Disability Discrimination and Recruitment Kareena Prescott and Sarah Weaver DWF Solicitors

Introduction It is unlawful to discriminate against employees on the grounds of their disability Contract of service or of apprenticeship or a contract to personally execute any work or labour Unlimited awards of compensation

Definition of Disability A person must have: –A physical; or –A mental impairment; that has –A substantial; and –Long term adverse effect; on –Their ability to carry out normal day to day activities

Types of Discrimination Direct Discrimination Victimisation Harassment Failure to make reasonable adjustments Disability related discrimination

Direct Discrimination A person directly discriminating against a disabled person if, “on the grounds of the disabled person’s disability he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as or not materially different from those of the disabled person”.

Disability Related Discrimination A person discriminates against a disabled person if, “for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply and he can show that the treatment is justified”.

Failure to Make Reasonable Adjustments “Where a provision, criterion or practice applied by or on behalf of an employer, or any physical feature of premises occupied by the employer [which] places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable in all the circumstances of the case for him to have to take in order to prevent the provision criterion or practice, or feature, having that effect”.

Potential Reasonable Adjustments Altering working hours Acquiring or modifying equipment Providing supervision or other support Etc

When Is It Reasonable to Make Adjustments Employers must look at – –Effectiveness and practicality of the adjustment –The financial and other costs of the adjustments and the extent of any disruption caused –The extent of the employer’s financial and other resources –Adjustments made for other disabled employees –The nature of the employer’s activities, and the size of its undertaking

Justification Defence is unlikely to be effective if the employer had not considered reasonable adjustments or shown not to be justified Material to the circumstances of the particular case and substantial

Knowledge of Disability Lack of knowledge is no defence, except possibly in relation to obligation to make reasonable adjustments. Employer responsible for employees’ or agent’s actions

Practical Consequences for Employers Job advertisements Application form Interview process Selection tests

Practical Consequences for Employers Medical examinations When an existing employee becomes disabled Establishing whether a person is disabled

An Illustrative Case Williams –v- J Walter Thompson Group Limited (2005)

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