Policy Statement on Disabled People in Employment

Transcription

1 Policy Statement on Disabled People in Employment Review Date: September 2007 Review by: Human Resources Project Manager 1

2 Page updated December GENERAL 1.1 This policy aims to summarise the background to the employment of disabled people, outlining the services and facilities available both to managers and individual employees. 1.2 The Trust Board is concerned with: promoting positive attitudes towards disabled persons, ensuring that there is no unlawful discrimination against or harassment of disabled people related to their disabilities. promoting quality of opportunity between disabled persons and other persons, including encouraging disabled persons to participate in public life. taking steps to take account of disabled persons disabilities, even where this involves treating disabled persons more favourably than others. 1.3 The Trust wishes to ensure that disabled people receive equal opportunity in employment and all officers of the Trust are required not to preclude individuals for consideration for employment merely because of their disability. Every effort must be made to explore ways of accommodating disabled people who are able to make a valuable contribution to the work of the Trust. Individual employees at all levels should co-operate with the measures taken in enabling a disabled person to settle into a job and in helping them to cope with every aspect of it. 2. AIMS The Trust aims to ensure that: steps are taken to raise the awareness of disability throughout the organisation, particularly targeting all staff involved in recruitment and selection process. all reasonable steps are taken to ensure that the working environment does not prevent disabled people from taking up positions for which they are suitably qualified. recruitment procedures are reviewed and developed which encourage applications from and the employment of people with disabilities. steps are taken to ensure that disabled people have the same opportunities as other staff to develop their full potential within the organisation. any employees who become disabled will be given the fullest support to maintain or return to a role appropriate to their experience and abilities. 3. DEFINITION OF DISABILITY 3.1 The Disability Discrimination Act 1995 covers disabled people and people who have had a disability in the past. Disability is defined as: A physical or mental impairment, which has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. 2

3 Page updated December Impairment This covers physical and mental impairments. These include: 3.3 Substantial physical impairments affecting the senses, such as sight and hearing mental impairments including learning disabilities and mental illness (it is no longer a requirement for the mental illness to be clinically well recognised ) For an effect to be substantial, it must be more than minor or trivial. The following are examples that are likely to be considered substantial: 3.4 Long-term inability to see moving traffic clearly enough to cross a road safely inability to turn taps or knobs inability to remember and relay a simple message correctly These are effects that: have lasted at least 12 months, or are likely to last at least 12 months, or are likely to last for the rest of the life of the person affected Long-term effects also include those, which recur or are likely to recur, at least once beyond the 12 month period following the first occurrence. 3.5 Day-to-Day Activities These are normal activities carried out by most people on a regular basis, and must involve one of the following broad categories: mobility moving from place to place manual dexterity for example, use of the hands physical co-ordination continence the ability to lift, carry or move ordinary objects speech, hearing or eyesight memory, or ability to concentrate, learn or understand being able to recognise physical danger 3

4 Page updated December In addition to this broad definition there are a number of special cases which are to be treated as disabilities under the Act. 3.7 Severe Disfigurements The Act s definition treats severe disfigurements as disabilities, although they have no effect on a person s ability to carry out normal day-to-day activities. 3.8 Impairments helped by treatment or artificial aids Such impairments are to be treated as continuing to have an adverse effect on the person s ability to carry out normal day-to-day activities, if that would be the effect in the absence of the control or correction. One exception to this is poor eyesight, which is excluded where the impairment is correctable by spectacles or contact lenses or such other ways as may be prescribed. If, however, the treatment is likely to cure the impairment, this should be taken into account in assessing whether the impairment is long-term. 3.9 Specific medical conditions Schedule 1 of the Act brings specific medical conditions within the scope of protection from disability discrimination. These are as follows: cancer HIV infection multiple sclerosis The Act covers people with these conditions from the point of diagnosis and they will not have to show that the condition has an adverse effect that is likely to become substantial in the future Past Disabilities The definition covers people who have had a disability in the past. If a person once had a disability, which is covered by the Act, they are still protected if they have recovered. This applies even if they recovered before the Act came into force. 4. RESPONSIBILITIES UNDER THE ACT 4.1 Employees of the Trust must not unlawfully discriminate or help another person discriminate against current or prospective employees with disabilities because of a reason relating to their disability. 4.2 Unlawful discrimination occurs when a disabled person is treated less favourably than someone else. There are a number of forms of discrimination that are unlawful under the Act as follows: 4

