a member requires

l the same level o representation as isprovided to a non-disabled member

l access to the same benets as a non-disabled member

l the same access to union meetings

l the same ability to participate in unionelections (including, or example,adjusting election procedures or visually

impaired members).In practice, these obligations require theunion to ensure that meetings are inaccessible venues and that there are suitableparking and toilet acilities.

Training in equality law is essential or ocersand sta and the union is legally responsibleor the actions o anyone acting in its name,including lay representatives.

The most important lever or trade

unions and community organisationsis to remember that, however muchthe previous obligations placed onpublic bodies by the specic dutieshave been reduced, such organisationsstill have to comply with the generalduties. They will not have done so ithey cannot demonstrate the actwith evidence.


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Part two o this booklet summarised thelaw on disability discrimination as it aectspeople at work. Union representatives

always seek to secure agreement with theemployer rather than submit to the stress anduncertainty o resorting to an employmenttribunal. However, being amiliar with thekey responsibilities placed by the EqualityAct 2010 on every employer gives the unionseveral useul negotiating tools.

The most important obligation on everyemployer, rom the viewpoint o every

workplace, is that they are required toconsider making adjustments to remove thedisadvantage that disabled workers mayace in doing their job, in comparison withnon-disabled colleagues. The legal obligationapplies to both physical and material barriersacing the worker, and to the way in whichcompany policies and procedures are carriedout. It is impossible to generalise about whatmay be a reasonable adjustment becauseevery situation will be dierent, whichever

o these two broad areas is concerned. But itis possible to outline the general points thatrepresentatives need to bear in mind.

The rst o these elements requires anemployer to adjust the physical workplaceitsel. This includes adaptations to equipment,and it will oten be a relatively straightorwardnegotiation to obtain new sotware or alarger computer screen, or to change thelayout o an oce or workshop, i this iswhat is needed to remove the disadvantage.Commonsense solutions will oten providethe answer. As the examples that are used to

illustrate the EHRCs guidance suggest, i asmall employer cannot aord to install a litto enable a worker with mobility diculties

to reach upper foors, it could be a reasonableadjustment to relocate the job to the groundfoor.

The second element has an even greaterpotential as it deals with employer proceduresthat may perhaps unintentionally disadvantage disabled workers, such asthe way sickness absence is dealt withand how redundancy decisions are made.

Unless the employer understands its dutyo reasonable adjustment when it comes tosuch procedures, it is possible that it will bein breach o the law: and it is incumbent onthe union to know this as well, so as best toprotect its disabled members.

The underpinning principle o disabilitydiscrimination law is the understanding that,unlike all the other strands o equality law,disability discrimination law does not work

on the basis o treating everyone the same.On the contrary, it relies on grasping theunderstanding that, because o the numerousbarriers aced by so many disabled people,the only way to achieve an equal outcomemay be to treat disabled people moreavourably.

It may be hard to persuade workplacerepresentatives, who have been brought upon the principle that trade unionism involves

treating all their members the same, tounderstand that (some) disabled membersmay require to be treated better than theircolleagues, i an equal outcome is to be

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secured. Thats why when training in equalitylaw is provided or workplace representatives,it is strongly recommended that the dierent

way in which the law treats disability is clearlyexplained.

It may be even harder to persuade theemployer especially as represented at linemanagement level, where key decisions aremade, and where there is less likelihoodo training having been provided on thissubject. There is plenty o good practiceadvice available to employers it should be

necessary only to draw this to their attention(see the resources at the back o this booklet).

This section will look in greater detail atpractical workplace solutions under theollowing headings:

l Recruitment procedures

l Perormance-related pay and bonuses

l Sickness absence and disability

l Redundancy and redeployment

l Occupational health

l Health and saety

l The Access to Work scheme

l Mental health

l Neurodiversity

l Training

Recruitment proceduresUnions can help make a positive dierenceto the continuing exclusion o disabledpeople rom employment in a ar greaterproportion than non-disabled people byurging employers to review their policies orprocedures on recruitment.

This is particularly vital or public sector

employers, where the disability equality dutyintroduced in 2006 has been carried orwardin the single equality duty in the Equality Act2010 (see previous section). But even withoutthis explicit duty, all employers are legallyobliged not to discriminate in recruitment.

A new provision in the Equality Actintroduces, or the rst time, a ban onemployers asking questions about healthor disability (except in the circumstancesdescribed on pages14-15). For the rsttime, employers are obliged to decide onappointments on the basis o selecting thebest person or the job without knowing

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PART THREE

the Two Ticks scheme. The scheme requiresthat employers granted use o the symbol

promise to interview all disabled applicantsmeeting the minimum requirement o the

job, make the necessary adjustments, andsupport the disabled person in the job onceappointed.

