Disability discrimination: managing disability in the employment lifecycle. Philip Bartlett and Sarah Wybron
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1 Disability discrimination: managing disability in the employment lifecycle Philip Bartlett and Sarah Wybron 04 March 2015
2 Introductions Legal position and recent case law Recruitment Performance management Disciplinary and grievance processes Managing absence Terminating employment Key questions Q&A 2 / L_LIVE_EMEA1: v1
3 The Legal position Disability is one of nine protected characteristics under the Equality Act 2010 Section 6 of the Equality Act 2010 contains the statutory definition of disability: A person (P) has a disability if: P has a physical or mental impairment, and The impairment has a substantial and long-term adverse effect on P s ability to carry out normal day-to-day activities Deemed disabilities: blindness, severe sight impairment, severe disfigurements, cancer, HIV infection, multiple sclerosis Excluded conditions: i.e. addiction to alcohol, nicotine or any other substance (although conditions arising from that addiction may meet the definition of a disability). 3 / L_LIVE_EMEA1: v1
4 The Legal position Types of discrimination: Direct discrimination Discrimination arising from disability* Indirect discrimination (PCP)* Failing to make reasonable adjustments Harassment Victimisation *Objective justification Knowledge 4 / L_LIVE_EMEA1: v1
5 Recent caselaw Z v A Government Department Inability to have a child naturally did not in itself hinder the person s full and effective participation in professional life on an equal basis with other workers. Fag og Arbejde, acting on behalf of Kaltoft v Kommunernes Landsforening, acting on behalf of the Municipality of Bullund Obesity of itself is not a disability, but the effects of obesity can be. Hainsworth v Ministry of Defence No duty on employer to make reasonable adjustment to transfer nondisabled employee whose daughter has Down s syndrome from Germany to the UK. 5 / L_LIVE_EMEA1: v1
6 Recruitment Advertising roles Arrangements for interview / assessment Information Making enquiries of employee Pre-employment health questions Decision making 6 / L_LIVE_EMEA1: v1
7 Performance Management Disability related reasons for drop-off in performance Reasonable adjustments Absence Talk to employee Consider Occupational Health referral 7 / L_LIVE_EMEA1: v1
8 Disciplinary and grievance processes Reasonable adjustments Delay to process Culpability Consider Occupational Health referral Open dialogue with employee 8 / L_LIVE_EMEA1: v1
9 Managing absence Occupational Health Phased return to work Supervision on return to work Reasonable adjustments Sick Pay 9 / L_LIVE_EMEA1: v1
10 Terminating employment Capability (performance) Reasonable adjustments Justification if disability related Conduct Reasonable adjustments Justification if disability related Capability (absence) Reasonable adjustments Justification if disability related Redundancy Disability related absence Reasonable adjustments to selection criteria 10 / L_LIVE_EMEA1: v1
11 Key questions to have in mind: Is the employee disabled? Do you have enough information? Do you need medical advice? Have you challenged it? Have you talked to the employee? Have you thought about reasonable adjustments? Where treatment is disability-related how are you going to justify it? 11 / L_LIVE_EMEA1: v1
12 Questions? Simmons & Simmons LLP Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities. 12 / L_LIVE_EMEA1: v1 Doc ID: L_LIVE_EMEA1: v1
13 simmons-simmons.com elexica.com This document is for general guidance only. It does not contain definitive advice. SIMMONS & SIMMONS and S&S are registered trade marks of Simmons & Simmons LLP. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated practices. Accordingly, references to Simmons & Simmons mean Simmons & Simmons LLP and the other partnerships and other entities or practices authorised to use the name Simmons & Simmons or one or more of those practices as the context requires. The word partner refers to a member of Simmons & Simmons LLP or an employee or consultant with equivalent standing and qualifications or to an individual with equivalent status in one of Simmons & Simmons LLP s affiliated practices. For further information on the international entities and practices, refer to simmonssimmons.com/legalresp. Simmons & Simmons LLP is a limited liability partnership registered in England & Wales with number OC and with its registered office at CityPoint, One Ropemaker Street, London EC2Y 9SS. It is authorised and regulated by the Solicitors Regulation Authority. A list of members and other partners together with their professional qualifications is available for inspection at the above address. Simmons & Simmons LLP Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities. 13 / L_LIVE_EMEA1: v1 Doc ID: L_LIVE_EMEA1: v1
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