5 Page updated April An employer s treatment of a disabled person amounts to direct discrimination if: it is on the grounds of his/her disability the treatment is less favourable than the way in which a person not having that particular disability is (or would be) treated and the relevant circumstances, including the abilities of the person with whom the comparison is made are the same as, or not materially different from those of the disabled person. Such treatment cannot be justified Failure to comply with a duty to make reasonable adjustments, which amounts to discrimination in its own right and cannot be justified. The duty to make reasonable adjustments arises where a provision, criterion or practice applied by or on behalf of the employer, or any physical feature of premises occupied by the employer, places a disabled person at a substantial disadvantage compared with people who are not disabled. It may be necessary to consider a failure to comply, in order to determine if disabilityrelated discrimination has occurred Disability-related discrimination does not amount to direct discrimination under the Act. In determining whether disability-related discrimination has occurred, the employer s treatment of the disabled person must be compared with that of a person to whom the disability-related reason does not apply. It may be possible to justify disability-related discrimination if the reason for the treatment is both material to the circumstances of the particular case and substantial. However, it has to be considered as to whether the treatment would still have been justified even if the employer had complied with its duty to make reasonable adjustments Victimisation It is unlawful for a person to treat another ( the victim ) less favourably than he/she treats or would treat other people in the same circumstances because the victim has: brought or given evidence or information in connection with proceedings under the Act (whether or not proceedings are later withdrawn). done anything else under or by reference to the Act, or alleged someone has contravened the Act (whether or not the allegation is later dropped). because the person believes or suspects that the victim has done or intends to do any of these things In relation to recruitment and retention of staff, it is unlawful for an employer to subject a disabled person to harassment for a reason which relates to his/her 5

6 Page updated April 2005 disability. Harassment occurs where, for a reason which relates to a person s disability, another person engages in unwanted conduct which has the purpose or effect of violating the disabled person s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment (also see the Trust s Bullying and Harassment Policy). 4.3 Employees of the Trust must not discriminate against a disabled person in: recruitment and retention of employees promotion and transfers training and development the dismissal process after employment has ended 4.4 Appropriate Officers must also be prepared to make reasonable changes to the premises or employment arrangements, if these substantially disadvantage a disabled employee, or prospective employee, compared to a non-disabled person. (See below for examples) 4.5 Unlawful discrimination against a disabled person may result in the implementation of the disciplinary procedure. 5. RECRUITMENT AND RETENTION 5.1 It can be difficult to dispense with preconceived ideas about the range or type of work disabled people can do, but it will be of mutual benefit to make sure that disabled applicants are always fully and fairly considered on their merits. This positive attitude should also encourage disabled employees to compete for jobs on their merits and for management to derive maximum benefit from their services. 5.2 Recruitment All Trust vacancies will be open to suitably qualified disabled persons, subject to safety considerations All disabled applicants who meet the minimum criteria for selection will normally be invited for interview The Selection Process should not favour people without disabilities. Reasonable adjustments should be made to accommodate individual needs of disabled applicants Discrimination against disability at the point of selection is unlawful and against Trust Policy, unless it can be justified on substantial grounds There is a requirement to make reasonable adjustments so as not to disadvantage a disabled applicant. These could include such things as: Job restructuring 6

7 Page updated April 2005 Making adjustments to premises Altering working hours Assigning the disabled person to a different place of work Acquiring or modifying equipment Modifying instruction or reference manuals Providing a reader, interpreter or personal assistant Consultation with a disabled applicant about the nature of their disability and their needs for overcoming any disadvantages will be appropriate before a decision is finally made about appointment However, there will be times when having considered what reasonable adjustments could be made there remains a substantial reason for not appointing on the grounds of a disability. Where additional funding is required to make an adjustment, financial assistance may be available and these possibilities must be explored before rejecting on the grounds of unreasonable cost. 5.3 Retention The duties and working conditions of disabled employees will be reviewed periodically in the light of any changes in their condition with the view to assessing whether any reasonable adjustments are necessary. This might be done through the line manager or through Occupational Health. Having been through this process, if a disabled employee is unable to continue in the existing post, suitable alternative employment will be sought in the first instance. A representative from Employment Services will work with the manager to find a solution. Consideration can be given to: Whether the employee can continue in the same or a similar job Whether any reasonable adjustments can be made to allow that person to continue in the same/similar job, for example, allocating some of the disabled employee s duties to another person, agreeing to flexible working The type of job that might be suitable if continuing in the same job is not possible What steps may be necessary to enable an employee to transfer to a new post, including: reference if appropriate to the Trust's own Occupational Health Services, additional supervision/training. Whilst it is unnecessary to create a new role for the disabled employee, if there is a vacancy for which the employee would be suitable, then generally he/she should be transferred into that role without the necessity of competitive interview Jobcentre Plus through the Access to Work Scheme is able to give advice and can arrange, at no charge, for an employment assessment to be made and may provide a grant towards additional employment costs. 7