The Department o Work and Pensions (DWP)carries out a periodical review o employersusing the Two Ticks symbol to conrm thattheir compliance is continuing. Unions mightthereore encourage employers to join the

scheme: it puts the organisation in a goodlight as well as broadening the catchment opeople applying or any o its vacancies.

The business case

Many employers do care about their image,because a poor image is bad or business.Joining and operating the Two Ticks schemeis an obvious way to acquire the kudos o

being seen to be positive about employingdisabled people.

The other reason or employing disabledpeople relates more directly to the bottomline. Governments have spent years tryingto convince business that there are goodbusiness reasons or recruiting disabledpeople, or retaining people who becomedisabled while at work. The argumentsstressed by organisations such as the

Employers Forum on Disability are:

l Disabled people are not less productiveor reliable than non-disabled people.

l Disabled people oten stay longer withan employer (are more loyal) and contrary to popular misconceptions have less time o.

l Disabled people and their amilies

constitute a signicant potential marketand employing them may help targetthis potential audience.

whether the applicant may have animpairment, and the consequence in the long

term might be a substantial improvement inthe access o disabled people to work.

Employers must change their policies andpractices so that they do not ask about healthor disability except in the circumstancespermitted in general, that means ater theyhave decided on making a job oer. It maybe necessary to remind them that they shouldbase their questions only on the ability othe candidate to do the job (a decision that

involves making reasonable adjustments). Ithey allow themselves to be infuenced bypreconceptions or prejudices about whatpeople with particular impairments cannotdo, they may well break the law.

Audits and positive action

Employers should be pressed to considerdoing an audit o their workorce to identiy

the proportion o workers identiyingas disabled or more inormation onmonitoring, see part our. It may appear thatdisabled people are very ew and i peoplewho are disabled are reusing to identiyas disabled on the survey then this is alsoevidence that there is a problem. Public sectorbodies have a legal obligation to encourageemployment o disabled people. Private sectoremployers might need to be convinced o thebusiness case or employing disabled people

(see below). The law allows positive actionwhen disabled people (and the same appliesto other groups covered by the Equality Act)are under-represented or are disadvantagedor have dierent needs. Remember that itis not discrimination i a disabled person istreated more avourablythan a non-disabledperson i this is required to remove a barrierarising rom the disability.

Two TicksMany employers have been using targetedrecruitment or many years, through joining


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GOOD PRACTICE

scenario as an example o where a reasonableadjustment is required to the scheme to

prevent discrimination against a disabledperson through paying them less or a reasonconnected with their disability.

It may be necessary to investigate whetheran adjustment could be made (or example,to equipment) that would remedy theproductivity gap, or ailing that, the disabledperson continues to be paid the same averagepay as their colleagues where there is a clearlink between the drop in productivity and the

workers impairment.

Once again, the principle to remember isthat in order to compensate or the manybarriers that some disabled workers ace, itis sometimes necessary to treat the disabledworker more avourably.

l Having an eective diversity policy isgood or sta morale as well as or the

reputation o the organisation.

Unions will judge whether such argumentswill carry weight with their employer.Evidence rom some large companies thathave won awards or their disability policiessuggests that the positive eects are not eltequally across the organisation and that therecontinue to be obstacles to turning policy intopractice urther down the management chain or that discriminatory practices continue

through dierent channels because, althoughthe policy has changed, the culture has not.

Perormance-related pay and bonusesWhere pay is related to productivity andwhere bonuses are paid on the same basis,a disabled person with an impairment thatrequires them to take time o work, or towork more slowly than their non-disabledcolleagues, is going to lose out.

Unions need to know that i this happens,the employer may in act be breachingequality law by ailing to make a reasonableadjustment. The EHRC guidance uses this

In summary, all employers may needto be inormed o the outlawing oquestions on health and disability andthe need to revise recruitment policies.

Employers subject to the public sectorduty have a legal obligation anyway

to ensure not only that they are notdiscriminating against disabled people,but also that they are looking positivelyto ensure that disabled people areproportionately represented at all levelso the workorce.

Private sector employers can beencouraged to grasp the benets oemploying disabled people, or reminded

o the cost o breaking the law.

