Equality, Disability Discrimination and Compliance
Legislation states that it is unlawful for an employer to discriminate against any person who is disabled:
- in the terms of employment offered;
- in the opportunities for promotion, transfer, training or receiving any other benefit;
- by refusing to offer them, or deliberately not offering, any such opportunity; or
- by dismissing the person, or subjecting them to any other negative treatment.
If a person becomes disabled or develops a health condition while at work, commenced employment with a disability, or find their health or disability changes, it is important to know what actions to take to assist the employee in their role, gain promotion or help them to take on a new role.
Employers may need to make ‘reasonable adjustments’ to help the disabled employee carry out their tasks or to gain new skills. Sometimes particular changes may not be required to begin with but that can change if:
- the job changes
- the tasks change
- their health or disability needs change
- new technology or equipment could be of benefit to them
- the employer moves location
- the disabled person changes the space they work in
- new systems, policies, or procedures are brought in.
All employees who have a disability or health condition are protected by legislation. There will be times when a particular job or task puts their health or safety at such risk that it is not reasonable for an employer to allow them to perform it. However, such examples are rare, and health and safety should never be used as a false excuse for not employing, or not continuing to employing a disabled person.
Legal action under disability discrimination legislation is taken by individuals, not by any enforcement body.
Under Health and Safety at Work legislation, employers must ‘ensure so far as is reasonably practicable’ the health, safety and welfare of all employees at work. All employers must carry out a risk assessment of the activities carried out by workers. Risk assessments should consider the additional risks to certain groups of workers. A disabled person may fall into this category. If the employer thinks there is a specific health and safety risk involved in recruiting or retaining a particular disabled person, then under disability discrimination legislation they need to consider ‘reasonable adjustments’.
The quality of the risk assessment is critical. The employer may need to use specialist staff to carry out the assessment. The person doing the assessment must:
- focus on disabled persons as individuals, not people with the condition in general;
- consider the facts;
- not make assumptions;
- get individual specific medical advice; and
- talk to the disabled persons about how reasonable adjustments can be made.
The risk assessment should also consider the essential elements of the job; the length of time and frequency of any hazardous situations; and any reasonable adjustments that can be made to reduce the risk. In very rare cases, if there is still an unacceptable risk, even with adjustments, then the employer could lawfully dismiss or not employ the disabled person(s). The question is based on what is ‘unacceptable’: this can only be tested in the courts. Increasing case law precedent is being set, which gives further guidance to employers.
The employer is the person who must take the decision about whether to employ or retain a disabled person in a job. If they seek expert advice from medical services or health and safety specialist the employer has a duty to ensure that the specialists have considered all the facts.
Fire Hazards and Lifts
One thing that employers often worry about when thinking about employing a disabled person is what would happen in the event of a fire. This is often based on lack of information, with employers wrongly believing that wheelchair users should not be employed because they would not be able to escape from a building on fire where lifts were out of use. Deaf, hearing impaired or blind people may also be discriminated against because people wrongly believe they won’t know there is a fire alarm or may delay other colleagues from trying to escape.
If disabled persons have a disability that may present a difficulty during a fire at the workplace, the employer need to have discussion with them and draw up an agreed plan.
There may be very simple changes that can be made to stop this from ever being a problem:
- provision of flashing lights as alarms, as well as things that make a noise;
- ensuring that colleagues working with deaf people have a basic awareness of sign language and deaf issues;
- the use of ‘buddy’ systems to ensure wheelchair users are helped in an emergency;
- provision to a visually impaired person of a named guide in case of fire;
- provision of temporary places of refuge for wheelchair users protected by fire resistant doors and from which there is a safe route to a final exit (the refuge may also have a means of communication to a central control point); or
- in all cases, training for staff in relation to evacuation plans.
These plans should be made known to all staff concerned and tested at regular intervals. A well thought out evacuation plan should take into account the needs of every individual in the building, including, for example, women in the later stages of pregnancy. Very often, this can help to improve procedures and safety overall.
Individual difficulties should be discussed in confidence, in which case only certain key individuals need know about their unique plan.
Further advice and guidance on any of the issues associated with the employment of people with disabilities or the advice contained in this guidance note is available from our 24 Hour Advice Service.
- In GB call 0844 892 2772 option 2;
- In Northern Ireland call 0844 892 2786 option 2;
- In the Republic of Ireland call 01 855 5050 option 2; or
- Use the ‘Advice → Request Advice’ tabs in our on-line SafetyWise system.