THE EQUALITY ACT 2010 DISABILITY IN EMPLOYMENT POLICY POSITIVE ABOUT DISABLED PEOPLE

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1 THE EQUALITY ACT 2010 DISABILITY IN EMPLOYMENT POLICY POSITIVE ABOUT DISABLED PEOPLE Approved by : Joint Staff Committee Date: Ratified by the Executive Governance Committee. Date: Issue date: Version: 3 Review Date November 2016 Policy Lead/Risk Owner Policy Category Director of Human Resources Human Resources Number of Pages Target Audience All Staff Associated Documents Equal Opportunities Policy * Positive Action Guidelines * SLaM Disability Scheme Harassment and Bullying Policy * Flexible Working Guidelines * Sickness Absence Policy This policy document is subject to South London and Maudsley's copyright. Unless expressly indicated on the material to the contrary, it may be reproduced free of charge in any format or medium, provided it is reproduced accurately and not used in a misleading manner or sold for profit. Where this document is re-published or copied to others, you must identify the source of the material and acknowledge the copyright status.

2 Contents Page 1. Introduction 3 2. Scope 3 3. Aims and Objectives 3 4. Policy Statement 3 5. Disability Legislation 4 6. Definition of Disability 5 7. Positive About Disability Symbol commitments 5 8. Trust Responsibilities 6 a) Providing routes into employment 6 b) Recruitment and Selection 6 c) Appointment and Induction 7 9. Retention 7 a) Access to Work Scheme 8 b) Reasonable Adjustments Sources of Help Review 9 Appendix A Reasonable Adjustment Agreement Plan 2

3 1. Introduction This policy supplements South London and Maudsley NHS Foundation Trust s Equal Opportunities Policy which sets out the Trusts aims and objectives with regards to the management and promotion of equal opportunities and diversity. The Trust recognises and welcomes its legal duties and responsibilities under The Equality Act Irrespective of legislation,the Trust also recognises the importance, value and benefits to staff, service users and the general public to proactively and positively promote the principles of good, fair, nondiscriminatory practices in all areas of employment and service delivery. The Equality Act 2010 protects individuals against discrimination because of a number of specified protected characteristics:- Age Gender Reassignment Marriage and civil partnership Pregnancy and maternity Race which includes colour, nationality and ethnic or national origins Religion or Belief Sex Sexual Orientation Disability This policy broadly sets out the Trust position with regards to disability in employment. Detailed actions associated with promoting disability equality are contained within the Trust s Disability Equality Scheme and action plan. 2. Scope This policy applies to all staff employed by the Trust and individuals engaged to undertake Trust business or activities as a locum staff member directly employed by the Trust. It provides specific guidance to managers on the Trust s expectations of how employment related processes are managed with due regard to disability and wider equality issues. 3 Aims and Objectives The aim of this policy is to make all employees aware of the legal responsibilities under The Equality Act 2010 in relation to Disability and also to set out a broad explanation of the Trust s commitment to the Positive About Disability (two ticks) symbol. The policy also serves to increase the basic awareness, knowledge and general understanding of staff on disability issues and the Trusts expectations and commitments. All employees shall therefore be made aware of this policy. 4. Policy Statement South London and Maudsley NHS Foundation Trust views discrimination against staff on the grounds of disability in all aspects of employment as unacceptable and if this occurs will take appropriate action in line with it s relevant policies (e.g. Disciplinary Policy and Harassment and Bullying Policy). The Trust will ensure that steps will be taken to address any concerns that arise about disadvantage faced by staff on the grounds of disability. The Trust s Disability Scheme and Action Plan (Date) 3