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PART THREE

ill-health due to disability, but required onlythat the dismissal was justied. Similarly

or the question o sick pay; the currentauthority is the Court o Appeal ruling inthe case o OHanlon v. The Commissionersor HM Revenue and Customs that therewas no entitlement to continued sick payor disability-related absences ater theexhaustion o the time laid down in theemployers procedures on sickness.

As the case law is unhelpul, it is stronglyrecommended that on this aspect o disability

discrimination, unions do everything possibleto avoid using the ultimate resort o takingthe matter to an employment tribunal.

This reduces the options to the ollowing:

l Arguing or the creation o a separatecategory o disability-related absence.The reasonable adjustment case can bedeployed with this one, and, with publicsector employers, their equality duty.

l Having a good disability leave policy, alsoas a reasonable adjustment.

The EHRC Code o Practice can be cited insupport o both arguments, although the actthat it does not have legal orce weakens thecase where the employer sticks to the caselaw or is governed by their own prejudices.

What the EHRC Guidance saysThe guidance gives as an example o areasonable adjustment:

Allowing the person to be absentduring working or training hours orrehabilitation, assessment or treatment.

and

Allowing a disabled worker to take aperiod o disability leave. For example:a worker who has cancer needs toundergo treatment and rehabilitation.Their employer allows a period odisability leave and permits them to

Sickness absence and disabilityAt a time when employers are using

sickness absence as a actor in determiningredundancies, the continued misuse andconusion o sickness absence and disability-related absence represents a big challenge tounions.

The starting point or unions must be that it isa reasonable adjustment or the employer (a)to count disability-related absence separatelyrom sickness absence, and (b) to adopt adisability leave policy.

Many sickness absence policies containtrigger points or losing entitlement to pay,or holding capability meetings, and ordismissal or pressure to take ill-health or earlyretirement.

As a result, every year many disabled peoplewhose impairment(s) requires them to taketime o work, but who are still capable oreturning to work (perhaps with adjustments),nd themselves dismissed through sicknessabsence procedures that make no allowanceor disability-related absence.

At a time when government has beenstriving to reduce the numbers o people ondisability benets, it is particularly perverseto be adding to the number by a ailure byemployers to grasp that sickness and disabilityare not the same thing.

However, although case law under theDisability Discrimination Act has otenbeen avourable to the worker in termso extending the denition o disability oro pushing the boundary o reasonableadjustments, one area where it has provedinstead to be restrictive is in the extensiono this approach to sickness absence. Thisollows a case in 2006 (Royal LiverpoolChildrens NHS Trust v. Dunsby) where the EAT

overturned previously avourable employmenttribunal cases by stating that the employerdid not have an absolute obligation not tosack someone whose absence was down to


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GOOD PRACTICE

Counting disability absence separately

In order to be able to argue that their

members absence is down to disabilityrather than sickness, the representativewill need to understand the dierence andto be able to explain it to management.Sometimes the continuing stigma attachedto the word disabled may prevent a workeraccepting this. I the employer already has apolicy commitment to equality and to beingdisability-riendly, this will be much easier toachieve. I they have not, the representative

may have to argue the legal obligation tomake reasonable adjustments, citing theEHRC guidance in support.

Key steps

To secure agreement to count disability-related absence separately, there will needto be an agreed denition o disability. It is

return to their job at the end o theperiod.

This is as ar as the guidance goes. It may besucient to convince some employers to dothe right thing.

A pre-condition: being open about theimpairment

Both options also entail a number o practicaldiculties, primary among them being thatthe disabled worker eels suciently secure

to be open about their impairment not aneasy challenge to overcome where it mightconcern mental health, or example. Unlessthey are willing to have both employer andunion aware o the impairment, however, itwill not be possible to identiy a solution.



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PART THREE

taken as sick leave is redened as disability-related absence.

Disability Leave (also known asRehabilitation Leave)

The concept o Disability Leave (DL) has beenaround a long time, but very ew employershave adopted DL policies, although this hasbegun to change in the public sector.

Although DL is recognised as an example oa reasonable adjustment in the Equality Actnon-statutory guidance, this can be usedonly to argue the case or it to apply to an

individual. The employers agreement toestablish a new policy can be secured only bynegotiation; there is no legal obligation. Butit makes much good sense to have such apolicy, and reduces the risk o legal challengesor disability discrimination through a ailureto make a reasonable adjustment.

In negotiating a policy, there are some keyprinciples to agree, i the resulting policy is tobe eective.

As in the argument or treating disability-related absence separately rom sicknessabsence, an employer is likely to insist on a

very unlikely that many employers would bewilling to adopt anything other than the legal

denition set out in the Equality Act.

