Most business owners and managers know that it is not lawful to discriminate against people with a disability. So far so pretty straightforward, however how clear are you on what types of conditions count as a disability for the purposes of the Equality Act? When making a decision about an employee involving a medical condition, do you know how to tell whether you should treat the condition as being a disability?
It’s a tricky area which has been and continues to be, the subject of case law on a regular basis. So here are our five top tips for managers wanting to know what counts as a disability.
1. Does the worker have an impairment that is mental or physical?
This sounds obvious and easy to determine, and in some cases it is, but be careful not to assume, especially about mental conditions which are not always obvious at all.
2. How serious does it need to be?
For an impairment to be considered a disability for these purposes, it needs to affect the employee’s ability to carry out normal day-to-day activities on a substantial and long-term basis, “long-term” normally meaning for about 12 months or longer, or predicted to be about 12 months or longer.
The disability must impact on working activities, so if someone has a condition which impacts on them personally or on things they do outside work, but not on the tasks involved in their job, it would not normally require an employer to consider it a disability.
Sickness is not automatically a disability, even if someone has been off sick for a long time, however sickness may become a disability even if it is not early on.
Clearly the definition above allows for a lot of interpretation – what constitutes normal activities, how substantial is substantial, and how long is long-term. If in any doubt at all, do seek advice.
3. Are any conditions specifically included or excluded?
There are conditions which should automatically be considered a disability, even if they have not (yet) started having the substantial impact on normal life described in the definition above. These conditions are HIV, cancer, multiple sclerosis, physical disfigurement and certified visual impairment.
There are also a number of conditions which are expressly excluded, namely addiction, exhibitionism/voyeurism, hay fever, tattoos/body piercings and the tendency to set fires, steal, or physically or sexually abuse other persons.
4. What about controlled conditions?
There are a number of conditions which could be described as a disability and which would or could have a substantial adverse effect on a person’s ability to carry out normal day to day activities, but for which medication or other treatment reduces that impact significantly. Examples might include epilepsy or diabetes. Employees with conditions which are successfully being treated may not consider themselves to be disabled, however the Equality Act is clear that conditions should be considered in terms of what the impact would be without the medication or treatment.
5. What if you haven’t been told about a disability?
The protection under the Equality Act only exists where the employer knows about, or could reasonably be expected to know about the disability. In practice this means that even if an employee doesn’t tell you about their condition, or doesn’t tell you it is a disability, or even tells you it is not, the responsibility is still yours to take reasonable steps to establish whether there is a disability or not. Reasonable steps might include seeking medical advice from the employee’s own doctor, or from an Occupational Health adviser, asking the employee directly and/or doing some research into a condition where you know the employee suffers from it. The basic message is don’t wait to be told, if you think a disability might be involved, be proactive and find out for sure.
As you can see, the question of what counts as a disability is not at all straightforward. Each case must be treated and investigated on an individual basis in order to determine whether a disability is involved, and assumptions should not be made.
If you have an employee with a potential disability or are considering employing someone with a disability and would some further advice, do get in touch.