4 outlines the steps that will be taken to assess the impact of Trust policies and processes in relation to staff with disabilities. The Trust is committed to developing and maintaining a working environment in which having a disability does not act as a barrier to staff enjoying a positive and full working life in which they are able to reach their full potential. The Trust is therefore committed to actively promoting equality and combating prejudice, stigma, discrimination and harassment of individuals on the grounds of disability. There is a commitment to develop awareness of all Trust staff and tackling any negative assumptions through training and development. 5. Disability Legislation The Equality Act 2010 covers the following types of discrimination in relation to disability Direct Discrimination is where a person is treated less favourably than another because of the protected characteristic of disability. The Act creates a general exception to the prohibition on direct discrimination in employment for a genuine occupational requirement. Indirect Discrimination is where a provision, criterion or practice is applied that is discriminatory in relation to individuals who have a particular disability such that it would be to the detriment of people who share that particular disability compared with people who do not and where it cannot be shown to be a proportionate means of achieving a legitimate aim. Discrimination arising from disability is a new form of discrimination that replaces disability related discrimination. It occurs where an individual has been treated unfavourably because of something arising in consequence of a disability. There is no requirement for a comparator and the reason for the unfavourable treatment is irrelevant. For example disciplining and employee for repeated spelling mistakes in the knowledge that an individual has dyslexia would be unlawful unless it can be demonstrated that the treatment is a proportionate means of achieving a legitimate aim. Employers Obligation to make reasonable adjustment where a physical feature or provision, criterion or practice puts a disabled person at a substantial disadvantage compared with someone who does not have the protected chraracteristic of disability Harassment where there is unwanted conduct related to the protected characteristic of disability that has the purpose or effect of violating a person s dignity; or creating an intimidating, hostile, degrading, humiliating or offensive environment. It does not matter whether or not this effect was intended by the person responsible for the conduct. Associative discrimination is where an individual is directly discriminated against or harassed for association with another individual who has the protected characteristic of disability Perceptive discrimination is where an individual is directly discriminated against or harassed based on a perception that he or she has the protected characteristic of disability, whether or not he or she does, in fact, have that protected characteristic Victimisation occurs where an employee is subjected to a detriment, such as being denied a training opportunity or a promotion, because he or she made or supported a complaint or raised a grievance under the Equality Act 2010, or because he or she is suspected of doing so. An employee is not protected from victimisation if he or she acted maliciously or made or supported an untrue complaint. There is no longer a need for a complainant to compare his or her treatment with someone who has not made or supported a complaint under the Equality Act

5 6. Definition of Disability The Equality Act 2010 describes Disability as a physical or mental impairment that has a substantial and long-term adverse effect on an individual s ability to carry out normal day-to-day activities. Unlike the Disability Discrimination Act 1995, there is no list of capacities that the disability has to have an effect on, such as eyesight, memory or manual dexterity. This should make it easier for an individual to demonstrate that he or she is disabled and will allow tribunals to make practical decisions as to whether or not a mental or physical impairment has the required effect. Normal day-to-day activities can be wide ranging but may involve some aspect of mobility, memory or the ability to concentrate, learn or understand. In a work context a disability may impact on an individuals ability to undertake normal work related tasks without some form of adaptation or adjustment. This may include something as simple as taking a longer time than normal to read and understand documents. There is no single definitive list of conditions that can be regarded as a disability, the definition is based on the impact of the condition and will include age related conditions such as rheumatism, or arthritis, health condition such as heart conditions, diabetes, epilepsy, HIV, renal failure sickle cell anaemia. Many disabilities are described as hidden since they are not visibly obvious. It must also be recognised that many people with a disability who have rights under the DDA, do not choose to use the term disabled to describe themselves. 7. Positive About Disabled People - Symbol Commitments The Disability Symbol (two ticks) acts as recognition given by Jobcentre Plus to employers who have agreed to take action to meet five commitments regarding the employment, retention, training and career development of disabled employees. As a Disability Symbol User the Trust is committed to: Providing a Guaranteed Job Interview To interview all applicants with a disability who meet the minimum criteria for a job vacancy and consider them on their abilities. Consultation with Disabled Employees To ensure there is a mechanism in place to discuss, at any time, but at least once a year, with disabled employees what can be done to make sure they can develop and use their abilities at work. Try to retain employees if they become disabled To make every effort when employees become disabled to make sure they stay in employment. Improve Knowledge To take action to ensure that all employees develop the appropriate level of disability awareness needed to make the Trust s commitments work through appropriate training workshops. Check Progress and Plan Ahead Each year, review these commitments and what has already been achieved, plan ways to improve on them and let all employees know about any future progress and plans. 5