8 Page updated April Dismissal is unlikely to be an appropriate course of action until all the above steps have been properly considered and documented. Fulfilling the requirement to make reasonable adjustments where possible is key in determining whether any dismissal is ultimately reasonable in all the circumstances 6. TRAINING 6.1 Induction Training It is important, after getting the employee s consent, to ensure that the supervisor understands the nature of the disability of a new disabled employee, any implications it may have for the working routine and to see that fellow employees are sufficiently informed. Disabled persons do however have a right to expect the nature of their disability to remain confidential unless other staff have a genuine need to know, and the likely extent of the need to know categories of staff should be discussed with the disabled person at interview. 6.2 Career Development and Training It is important for disabled people to have equal opportunities with others to develop new skills and advance their careers. Therefore, judgement about an employee's potential to undertake more demanding work or to carry greater responsibilities should be based on realistic assessment of their aptitudes and abilities, disregarding any preconceived ideas about the nature of the disability or the limitations imposed by it. 7. EMPLOYEES WHO BECOME DISABLED WHILST IN THE EMPLOYMENT OF THE TRUST 7.1 If an employee becomes disabled in accordance with the Act, for example through an accident and is absent from work or if they remain at work and their disability develops progressively, then the Occupational Health Department/manager/ Employment Services will maintain regular contact with the employee to monitor progress and, at an appropriate stage, consider possible courses of action and the effect which any disability might have on future employment. For factors to be considered see paragraphs In every case involving long-term sickness absence or persistent intermittent absences, it will be necessary to determine whether an employee is in fact disabled under the terms of the Act. It is therefore essential that early advice is sought both from Occupational Health and the employee s G.P., following normal procedures, and careful consideration given as to whether they fall within the definition of disability or not. The decision is not a purely medical one; Employment Services will need to apply the definition from the Act taking into account the medical evidence. 8. HEALTH AND SAFETY 8.1 Evidence both in the UK and abroad suggests that most disabled people have good attendance records are dedicated and conscientious workers, and are well able to cope with the demands of a normal day s work. 8.2 The Health and Safety at Work Act stipulates that employers are required to provide for the safety of all employees, including those who are disabled. When care is 8

9 Page updated December 2005 taken in selecting suitable employment for disabled people there is no evidence that the risk of accidents involving them is greater than for other employees. 8.3 If it is thought that special precautions may be necessary to ensure that a person's disability does not create any hazard either for the individual concerned or for others, the Director of Human Resources shall be notified and shall subsequently seek the advice of the Health and Safety Executive or local fire authority. Changes which would involve breaking Health and Safety Laws would not be expected to be made. 9. COMPLAINTS Any employee/job applicant who considers that he or she has been treated unfairly or discriminated against on grounds of their disability should initially use the complaints/grievance procedures. Under the Act, disabled people who feel they have been discriminated against can take their case to an Employment Tribunal. 10. MONITORING Responsibility for the overall development and monitoring of this policy rests with the Director of Human Resources. Responsibility for implementation in individual Divisions/Departments rests with the appropriate manager. Employment Services will advise managers as individual situations arise. This policy will be communicated to all levels of the workforce, and companies whose employees work within the Trust. All aspects of this policy will be regularly reviewed. Monitoring of disabled applicants will be carried out through the Trust's Equal Opportunities Monitoring System. 11. CONCLUSION 11.1 This policy attempts to explain the present situation in connection with the Disability Discrimination Act The overall aim of Management is to realise the positive and valuable contribution that disabled workers can make at all levels. Disabled people do not seek or want preferential treatment from employers. All they want is to be given the chance to complete for jobs on equal terms Any further enquiries may be made to the Human Resources Department. Approved by the Trust Board