The charity, Scope, has set up a campaign to gather the views of disabled people who may be affected by the cuts and are encouraging people to sign a petition. Scope’s website indicates that disabled people fear they will be forced to return to the workplace, into roles which they are not capable of doing.
With this in mind, below are some of the key employment law issues that employers should be aware of.
Equality Act 2010 – disability discrimination
The introduction of the Equality Act, most of which came into force on 1 October 2010, extends protection in the workplace for disabled people and makes it easier for them to claim that they have been discriminated against.
Employers should note, for instance, that the Equality Act:
- Extends statutory protection to those ‘associated’ with disabled people, such as their carers and parents
- Extends statutory protection to those who are incorrectly perceived as having a disability
- Extends the scope of disability discrimination law to cover indirect discrimination
- Explicitly requires employers, where the lack of an auxiliary aid would put a disabled person at a substantial disadvantage, to take such steps as it is reasonable to have to take to provide the auxiliary aid
Further, the Equality Act prohibits an employer from asking a job applicant to complete a pre-employment health questionnaire except where there are permissible reasons, which can be summarised as follows:
- Assessing the duty to make reasonable adjustments
- Establishing whether the applicant can carry out a function that is intrinsic to the job concerned
- Monitoring diversity
- Where there is an occupational requirement to have a particular disability
- For the purposes of taking positive action permitted under other provisions of the Equality Act
The aim of placing limits on the use of pre-employment health questionnaires is to prevent discrimination at the selection stage.
Before issuing a pre-employment health questionnaire, employers should therefore establish that they fall within one or more of the permissible reasons. Failure to do so will expose the employer to potential disability discrimination claims.
Contractual sick pay and permanent health insurance
Some employers may feel there is an additional financial exposure, when hiring disabled employees, to higher contractual sick pay payments and higher permanent health insurance premiums.
Such employers may therefore seek to remove or lessen the level of contractual sick pay and PHI benefit for disabled employees. Note, however, that such a move could expose such an employer to a range of disability discrimination claims, including direct disability claims that are not capable of being justified.
Employers should also be careful not to expose themselves to potentially large breach-of-contract claims if their actions could be construed as wrongfully depriving a disabled employee (or any other employee) of the possibility of cover under a PHI scheme; for instance, if an employer were to dismiss a disabled employee who might otherwise have benefitted under a PHI scheme.
If an employer were to dismiss a disabled employee (with one year’s service), in a discriminatory way, that employee would also be likely to have grounds to bring a claim for unfair dismissal.
If it is the case that Government spending cuts will force more disabled employees back to work, this is added reason for employers to ensure they are fully aware of their obligations to disabled job applicants and employees (as well as non-disabled job applicants and employees who are ‘associated’ with a disabled person or are ‘perceived’ to be disabled) and that their procedures and practices do not expose them to a range of potentially costly claims.
Emma O’Byrne, employment department, Russell-Cooke Solicitors