The next question, thereore, is whether theworker is disabled. Where there is any doubt,an employer may rely on advice rom theiroccupational health (OH) adviser, includingadvice on the likely length o the absence.Having this advice also provides the employerwith some protection against uture legalproceedings (but not entirely responsibilityor the nal decision still belongs with the

employer, not the medical adviser). It isthereore important that the representativeensures that they work with the employer inmaking the reerral, including having an inputinto what questions are put to OH. I thereis doubt whether OH is neutral, or whetherit has the expertise to report on particularimpairments (which may particularly be thecase with mental health conditions), it maybe necessary to get an independent medical

report. Given the cost, it will be better topersuade the employer to commission this,on the grounds that having such a reportwill provide them with a reliable basis ordecision-making that is less likely to lead to atribunal challenge or disability discrimination.

It is unlikely that an employer will agreeto allow a separate counting o disability-related absence or an indenite period.An agreement that stipulates a period o

time, but with discretion to extend throughnegotiation on a case-by-case basis, may bethe saest option. Where the duration o thelikely absence is not known, agreeing to areview beore a period o paid absence comesto an end may be the best option. In thesesituations, getting reliable medical evidencebecomes o crucial importance.

In some cases, the link between the absenceand the impairment may emerge ater thestart o the period o absence. It is importantthat the policy allows or retrospection, sothat i the link is established, absence already

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GOOD PRACTICE

assessments, waiting or an employer to carryout adjustments with (importantly) some

provision or fexibility. The PCS civil serviceagreements cover alternative therapies (whererecommended by a medical proessional),counselling and time to adjust to newmedication. It might also cover a phasedreturn to work or part-time working duringthe return, in order to ensure continuedentitlement to ull pay.

Finally, unions will want to ensure thatperiods o DL are counted as continuous

service.

Redundancy and redeploymentWhen employers are making workersredundant, disabled people have historicallycome o worse, by being the rst to beselected or redundancy, or got rid o throughother means such as ill-health retirement.

Very oten, employers will have been ableto claim that they have acted reasonablybecause they applied the same criteria inmaking their decision equally to everyone.

To make a disabled person redundant withouthaving considered reasonable adjustments including to the redundancy criteria andprocedures themselves may be unlawul.Unions will need to ensure both that theemployers procedures are non-discriminatory

and that the actual practice that ollows alsodoes not discriminate on grounds o disability.

O course, other laws apply to redundancysituations as well and an employer mustcomply with them all.

Selection pool

I the employer is not closing down an entireoperation, but is reducing the total number

o people working in it, it would be easy todiscriminate directly or indirectly on groundso disability (or, or example, sex) i thepool were to be restricted only to people

denition o who is covered, and most likelyto agree to the Equality Act denition o

disability. This will raise questions in particularabout people with fuctuating conditions, orthose where a condition has not lasted 12months. Representatives will have to becomeamiliar with the case law interpretation othese questions (see pages 8-9).

The other question about the coverage o thepolicy is what kind o absence it covers: orexample, does it include sickness that maybe directly related to the impairment, but is

not treatment (etc.) o the impairment itsel?Civil Service DL agreements do not. Unionswill want a DL agreement to cover as manyworkers as possible, so the wording here willbe crucial.

Employers will normally insist on a timelimit or the total period o DL. Civil Serviceagreements have a limit o three months inany 12-month period. Unions will argue or

the maximum period that can be won.Another approach is to try to win agreementto a fexible approach, related to thecircumstances o the individual case. Asevery individual case will be dierent, thisapproach makes sense i the intention is toencourage individuals to return to work atthe completion o the period o DL, duringwhich time they can have completed therecuperation, rehabilitation or therapy that

led to the request or the DL in the rst place.This approach is contained in the policynegotiated by the NUT and UNISON withSomerset County Council (see Appendix).

Retrospective applications should be allowed.In some cases, absence may have begunbeore it is identied as disability related, andin such cases it should be established that theabsence can be redened as DL.

It will also be important to identiy aswide as possible a range o possibilities ortaking the DL: appointments, treatment,therapy, recuperation, training or retraining,


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PART THREE

recommends that, in order to avoid illegaldiscrimination, employers should:

l use not just one but a variety o separatecriteria in a matrix o selection criteria

l consult the trade union

l make sure that whoever scores peopleagainst the criteria has been trained onavoiding unlawul discrimination.

