Discrimination arising from Disability

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Let’s look at 5 areas:

1. Dismissing an employee for disability-related absences

Employers need to tread carefully when deciding to dismiss a disabled employee due to disabled-related time off work. Even if the absences trigger the organisation’s attendance policy.

In one case, Griffiths v Secretary of State for Work and Pensions, the Court of Appeal held that dismissing an employee for disability-related absences that trigger the application of an attendance policy could constitute discrimination arising from disability.

2. Reasonable adjustments during redundancy process

Employers that fail to make reasonable adjustments in a redundancy process could risk a claim for discrimination arising from disability.

In Waddingham v NHS Business Services Authority, the employee, who was having cancer treatment, was required to undergo a competitive interview process during a redeployment exercise. The employment tribunal held that the employer failed to make reasonable adjustments for the employee. This amounted to discrimination arising from disability.

3. Failing to consider suitable alternative employment

In a redeployment exercise, employers must think carefully about how a disabled employee’s skills can be retained and what training may be required to successfully redeploy them.

In Horler v Chief Constable of South Wales Police, the employment tribunal found that the police had not met their duty to make reasonable adjustments because of failure to consider alternative posts for a police officer who was unable to carry out frontline duties because of a disability. Consequently, this amounted to discrimination arising from disability.

4. Giving negative verbal references or withdrawing job offers

Giving negative verbal references because of a former employee’s disability-related absence may amount to discrimination arising from disability. So too could the subsequent withdrawal of a job offer.

In Pnaiser v NHS England and another, the employee’s disability meant that she had a number of lengthy absences and regularly needed to work at home.

The  Employment Appeal Tribunal (EAT) held that her former employer’s negative verbal reference and prospective employer’s subsequent withdrawal of a job offer both amounted to discrimination arising from disability.

5. Making reasonable adjustments to bonus schemes

Refusing to pay a bonus to an employee who has received a formal warning for disability-related sickness absence may lead to a successful claim for discrimination arising from disability.

In Land Registry v Houghton and others, the EAT held that the employer’s failure to pay a bonus to employees was because the employees had received a disability-related sickness absence warning and was, therefore, discrimination arising from disability.

As we go about our daily tasks, it is not easy to know the law and stay compliant. It’s also not practical for a business owner to take all this risk on their shoulders. Yes, you may have an HR Director/Manager who has responsibility for this area but ultimately, if something is missed, it lands back on the owner’s desk. Usually when the ‘monkey is on the operating table’, causing much stress and worry.

The answer is to employ a Professional Employer Organisation. Talk to us at Foxton Wren Ltd on 033 33 214 216. We really can take all this worry away.

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