6 The Trust uses the symbol on all job advertisements. Application forms for employment within the Trust specify that a guaranteed interview will be provided to any disabled candidates that meet the essential criteria for the post. 8. Trust Responsibilities A) Providing routes into employment It is recognised that some disabled people may find it difficult to gain and secure permanent employment. This may be the result of limited work experience, the existence of a fragmented work history or practical difficulties in making the transition from benefits into paid employment. The Trust is committed to providing genuine opportunities for people with disabilities to gain work experience through structured placements and volunteering schemes. This not only benefits the individuals themselves but also the Trust as a whole in terms of utilising the knowledge skills and experience of an otherwise untapped resource. It is also congruent with the Trust s diversity principles since work experience opportunities allow greater exposure of staff to working with a range of different people from different backgrounds. The provision of action associated with routes into employment is key feature of the Trust s Disability Scheme and further support advice and guidance will be provided to all Line Managers to ensure greater consistency of practice and opportunities across the Trust. B) Recruitment and Selection In line with the Trust s Equal Opportunities Policy care must be taken to ensure recruitment and selection activities are non-discriminatory. The Trust s HR Department will ensure that they: Ensure mechanisms are in place in Recruitment Services to monitor and ensure the guaranteed interview commitments under the Two Ticks Disability Symbol are carried out. Ensure that mechanisms are in place in Recruitment Services to ensure that shortlisting managers are made aware of any applicant who has indicated that they have a disability and provide appropriate advice to the manager on that disability. Ensure that any special requirements for interview attendance or assessment are available on the appropriate date, time and venue. Ensure that up to date knowledge is maintained with Local Jobcentres Plus, Access to Work and other advisory or specialist agencies that may offer advice and training to disabled staff or employers, eg RNIB, the Dyslexia Association. Recruiting Managers must ensure that they: Follow the expected Trust approach for effective recruitment in line with equal opportunities. This is ensured by attendance on the recruitment and selection training course or at a minimum one to one coaching with HR staff. Take particular care when drawing up job descriptions and person specifications to ensure certain job requirements do not inadvertently exclude people with disabilities. Selection criteria must be strictly related to the needs of the job. 6

7 Take care not to make assumptions about ability or inability to undertake specific aspects of role on the basis of declared disability. It is important to use the occupational health department for such assessments. Consider any reasonable adjustments required to ensure that a disabled candidate is able to participate equally in the recruitment process. This can be achieved through checking out any special requirements of the candidate before the interview takes place. Are prepared to be flexible where paid work experience may be limited i.e. look at transferable skills developed in alternative situations e.g. training centres personal or leisure situations or voluntary activities. C) Appointment and Induction When any employee joins a new organisation, it is expected that they will take some time to adjust to their job and environment. When a disabled person has accepted a job, the recruiting manager must offer them the opportunity to discuss their employment needs before starting. This is over and above the discussions the employee will have with occupational health, which will primarily establish fitness for work. The manager must be clear on how if (at all) the disability may impact on work. In many cases the disability may not be visibly apparent and it will be important to confirm whether the employee would prefer if colleagues knew about their disability or not and any associated issues (e.g. first aid implications if an individual is epileptic and has a seizure at work). The manager should also ensure that there is adequate departmental induction and that any learning and development needs are identified early on. It may also be the case that there are identified training need for colleagues of a newly appointed disabled employee e.g. to familiarise them with methods of communication or any other relevant issues such as training on the condition of the disabled colleague. Relevant associations (e.g. RNIB, RNID) will offer further help with this. On commencement and thereafter at least annually the line manager will complete with the disabled staff member the Reasonable Adjustment Agreement Form. This is to support the recruitment and retention of staff with disability. 9. Retention The concept of reasonable adjustment is the cornerstone of the Equality Act Since 1995 employers have had a legal duty to make such adjustments in order to accommodate employees who may find themselves unable to work under the arrangements they were initially employed due to disability. The Trust policies on Flexible Working and more specifically Sickness Absence have been developed in line with the statutory responsibilities but also in view of the very clear value of retaining the skills and experience of staff where possible if they become unable to fulfil their full range of duties. In managing any such issues it is essential to ensure the early and open discussion and involvement of the person concerned. Support and advice from the Occupational Health department is also essential. The Occupational Health department can advise on what adjustments might be needed and also circumstances where redeployment can and should be pursued. It is ultimately the Line Manager s decision with support and advice from HR on whether an adjustment is reasonable and can be accommodated given the nature and needs of the specific department /service. The Trust however will make significant attempts to retain the services of an employee even if this is within a different role and a reasonable amount of training/development can be provided in any newly identified role. 7