The EHRC guidance oers specic advice onthree particular criteria that might be used.They are included here so that representativescan draw their existence to the attention oemployers:

Length of service

A criterion based on length o service risksdiscriminating on grounds o age (i.e. in thiscase, young people), sex (women, who are

assumed (or example) to be less productive,i their lower productivity was the result

o an impairment, or who work part-timealso or reasons o disability. Applying such

judgements might lead to the pool beingcomprised only o such people, and may wellbe discriminatory. The best way to avoid therisk o discrimination is or the employer toplace everyone in the unit in the pool.

The union will naturally seek to minimise thenumber o jobs to be lost but must be awareo not themselves prejudicing the position o

disabled members by agreeing to selectionpools where the criteria or deciding who is,and who is not, in the pool are potentially oractually discriminatory.

Matrix factors and scores

The EHRC guidance or employers ondismissal, redundancy and retirement

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GOOD PRACTICE

There are two important points to note:

1. It is necessary or the employer to knowthat the worker is disabled or thisargument to be applied. Thereore it isvital that the worker is open about theimpairment.

2. I an employee in a redundancy pool is adisabled person, and the employer doesknow this, the employer is obliged tomake reasonable adjustments to removebarriers that a non-disabled person

would not ace. The argument wouldthen become whether this adjustmentwas reasonable.

Reasonable adjustments in a redundancysituation could include redeployment o adisabled worker into another position notat threat o redundancy. The case law aboutthe scope o reasonable adjustments (the

Archibaldcase, see page 13) conrms thatit is reasonable or the employer to move a

disabled worker to a vacant position, even iit is at a higher grade and requires retrainingo the worker. It should be noted, however,that this case related to a large employer, andwhat was reasonable or it might well not beor a much smaller employer.

Nonetheless, the option o redeployment intoanother position has been well establishedin case law, and should be pressed by union

representatives where there is any possibilityo preserving the employment o a disabledworker.

more likely to have had interrupted careers)and disability (or the same reasons).

The TUC would recommend checkingwhether a disabled worker might beaected by two o the three characteristics(age, gender, disability), thus entailing the

possibility o dual discrimination (see page10 combined discrimination), now that thislegal concept has been introduced by theEquality Act. In this case, the union shouldargue that adjustments should be made tothe criteria to discount any time dierences

attributable to disability, as a reasonableadjustment.

Absence record and working hours

These actors risk discriminating againstparticular groups o people:

l disabled people taking time o becauseo their impairment, which mightrepresent a case o discrimination arisingrom disability

l those taking time o to care or adisabled relative, which might representa case o discrimination by association

l a disabled woman whose time o orpregnancy was taken into account mightbe able to claim direct discrimination.

The EHRC guidance gives an example:

An employer... selects employees romthe pool on the basis o absence overthe past two years. The disabled personhas taken a lot o time o in relation totheir disability (...something connectedto their disability). I the employercannot objectively justiy this decision,it is likely to be discrimination arisingrom disability. A better approach wouldbe to exclude disability-related absence

rom the absence which is used to scoreemployees against that criterion...

Case study

Unite reps negotiated with an employerin the manuacturing sector in theSouth West to redeploy disabledmembers within the workplaceas a reasonable adjustment to

avoid redundancy. Without theseadjustments, the disabled workers werethreatened with redundancy.


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PART THREE

the tness o the worker or continuedemployment, or that they may (through

ignorance) ail to recognise that reasonableadjustments could be put in place to remedythe problem.

Existing case law conrms that nal decisionsrest with the employer, but also support theview that where the employer has relied onan OH report to justiy their action, it will bevery hard to challenge it successully in anemployment tribunal. It is crucial, thereore,that where the employer has decided to

seek medical evidence to decide what todo with a worker whose perormance hasdeteriorated as a result o a health conditionor impairment, the union should seek toensure two key points:

1. That the medical report is preparedby a proessional qualied to dealwith the particular conditions inquestion, including where appropriatecommissioning an external expert.

2. That the worker has been involved in thediscussion o what they can or cannotdo at work. Case law conrms that suchconsultation is required, and this shouldbe pointed out to the employer.

Health and saety

In no case should it be possible or anemployer to argue that their obligationsunder the Health and Saety at Work Act(HSW) outweigh their obligations not to

Performance criteria

Simply to make a disabled person redundant

because o poor perormance, without havingmade adjustments to remedy the disabledpersons disadvantage that had caused thelower perormance, was ound unlawul bythe EAT in the case o Wheeler v. SungardSystems Group Ltd(2004), where a salesrepresentative had perormed poorly as aresult o medication taken or depression.

