Disability discrimination claims: preventative steps employers can take

With new employment laws coming into force later this year, employers need to prepare for changes to unfair dismissal rights. Although the qualifying period for ordinary unfair dismissal is being reduced, this does not create new "day-one" rights for disability discrimination, which already has this protection. Employers should nevertheless be alert to the risk of disability discrimination claims, particularly where an employee raises concerns about their health or asks for reasonable adjustments.

“The Employment Tribunals have found that disability can extend to invisible conditions such as untreated anxiety.”

We highlight some practical steps employers can take to reduce the risk of claims and ensure that potential disabilities are identified and managed appropriately.

1. Disability discrimination claims to rise

With the upcoming changes to unfair dismissal rights, employees will have greater access to claims. If an employee raises a disability concern, claiming that the employer failed to make reasonable adjustments or failed to accommodate their condition, the risks for your business can increase.

“It does not matter that the employee was bad at his or her job or that adjustments were impossible in practice.  The law in the UK requires a long process of attempts even if the result is inevitable. The employee of course continues to be paid.”

2. Your first line of defence: Health & Safety reports

Don’t think you can rely on employees to disclose health issues. If an employee does not formally disclose a disability, information may still come to the employer’s attention through a manager or colleague as implied knowledge.

The answer? Occupational health reports can provide an independent assessment of an employee’s health and whether adjustments may be appropriate. For as little as £350 plus VAT, you can get a third-party health assessment that documents any health issues, including disabilities. These reports can be useful evidence when assessing and responding to potential claims.

3. Managerial Training

One of the most critical and often overlooked risks employers face when it comes to disability discrimination claims is lack of awareness among the managers of the need to report indications of health issues. A single failure by one of your managers to report an employee’s disability or health condition could lead to your business being held responsible under vicarious liability.

We are not medical practitioners and cannot tell what is or even could be a disability. The message therefore must be to exercise caution and, if in doubt, report concerns to HR.

“Some employees are canny and start planning their claims well in advance.”

4. What is vicarious liability?

Under employment law, vicarious liability can hold an employer responsible for the actions of its employees in the course of employment. This means that if a manager knows about an employee’s disability but fails to report it to HR or the relevant person within the company, that knowledge may be attributed to the employer in appropriate circumstances.

For example, if an employee has a disability, but their direct manager fails to inform HR or senior management, the employer may not be able to rely on a lack of knowledge of the disability when defending a discrimination claim.

“Adjustments would not necessarily be required for an employee in the same circumstances who did not have a disability.  The employer dealing with a non-disabled person could, depending on the facts, go through a performance review without offering adjustment.”

5. SIMPLE STEPS MAY SAVE YOU

When a claim arises, a small employer will be treated as harshly as a large employer where legal obligations have not been met. Vigilance and monitoring should therefore be seen as an essential part of managing employment risk. Here are some ideas:

1. Clear reporting policy: Every manager should know that they are expected to report information about employee disabilities or health concerns to HR or the relevant person in the organisation. This policy should be formalised, included in your employee handbook, and discussed with managers.
2. Health questionnaires: Ask the employee if there are any conditions which may affect their work or require adjustments.
3. Training on disability awareness: Train your staff on disability awareness and the importance of reporting health and disability concerns. Managers should understand the potential consequences of failing to escalate relevant information.
4. Mandatory record keeping: Establish a system where managers are required to document any conversations or disclosures regarding an employee’s health and disability and send that information to HR in a timely manner. This helps ensure that disability-related matters are properly addressed and creates a record in the event of a dispute.

Taking relatively simple steps now can help employers identify potential disability issues, consider reasonable adjustments and reduce the risk of discrimination claims.

We can guide you through the complexities of the new laws, help you set up the right systems, and ensure your business is fully protected from the increasing threat of disability discrimination claims.