Many employers can find themselves in a situation where they become aware that a recently appointed employee has a disability. This often causes significant concern for the employer as they worry about the potential costs of making reasonable adjustments. However, this need not be the case: reasonable adjustments are not necessarily expensive or difficult to organise. In fact, according to the Equality and Human Rights Commission, most cost nothing, with the average being £75.
It’s also important to remember that the Equality Act 2010 makes it generally unlawful to ask questions about disability and health before the employer makes a job offer. It’s unlawful for employers to discriminate against people with disabilities in their recruitment and selection procedures. To do so means facing the risk of a disability discrimination claim (even if the candidate is not employed by you); the compensation at tribunal for this type of claim is unlimited.
This means that generally speaking, an employer should avoid making enquiries about a job applicant’s disability and health during the recruitment process prior to a job offer being made.
There are some exceptions to this, the most common of which are likely to be:
- To find out if a job applicant can take part in any assessment to test their ability to do the job or to find out if reasonable adjustments are needed to enable a disabled job applicant to take part in any assessment.
Indeed, if your recruitment process involves any tests or exercises then, it would be good practice to ask the applicant in advance if they require any reasonable adjustments to participate in the assessment. The employer should disregard any disability related information provided when making the decision to appoint.
- To find out whether a job applicant will be able to carry out an intrinsic part of the job.
For example, it would be acceptable for a construction company, when recruiting scaffolders, to ask an applicant whether they have a disability or health condition that affects their ability to climb ladders.
One note of caution is that if this part of the job can be changed or assigned to another person then this may count as a reasonable adjustment for a disabled job applicant.
An employer can make an offer conditional on medical checks and then ask health-related questions. Indeed, referring successful candidates to an occupational health practitioner can be a positive step as it should provide an opportunity to explore reasonable adjustments with candidates who have a disability.
Disability and recruitment: legal obligations
However, there is no legal obligation on employees to advise a prospective employer of a medical condition/disability. To try to encourage an applicant to be open and frank during the interview process you can provide them with a detailed list of job functions and ask the question ‘Can you perform all the required job functions and activities listed, with or without reasonable adjustments?’
It the employer subsequently becomes aware that the employee has a disability but they did not declare it at interview, there would be risks associated with trying to resolve the situation by treating it as a disciplinary matter.
Instead it should be treated as capability issue and steps should be taken to identify if the employee is able to continue to carry out his/her role. This is likely to involve an Occupational Health assessment to identify any need for reasonable adjustments. These need to be carefully considered together with potential redeployment options before dismissal is even considered.
Clearly this topic raises sensitive and complex issues for employers. If we can support you in handling any of the issues raised in this article then don’t hesitate to contact us.