21st March 2022

Disability Discrimination: 3 common mistakes made by employers

When you consider that most disabled people are not born with their disability but become disabled during their working life and many disabilities are either not obvious to, or not known, or misunderstood by others, it is no wonder my bread and butter is advising on disability discrimination.

Sadly, I’m all too often asked for help by employers when there’s already a dispute. I’d much rather be helping employers prevent discrimination in the workplace. That’s why I was delighted to be asked by one of our attendees at March’s Ask the Expert, ‘what can employers do to avoid disability discrimination claims?’  

In my experience, there’s typically at least one of the following three issues at the heart of any dispute:

  1. Too much reliance on assumptions and personal experiences.

To make assumptions about another’s health, and to rely on our own experiences to form of a view of another’s experience, is asking for trouble.  Assumptions, by their nature, are accepted as true without proof. For example, it’s a common assumption that an employee certified as unfit to work due to depression isn’t well enough to do much at all including socialise with friends at the weekend.   However, such assumptions are made without the benefit of understanding the impact of the condition on the person (nature, severity and duration). When we rely on our own personal experiences we also fail to take into account the impact of the condition on the person. The impact on one person will be different to the impact on another.  The fix for this problem is to become informed.

  1. Not obtaining medical evidence or using medical evidence half-heartedly

The question of whether or not an employee is disabled is a legal question, not a medical one, but medical evidence is helpful in gaining an understanding of both a person’s condition and its impact on them, thereby ensuring any decisions taken are in light of all the facts. Medical evidence is the first step to becoming informed. The common mistakes made by employers are: not obtaining medical evidence; not obtaining up to date medical evidence where that is necessary; not asking the right questions of the person’s GP or the Occupational Health practitioner; and either rubber stamping the medical report or choosing to ignore its contents. Medical evidence is the first step to becoming informed. The fix for this problem is to take advice on when and how to obtain medical evidence and on the contents of the medical report.

  1. Ignoring the issues.

Sweeping anything under the carpet is rarely the answer and it certainly isn’t when dealing with an employee with a disability. Common criticisms of employers made by the Employment Tribunals include:  failure to try to understand the person’s condition; failure to consider any reasonable adjustments that were necessary; failure to provide help and support;  and having a closed mind to the person’s disability. Employers must not shy away from having conversations with disabled employees about their conditions and their needs simply because they are embarrassed, worried about making a mistake or causing offence. The fix for this problem is training for managers to give them the confidence to have these conversations.

The simple point is this: failing to be proactive about disability in the workplace because of ignorance, inexperience, a desire not to cause upset or embarrassment, or a fear of what might be discovered or what steps may need to be taken  will not provide protection in the Tribunal and may result in uncapped awards.

If you would like learn more about avoiding disability discrimination claims or would like help and advice about any other employment law related matter contact a member of the Blackadders Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.  Why not join us at the next Ask the Expert on Friday 8 April?

Donna Reynolds employment law partner

Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law
@EmpLawyerDonna

www.blackadders.co.uk

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