Summary

In summary, the union needs to ensurethat the criteria proposed by the employeror selecting people or redundancy takeinto account all appropriate reasonableadjustments, many o which will meanmodiying the criteria being used to select orredundancy so that a disabled person doesnot ace a substantial disadvantage in theprocess.

l I using absence, then absenceconnected to disability should bediscounted.

l I using length o service, care shouldbe taken to avoid discrimination arisingrom an individual disabled personsdisability-related employment history.

l I using perormance, it is essential thatany reasonable adjustments to the job

have been put in place rst, includingrecognition (and discounting) oproductivity or perormance levels belowthose o non-disabled colleagues thatderive rom the disability.

Occupational healthIn many circumstances that aect thelives o disabled workers, employersrely on the recommendations o an in-

house occupational health service. Unionshave reported situations where theserecommendations t too easily with theemployers pre-judged conclusions about

Given the weight that medical evidencecan play in justiying an employersdecision to dismiss a sick or disabledworker, it is essential to ensure (1) thatthe medical report is rom a properlyqualied expert; and (2) that thedisabled worker is involved in discussionabout possible reasonable adjustmentsto enable them to continue in or returnto work.


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GOOD PRACTICE

Any kind o blanket ban on all people witha particular impairment is likely to constitute

direct disability discrimination, which isincapable o being justied. An examplewould be a ban on anyone with diabetesrom a driving job. Such a policy is likely tobe unlawul: representatives aced with thissituation should check the detailed adviceprovided by Diabetes UK at:

www.diabetes.org.uk

The approach taken by union representatives

should be that disability and health and saetywork together, not in opposition, to createa saer and healthier workplace or all. Inmany cases, reasonable adjustments can bemade that will eliminate or, as the law itselrequires, minimise the risk.

l For workers with mobility impairments,a simple buddy system where someoneelse agrees to assist the disabled personto evacuate the building may overcome

any problem.

l Flashing lights alongside sound alarmswould serve to alert workers withhearing impairments.

l Where hazardous substances are in use,it may be necessary to reconsider thelimit level or the concentration in the airo a hazardous substance (as is alreadyrequired by regulations).

An issue oten raised is that o workers litingpeople, or example disabled people in a carehome. Withdrawal o the service, which hashappened, need not be the outcome, andthere is guidance rom the H&S Executive(HSG 225, Handling Home Care) to resolveproblems.

The Access to Work scheme (ATW)

Access to Work (administered by the DWP)oers unding or adjustments to enabledisabled people to start a job, and to remainin work.

discriminate against, or make reasonableadjustments or, a disabled worker.

Individuals with particular impairments maybe the subject o a risk assessment that isspecic to them although the law says thatthe request to undertake a risk assessment

must itsel be reasonable (that is, consistentwith the tasks required o the job, and notresulting rom irrelevant considerationsbased on preconceptions o the individualsimpairment).

Failure to carry out an appropriate riskassessment while deciding on actions thattreat a disabled worker less avourablyrisks a nding o discrimination withoutthe justication that might be provided

i the employer argues that health andsaety concerns were the reason or thediscrimination.

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Current details o eligibility, who to contact,the application process and what the undwill pay or are online at:

www.direct-gov.uk/en/disabledpeople/

employmentsupport/

Changes are made to the scheme rom timeto time; this section explains the position atJanuary 2011.

ATW oers help or disabled people who are:

l in a paid job

l unemployed and about to start work

l unemployed and about to start a worktrial

l sel-employed.

ATW will currently pay 100 per cent o thecost o support or those unemployed andabout to start work or in a job within the rstsix weeks o employment, as well as specialequipment i needed (but see more below)and adaptations to the premises. Employersare asked to contribute according to a slidingscale determined by their size or example,those employing ewer than 10 people willcontribute nothing, but those employing 250or more people will pay the rst 1,000 and20 per cent o the costs up to 10,000. Thelevel o support is reviewed by ATW betweenone and three years ater the grant is made.

The largest number o awards granted in2009/10 went on special aids and equipment,costs o support workers, travel to work costs,and the costs o the ATW assessment itsel.



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GOOD PRACTICE

From October 2010, the DWP reducedunding previously provided or a large

number o pieces o equipment, arguingthat it is the responsibility o employers toprovide reasonable adjustments under theEquality Act.

I a representative is concerned that anemployer will resist the making o anadjustment on grounds o cost, awarenesso ATW may provide a solution and shouldbe drawn to the employers attention. It isimportant to understand, however, that no

large employer is likely to be able to arguecost as a reason not to comply with their legalobligation to consider an adjustment unlessthe adjustment concerned is extraordinarilycostly and most ATW grants are modest.

