Generally, employers should not ask a job applicant questions about health, disability or their absence record before the person has been offered a job either outright or on conditions (such as ‘subject to satisfactory references/health check’). It was common practise for an employer to send out a general health questionnaire alongside an application form for the applicant to complete, asking questions like ‘have you ever had back trouble?’ or ‘do you suffer from diabetes?’. This exercise is generally prohibited now in most circumstances, as is asking any such questions during the actual interview. It is, however, still permitted in very restricted situations. Specific advice should always be taken on this issue.
Where a disability is identified after the person has started work for you, there is a duty upon the employer to make reasonable adjustments to the person’s work, or the workplace itself. This applies at any point during the employment of the person, whether they had the disability before they began work with you, or whether it began a few years down the line. Where any provision, criterion, practice or physical feature of the premises places the disabled person at a substantial disadvantage in comparison with people who are not disabled, the duty is invoked. Making reasonable adjustments may mean making physical changes to your building, changing the way in which the work is done or installing new equipment that will help the disabled person do the job. For example, shelf levels or door handles may be lowered so a person in a wheelchair can reach them, or allowing a worker to start her working day later because she takes medication which makes her drowsy in the mornings.
Legislation simply defines a disabled person as a person with a disability. It would not be possible to create a list of conditions which are classed as disabilities, and therefore whether someone has a disability is generally determined by reference to the effect the condition has on the person. Specifically, for someone to be afforded protection under the legislation, the person must have an impairment that is either physical or mental; the impairment must have adverse effects which are substantial; the substantial effects must be long term; and the substantial adverse effects must be effects on normal day to day activities. However, some people will be deemed as being disabled without having to show that their impairment has the required effect on them i.e. blind people, people who are severely sight impaired, sight impaired or partially sighted.
Some specific conditions are listed as being covered - people with cancer, HIV infection or multiple sclerosis are protected by the legislation from the point of diagnosis.
Certain conditions are not classed as impairments for the purposes of the legislation e.g. addiction to alcohol or smoking or any other substance (other then medically prescribed substances), hay fever, tendency to set fires etc. Impairments that are a consequence of an exempt condition may still be protected i.e. liver disease caused by alcoholism.
If you are unsure how to deal with disability in your workforce, please contact our 24 Hour Advice Service on 0844 892 2772