What is classed as disability at work

Don’t pay the high cost of failing to support an employee with a disability

News of a bank worker being awarded £4.7m for disability discrimination should serve as a timely reminder, if ever one was needed, of what the cost can be of disability discrimination in the workplace.

The total payout is thought to be the largest award ever made by a British Employment Tribunal for such a claim.

The claimant, known only as AB, who was run over while walking to her first day at work, suffered with severe depression and psychosis and was made to feel ‘worthless’ by staff at several London branches, a tribunal heard. (1)

The Employment Appeals Tribunal found the employer’s failure to make reasonable adjustments relating to the employee’s workstation, requiring her to work on the till, bullying comments towards her and not permitting her to transfer to another bank amounted to discrimination.

There is no limit to the amount of compensation that can be awarded in the event of a successful claim for disability discrimination, or indeed any type of discrimination.

Figures from the Labour Force Survey January to March 2018 revealed that more than 3.7 million disabled people were in work in the UK. (2)

Here we take a look at what is classed as a disability at work.

You are disabled under the Equality Act 2010 if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities. (3)

• ‘substantial’ is more than minor or trivial, eg it takes much longer than it usually would to complete a daily task like getting dressed.

• ‘long-term’ means 12 months or more, eg a breathing condition that develops as a result of a lung infection.

Impairments that are automatically treated as a disability are covered in Schedule 1, Part 1 of the Equality Act 2010 (4) and include:

• Cancer, including skin growths that need removing before they become cancerous.
• A visual impairment - this means you’re certified as blind, severely sight impaired, sight impaired or partially sighted
• Multiple sclerosis.
• An HIV infection - even if you don't have any symptoms
• A severe, long-term disfigurement - for example severe facial scarring or a skin disease

An employee who has suffered long-term with poor mental health - for example stress, anxiety and depression - can be considered to have a disability.

A study into workplace wellbeing by the mental health charity Mind, which quizzed 44,000 employees, revealed that nearly half (48 per cent) of those questioned said they had experienced a mental health problem in their job. (5)

An Employment Tribunal will ultimately decide if an employee has a condition that meets the definition of a disability, and if they have suffered discrimination as a result of it.

Other conditions that may be classed as a disability in the workplace, depending on the extent to which they affect an employee’s capacity to carry out normal activity, include:

• Problems with hearing.
• Conditions that affect certain organs such as heart disease, asthma, and strokes.
• Learning difficulties such as dyslexia and dyspraxia.
• Impairments due to injury to the body or brain.
• Conditions where the effects differ over time or come in episodes for example osteoarthritis, rheumatoid arthritis, fibromyalgia and ME
• Progressive conditions such as motor neurone disease, muscular dystrophy and forms of dementia.

Each case should be considered individually and employers should always seek expert help, for example in the form of occupational health, when dealing with potential cases of disability.

An employer needs to have a good knowledge of its responsibilities and to make reasonable adjustments in order to prevent any disabled employee in its workforce from suffering a disadvantage in the workplace.

The employer’s duty to make reasonable adjustments is in section 20 of the Equality Act 2010. (6) Section 21 says that if an employer fails to make a reasonable adjustment it is discrimination.

References:

(1) Severe depression and psychosis and was made to feel ‘worthless’  [Internet] www.peoplemanagement.co.uk [cited 4.5.20] https://www.peoplemanagement.co.uk/news/articles/tribunal-awards-record-4m-to-bank-worker-bullied-over-disability

(2) More than 3.7 million disabled people were in work in the UK [Internet] www.ons.gov.uk [cited 4.5.20] https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/datasets/labourmarketstatusofdisabledpeoplea08

(3) You are disabled under the Equality Act 2010 if...  [Internet] www.gov.uk [cited 4.5.20] https://www.gov.uk/definition-of-disability-under-equality-act-2010

(4) Impairments that are automatically treated as a disability [Internet] www.legislation,gov.uk [cited 4.5.20] http://www.legislation.gov.uk/ukpga/2010/15/schedule/1

(5) Half of those questioned said they had experienced a mental health problem [Internet] www.mind.org.uk [cited 4.5.20] https://www.mind.org.uk/news-campaigns/news/half-of-workers-have-experienced-poor-mental-health-in-current-job/

(6) Employer’s duty to make reasonable adjustments [Internet] www.legislation,gov.uk [cited 4.5.20] http://www.legislation.gov.uk/ukpga/2010/15/section/20.

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