Mental healthAn enormous number o workers who haveor have had a mental health problem are not

in work, and are denied the opportunity toreturn to work, or two primary reasons:

l the absence o a joined-up approach todealing with mental ill health as both anemployment and a health issue

l the stigma associated with mental healththat ensures that around 80 per cent opeople aected are not in work.

A new cross-departmental approach toensure that health and employment serviceswork together was introduced by governmentearly in 2010. Tackling the second barrier isa much stier challenge, and unions need toplay their part.

The TUC has produced detailed guidance,Representing and supporting members withmental health problems at work, which canbe downloaded rom the disability pages

o the TUC website, www.tuc.org.uk. Theadvice was written in collaboration with theSainsbury Centre or Mental Health, MindulEmployer, and was endorsed by the EHRC.

These are some o the key messages thatunion representatives need to remember

when supporting workers with mentalhealth issues:

l Mental health issues are one o the mostcommon impairments recognised bythe law: statistics suggest that aroundone in ve women and one in ten menwill ace depression at some pointin their lives; research has identiedthat the sectors with highest rates omental-health-related illness were public

administration, education and health.

l For many obvious reasons, workers whoare depressed (or have another mentalhealth problem) may not see theircondition as a disability, and may be veryreluctant to discuss it with someone else,in particular their employer. But unlessthe employer is aware o the situation,they cannot be asked to provide the kindo reasonable adjustment needed to dealwith it.

l Union representatives themselvesmay eel unable to deal eectivelywith members in this situation. It isrecommended that wherever possible,(some) reps in a workplace or ocers inan area undertake training on mentalhealth so as to eel condent to adviseand represent in these cases.

l A range o the reasonable adjustmentslisted in the EHRC guidance or theEquality Act may be the right solutionto making it possible or a worker witha mental health issue to stay in their

job: adjusting working hours to allowor the eects o medication, allowingmore requent breaks, providing aworkplace buddy, changing workduties or redeployment (or example,

away rom aspects o the job that arecausing stress), and altering supervisionor appraisal methods.


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PART THREE

l The adjustments to sickness absenceprocedures discussed above and theestablishment o Disability Leaveprocedures are likely to be particularly

helpul in enabling someone with amental health condition to undergotreatment and to make a return towork without their absence triggeringdismissal through sickness absencepolicies.

l Once someone who has been o workor reasons o mental ill health returns towork, it may be essential to manage thatreturn to work very careully to prevent arecurrence.

NeurodiversityWorkers with a wide range o conditionsgrouped under the title o neurodiversity (ND) such as dyslexia, dyspraxia and attentiondecit hyperactivity disorder (ADHD) ace anumber o barriers in most workplaces.

The starting point or representatives is toknow that ND people are covered by thedisability discrimination provisions o theEquality Act, and that employers have thesame duty o reasonable adjustment or NDworkers as or any other disabled person.

The starting point or employers needs to berecognition that neurodiverse people bring adistinct range o skills to their work that canbe o positive benet to an organisation

or example, lateral and innovative thinkingand creativity.

Some o the relevant adjustments will be thesame as or someone with a mental healthissue, others may be dierent.

l The priority given in many workingenvironments to literacy, numeracy andstrict time management can be a seriousbarrier or many neurodiverse people,and call or adjustments such as dyslexiaskills training, assistive technology suchas dictation sotware, more time orwritten tests, and swapping o duties.

l It may be necessary to carry out anassessment to determine whether theworker is ND. Assessments, however,will have to be paid or by the employer,but might be necessary to conrm that a

duty o reasonable adjustment applies.l Training or managers in dealing with

widespread conditions such as dyslexiawill remove much o the stress or

JohnB

irdsall/PA

Talbot v. WAGN Railways

The EAT ruled that it was a reasonableadjustment to redeploy a railwayworker into a non-public-acing positionollowing a suicide that had led him todevelop post-traumatic stress disorder.


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GOOD PRACTICE

the benets o ensuring that at least key stareceive relevant training.

Where the argument has been won,employers can be directed to bodies such asthe Employers Forum on Disability (EFD) orurther advice and inormation. For trainers,there are many choices: unions shouldrecommend that preerence be given tothose oering disability equalityrather thandisability awareness training. The ormerwill oten be provided by disabled peoplethemselves, rom a social model perspective.

The benet will be that the participants comeaway with a better grasp o the social contexto disability discrimination, which will veryoten be lacking rom courses in disabilityawareness.

