1. Busting Common Myths About Employing People With Disabilities Presented by Peggy Barnard Employment Solicitor at Pictons Solicitors LLP

2. MYTH 1 The Definition of “Disability”

3. Legal Definition “....a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to- day activities.” Section 6(1) EqA 2010

4. Legal Definition (cont) “....a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.” No need for medical evidence A person has a “physical impairment” if they have “something wrong with them physically” “Mental impairment” is intended to cover “ a wide range of impairments relating to mental functioning” – EHRC Code

5. Legal Definition (cont) “....a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.” Substantial = “more than minor or trivial” Adverse = normal day – to –day meaning Long Term - has lasted at least 12 months; - is likely to last 12 months; - is likely to last the rest of the life of the person.

6. Legal Definition (cont) “....a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.” EqA 2010 Guidance states “...day to day activities are things people do on a regular basis, including: ShoppingReadingWritingTalking Watching TVDressingWashingWalking Eating ChoresTravellingSocialising

7. Deemed DisabilityPotential DisabilityExcluded Blindness / Sight impairment Sensory Impairments Alcohol / drug addiction Severe disfigurement Motor Neurone Disease Tendency to set fires CancerEpilepsyTendency to steal HIVArthritisTendency to abuse Multiple SclerosisDementiaExhibitionism Heart DiseaseVoyeurism AsthmaTattoos / piercings AutismHayfever Anxiety Depression Stress Dyslexia

8. Disability? Ben, a 50 year old man has been an alcoholic for 12 years. He regularly turns up for work under the influence of alcohol. Jan, a 55 year old woman, has advanced stomach cancer. She has been absent from work for 3 months whilst she has chemotherapy. Mark has been diagnosed with severe depression following the death of his father 2 months ago. Denise is being teased at work as a result of scars to her face following botched cosmetic surgery

9. Practical Tips If in doubt, assume the employee has a disability Don’t be afraid to ask reasonable questions (more info later) Written Policies & Procedures - Equality & Diversity - Disability

10. MYTH 2 High risk of being sued for disability discrimination and increased insurance premiums

11. Disability Discrimination- EqA 2010 Discrimination law covers all areas of employment including:- Job adverts Recruitment process Terms and conditions of work Conduct during employment Conduct during social events at work Dismissal £££ - Compensation for discrimination is uncapped

12. Disability Discrimination Types of disability discrimination under the EqA 2010 :- 1) Direct discrimination 2) Discrimination arising from disability 3) Indirect discrimination 4) Failing to make “reasonable adjustments” 5) Harassment 6) Victimisation 7) Asking inappropriate pre-employment health questions

13. Direct Discrimination Treating a job applicant or employee less favourably than others because of disability (section 13(1), EqA 2010) No defence “Positive discrimination” allowed

14. Treating a job applicant or an employee unfavourably because of something arising in consequence of disability. (section 15(1), EqA 2010) Defence – objective justification Proportionate means of achieving a legitimate aim Discrimination Arising from Disability

15. A applies to B a Provision, Criterion or Practice (PCP). B has a disability. A also applies that PCP to people without a disability. The PCP puts or would put disabled people at a particular disadvantage compared to others. (section 19, EqA 2010) Defence – objective justification Proportionate means of achieving a legitimate aim Indirect Discrimination

16. Where a disabled employee is placed at a substantial disadvantage in the workplace as a result of a disability, the employer is under a legal duty to make “reasonable adjustments” to assist the employee. A failure to comply with this duty is a form of discrimination. (sections 20 & 21,EqA 2010) Knowledge of disability is required (or constructive knowledge) Failure to Make Reasonable Adjustments

17. Harassment A harasses B if A engages in unwanted conduct related to their disability which has the purpose or effect of either: Violating B's dignity, or Creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (section 26, EqA 2010) Individual’s can be personally liable

18. Victimisation Victimisation occurs where A subjects B to a detriment because either: B has done a “protected act”. A believes that B has done, or may do, a “protected act”. “Protected Acts” include bringing proceedings under the EqA 2010, giving evidence at a hearing and alleging that a person has contravened the EqA 2010 ie. by raising an internal grievance. (section 27(2), EqA 2010)

