In recognition of International Disability Awareness Day on the 12th of September, this month’s 'In Brief' brings together a range of resources and cases highlighting the importance of recognising and making provision for employees and applicants with disabilities.

Defining Disability

A disability is defined in Section 1 of the Disability Discrimination Act 1995 as “a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.”

A helpful short guide to the Act is available from the Equality Commission here.

 This extract from the guide explains how disability discrimination can occur in employment.

Under the DDA, discrimination in employment occurs when:

• a disabled person is treated less favourably than someone else on the grounds of his/her disability (direct discrimination)
• a disabled person is treated less favourably than someone else and the treatment is for a reason relating to the person’s disability, and this treatment cannot be justified (disability related discrimination)
• there is a failure to make a reasonable adjustment for a disabled person
• victimisation occurs
• a disabled person is subjected to harassment for a reason which relates to their disability.

Duty to Make Reasonable Accommodations

One of the most common areas in relation to case law around disability discrimination is in relation to a failure to make a reasonable adjustment.   A recent publication by Legal Island in association with Lewis Silkin (NI) L.L.P (formerly Jones Cassidy Brett Solicitors) provides guidance for employers in the making of adjustments for employees with a disability.  This has been developed with employers in mind, to help bring guidance and resources for the making of adjustments for disabled applicants and employees into one user-friendly publication.

A review of approximately 250 cases before the NI and GB tribunals and courts which featured reasonable adjustments was undertaken to analyse what the various fora deemed to be ‘reasonable’ adjustments.

We also included numerous other suggestions of reasonable adjustments to highlight that most of them are actually free or relatively inexpensive. Employers should not be scared of employing disabled people – as this guide shows, it generally doesn’t take very many resources to support disabled employees so that they can work effectively and efficiently.  The guide is available here.

Practical lessons from recent case law include the NI case of Edgar v Chief Constable of the PSNI & Others [2021]. This case demonstrates the approach that has to be taken when it comes to reasonable adjustments. It was found that the respondents were aware of the disability and thus had to make reasonable adjustments. However, the Tribunal gave weight to the organisational aims and operational matters of the respondent. Whilst this may not apply to every respondent it does demonstrate that those matters can place limits on what adjustments would be regarded as reasonable. Therefore, as no alternative duties could be outlined by the claimant or respondent it was held that the statutory duty had been complied with.

Remote Working and Recruitment

The impact of Covid-19 has been more severe for those with a disability or health condition that make them more vulnerable if they were to be infected.  Remote working provides employees with a disability a greater opportunity to get access to and remain in employment.  Employers should consider whether a role can be carried out remotely for all or part of the time when recruiting.

Legal Island hosted a webinar with Seamus McGranaghan, Director, O’Reilly Stewart Solicitors and Louise McQuillan, Workplace Solution Specialist, from texthelp on the benefits of remote working for staff with neurodiverse conditions or disabilities.  You can read the transcript from and listen to the webinar here.

In addition the Equality Commission has helpful guidance on recruiting people with disabilities which includes some case study examples of how to make it work and this guidance is available here.

Training for all Staff

Providing training for all staff in equality matters is an essential part of any diversity and inclusion initiative and should also include disability awareness training.

Line Managers in particular will often be the first port of call for any matters relating to the duty to make reasonable adjustments so they should also have an awareness of this duty and be able to identify any barriers to participation by employees with a disability and consider what/how adjustments can be made.

Legal Island is passionate about Diversity and Inclusion and has invested considerable time and effort in creating an e-learning programme that we feel provides comprehensive compliance training for all employees ensuring they are aware of their roles and responsibilities in promoting a diverse and inclusive workplace for everyone. You can find out more about the training here.