For disability champions, equality repsand union representatives

To be able to assist an employer to reach

the right decisions, union negotiatorsmust themselves be trained in disabilitydiscrimination law and good practice.

The training o disability champions, begun byAmicus, has been open to unions since 2004.This ully accredited scheme is delivered romapproved TUC training centres and providesparticipants with a thorough understandingo the issues highlighted in this booklet,within a social model o disability. It oers a

practical plan designed to assist workplacerepresentatives to negotiate reasonableadjustments, carry out access audits, andgenerally encourage understanding odisability issues. Further details can be oundon the TUC unionlearn website.

Thousands o trade unionists have benetedrom training as equality representatives. Eventhough these reps have not gained statutoryrights to acility time, where they are present

in a workplace, or at a local or regional tradeunion oce, they oer expertise in tacklingequality issues and should be consulted onany disability-related issues.

individuals, who may be disciplinedor weaknesses in their work that are

caused by (or example) their dyslexia.There is case law conrming that aailure to make adjustments appropriateto a ND person alls oul o disabilitydiscrimination law.

l As relevant, general practitioner (GP),psychiatrist and/or psychologist supportand the provision o treatment suchas cognitive behavioural therapy orcoaching can reduce periods o time

o work, and the use o disabilityleave to cover such would be entirelyappropriate.

l Specic resources and supportorganisations o ND people are listedin the appendix.

Training

For managersTime and again, unions have reported that,even in organisations with excellent policyon disability, there is insucient (or no)understanding o the employers obligations,and an unthinking sharing o popularprejudices, at the level o the line managersresponsible or day-to-day operations.

In organisations liable to the public sector

equality duty it should be easier to press theargument or the importance o managersbeing trained in equality law, and in particularto appreciate that the law requires employersto treat disabled people not the same as, butmore avourably than, non-disabled people,i that is necessary to overcome the barriersthey ace.

I the business case does not convinceemployers in the private sector (see

pages 20-21), then the risk o expensiveemployment tribunal proceedings combinedwith a negative impact on the image o thecompany may lead the employer to recognise


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l Do make sure monitoring is anonymousand condential. Access to dataneeds to be closely controlled, and no

individual should be identiable rom theresponses. I the data is not anonymous,then the protections aorded by theData Protection Act must be respected.

The TUC strongly recommends thatmonitoring starts with a social modelapproach. The purpose o the exerciseshould be, at least, to identiy whether theproportion o people identiying as disabled

within the workplace is representative osociety as a whole.

Identiying what barriers people continue toace will make a survey even more useul.However, it will be dicult to merge thetwo into a single survey, and the TUCrecommends that a separate mechanism isput in place asking people to report barriersthey ace, and in a dierent way so as toencourage the maximum response rate. For

example, it may be very dicult to maintainanonymity in such a survey.

Even with the best-planned monitoringexercise, many people are likely not torespond to a question about disability. Icondence grows that the data are beingused to change the organisation or thebetter, then rates o return will increase witheach repeat exercise.

Many people who count as disabled usingthe Equality Act denition do not denethemselves as disabled. And some peoplewho are disabled are not covered by theAct, because o the denition. As a result,

How can an organisation know whetherits equality policies are working withoutreviewing and monitoring them? Under

the public sector duty contained in theEquality Act, all public bodies are obligedto place in the public domain data that willenable citizens to hold them to account orthe success (or otherwise) o their equalitypolicies. Private and voluntary sector bodiesdo not have this duty, but good practicemeans they should ollow the same path.

It will be very hard to produce such data

unless the dierent equality groups aremonitored. Many organisations have carriedout disability monitoring or a number oyears, and have encountered problems inobtaining reliable inormation rom theexercises. There are some basic ground rulesthat need to be observed i a monitoringexercise is to be authoritative.

l Dont ask people about theirimpairments not only is this

inormation useless, it almost guaranteesthat people with hidden impairmentswont respond, especially (but not only)i they relate to mental health.

l Do have a plan. What will be donewith the collected data? How will theorganisation modiy its operations inlight o the ndings?

l Do make sure that every member o

sta receives a brieng explaining whatthe equality plans are, and that theyhave the chance to ask questions.

PART FOURMONITORING DISABILITY


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Using the resultsI monitoring suggests a disproportionatelylow number o disabled workers, then theorganisation is permitted by law to targetrecruitment eorts at this group. I themonitoring shows that disabled people guredisproportionately among lower grades, the

organisation should investigate what barriersthere are to career progression.

I the survey does not allow or that kindo analysis, t

Documents

Disability and Work (Discapacidad y trabajo)