When is an employee considered disabled?
What is a disability? Is it a physical or mental defect, and if someone has recovered from a disabling disease, are they still considered disabled?
Disability discrimination is a minefield for HR managers and constantly evolving legislation means it’s vital that you stay up to date with current policy so you don’t fall foul of the law.
The facts
Whether dealing with current employees or recruiting new ones, there are a few things you need to know.
A person is considered to have as a disability if “he or she has a physical or mental impairment that has a substantial and long-term effect on his or her ability to carry out normal day-to-day activities”.
A disability also exists when there is a condition which would be “likely” to substantially and adversely affect a person’s ability to carry out their normal day-to-day activities, if they weren’t taking measures to treat or correct it.
Disability discrimination is specific in including protection for those with conditions where the disabling impact is concealed so long as it is controlled by management or medication. It also includes in its definition of disability conditions where, even though an impairment no longer has a substantial adverse effect, it is “likely to recur”.
Lawyers spend many hours in court squabbling over the correct interpretations of these terms and landmark cases have deemed that the current meaning of “likely to recur” is “could well happen”, rather than the previously established “more probable than not”.
The implications for your business
This means people with recurring but controlled physical or mental conditions which vary in severity over time should be termed “disabled” and be covered by disability law. It also provides discrimination protection to people with health conditions where symptoms can be managed but may vary, such as diabetes, multiple sclerosis and epilepsy.
If it’s established that disabling effects could well occur if an employee’s treatment is disrupted, as their employer, you are now required to make reasonable adjustments to support and accommodate them.
Because “could well happen” is a less rigorous test than the previous classification of “more probable than not”, it can be argued that the law is on the employee’s side. If you went to a bookmakers you can get odds on Cliff Richard winning Wimbledon – anything “could well happen”.
What you can do
As successful treatment or management can mask underlying disabilities, it is now vital that you err on the side of caution where employees’ health matters are concerned, even if they don’t appear to be disabled in terms of your understanding of the term.
The area where the law does favour the employer is that you have to be made aware of any disabilities that your staff have that may prevent them from undertaking certain areas of work. Even if a condition is being treated and is under control, if it “could well” return, then they can only make a grievance if you knew about it.
You’re well within your rights to ask your employees about their disabilities and it’s important to let them know that you’re doing so so you can help them work in way that makes things easier for them.
Establish who is carrying a condition, either a current condition or one that “could well” reoccur in the future, and work out practical measures to accommodate all. Of course not every employee will want everyone knowing about certain medical conditions, but if you ensure that they can confide in a member of the HR team if they need to, you will make them feel that you are taking their condition seriously.
You may think that these are unnecessary measures and that you already take every care to treat your employees equally. However, read through some of the cases that have shaped disability discrimination law and you’ll find companies who have lost thousands of pounds despite thinking they were acting within the law.
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