19. Which form(s) of discrimination? Jan is dismissed from her job as a result of having 3 months off work to have chemotherapy Tony is dyslexic. He is given a written warning for making too many spelling mistakes in his work Denise is being teased at work as a result of disfigurement to her face following botched cosmetic surgery. Her colleagues are saying that she “looks like the elephant man” Roger did not get a pay rise because he raised a grievance as a result of his employer refusing to allow him to leave early to attend medical appointments

20. Discrimination in Recruitment

21. Discriminatory Job Adverts RECEPTIONIST This front of house applicant must have these key skills: Professional, happy & positive attitude Organised, friendly & energetic High levels of customer care Smart & fashion conscious Computer literate – able to use “BookFresh” software Great communicator, face to face & telephone If you think you have these skills and more, please contact xxxxxxx on Tel: xxxxxxxx for details

22. Practical Tips Written Policies & Procedures - Equality & Diversity - Grievance & Disciplinary Training Take action against discrimination THINK! If in doubt, get advice

23. MYTH 3 An employer cannot ask questions about a potential candidate’s disability prior to employment

24. s.60 EqA 2010 provides employers are prohibited from asking potential recruits questions about health, except when:- Establishing if the applicant will be able to comply with a requirement to undergo an assessment (ie. an interview) and if any reasonable adjustments are required Establishing if the applicant will be able to carry out a function that is intrinsic to the work concerned Monitoring diversity Taking “positive action” If there is a requirement for the applicant to have a particular disability – to find out if they do Pre-employment Health Questions

25. Practical Tips Written Policies – Equality & Diversity Be consistent Ensure you can justify why you are asking the question If in doubt, get advice

26. MYTH 4 It will be too expensive to make the necessary adjustment s

27. Reasonable Adjustments Legal obligation is to make “reasonable” adjustments only What is reasonable will depend on a number of circumstances including the size and resources of the employer. Adjustment may relate to a PCP, a physical feature of the company’s premises, or the provision of an auxiliary aid. Statistics show that only 4% of reasonable adjustments made cost anything at all

28. Potential Adjustments... The ECHR Code gives the following examples:- Making adjustments to premises Providing information in accessible formats Allocating duties to others Redeployment Varying hours Office move Allowing absence for treatment Training / Mentoring Modifying Procedures / Policies Acquiring or modifying equipment

29. Practical Tips Written Policies & Procedures - Equal Opportunities - Disability - Grievance Speak to the employee Think outside the box Why, Why, Why…..? What else….? Access to Work Scheme Keep records If in doubt, get advice

30. MYTH 5 A disabled employee will take too much sick leave

31. Sickness Absence Capability = a potentially fair reason for dismissal Follow a fair capability / ill-health procedure Have you made all reasonable adjustments? Obtain medical evidence or Occupational Health report

32. Practical Tips Written Policies & Procedures - Capability / Ill-health Consider case on individual circumstances Keep records Consider medical reports carefully If in doubt, get advice

33. MYTH 6 Disabled employees will not be able to meet the expected performance standards of the role

34. Performance Capability = a potentially fair reason for dismissal Follow a fair capability / ill-health procedure Have you made all reasonable adjustments? Obtain medical evidence or Occupational Health report

35. Practical Tips Remember, a disabled employee is unlikely to apply for a role that they know they will be unable to fulfill! Have you asked the right questions in interview? Written Policies & Procedures - Capability / Performance Written contract of employment / clear job description Use probationary periods (albeit with caution!) Keep records If in doubt, get advice

36. Where to get support / advice..... ACAS - www.acas.org.ukwww.acas.org.uk Access to Work Scheme - 0345 268 8489 The Disability Resources Centre Government website – www.gov.ukwww.gov.uk Pictons Solicitors 1000’s of other local / national charities.....

37. “Employees who believe that management are concerned about them as a whole person – not just an employee – are more productive, more satisfied, and more fulfilled. Satisfied employees mean satisfied customers, which leads to profitability”

38. Peggy Barnard Employment Solicitor Pictons Solicitors LLP 28 Dunstable Road, Luton, Beds, LU1 1DY T:01582 878506 E: peggy.barnard@pictons.co.uk /pistons-solicitors-llp /Pictons @ pictons