8 Line managers should ensure that they have reasonably considered sources of help available and in particular are advised to liase where appropriate with the Disability Employment Advisors from Jobcentre Plus.. These advisors will have contacts and awareness of various support organisations that may be able to provide specific advice or support on a range of areas. They will also be fully knowledgeable about sources of financial support e.g. through the Access to work Scheme. The Access to Work Scheme is designed for people with a disability, regardless of whether or not they are employed, unemployed or self-employed; in a job that is full time, part time, temporary or permanent. This scheme can make funds available for a wide range of support including communicators, support workers, special aids and adaptations and help with travel costs. Access to Work will provide a grant towards the approved costs that arise because of individuals disability. The amount of grant varies according to the status of the employee. Further information is available from the Access to Work Office of the Department for Work and Pensions. Reasonable Adjustments The duty to make reasonable adjustments arises only where an employer knows, or reasonably ought to know, that an individual is disabled. An employer may not pass on the costs of making reasonable adjustments to a disabled individual. Unlike the Disability Discriminaton Act the Equality Act has no guidance about what factors should be taken into account in deciding whether or not a particular adjustment is reasonable. HR will be able to provide you with advice as to the reasonableness of any considered or requested adjustment. However, listed below are some general examples of adjustments that might be considered as reasonable: Making adjustment to premises Allocating some of the work of the disabled employee s duties to another person Altering working hours or patterns of work Allowing the employee to be absent during working hours for rehabilitation, assessment or training Acquiring or modifying equipment Modifying procedures Providing a reader or interpreter Transferring the employee to an existing vacancy (redeployment) This is not an exhaustive list. 10. Sources of Help Jobcentre Plus The DEA is part of a team of specialist advisers able to offer support and guidance on disability issues and are contacted through the local Jobcentre Plus office. The DEA also offers specialist help and advice on: The recruitment of people with disabilities, and the retention of staff who become disabled whilst in employment. Offering job opportunities in supported placements e.g. Workstep. Support and advice on the legal obligations for employing people with disabilities. The Disability Symbol 8

9 Workplace assessments to help determine what support or adjustment might support a disabled employee The Trust s Disability Network Group This group meets on a regular basis and is attended by the numerous staff working with a disability, the Trust s Disability Lead and Trust s HR Disability Lead. The group helps staff with a disability with individual problems where it can. Its main function is to ensure that disabled staff within the Trust are listened to in terms of policy review, working practices within the Trust and generally championing and supporting staff at work with a disability. 11. Review This policy will be regularly reviewed and developed to ensure that it is up to date with regards to current national and NHS specific principles of best practice and further developments in employment legislation. It will also be reviewed to reflect any changing priorities that arise from the action planning as part of the Trust s published Disability Scheme. SAD/Equalities/Disability Policy 9