The Jersey Employment Trust recently published "Employment and disability: a good practice guide for employers in Jersey". This guide has been produced in partnership with the States of Jersey and is worth reading and adhering to an employer is considering taking on a "disabled" employee, if an existing employee becomes "disabled", and in anticipation of a law on Disability Discrimination coming into effect in the Island.
The Guide defines "disability" or long-term health issues as someone with "a physical or mental impairment which has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities".
"Substantial" is regarded as not minor or more than trivial and "long-term" is regarded as 12 months or more. "Mental impairment" is widely defined but includes conditions such as anxiety, depression, schizophrenia, bipolar disorder, eating disorders and obsessive compulsive disorder.
The Guide covers where the employee (or a proposed employee) has a long term serious illness, recurring conditions that fluctuate, those diagnosed with multiple sclerosis, cancers and HIV, past disabilities (with a history of a particular condition) as well as conditions that are controlled by treatment and cumulative effects (where a person has a number of impairments that individually would not amount to a disability). Interestingly, the Guide covers the scenario where the individual does not actually consider or accept that they have a disability.
The Guide's aim is to assist employers in ensuring they avoid any form of disability discrimination or acts that will directly or indirectly disadvantage certain individuals. It addresses scenarios where there would or could be direct discrimination, indirect discrimination or failure to make reasonable adjustments.
The Guide is very practical and helpfully provides a number of case studies and different examples throughout. Direct Discrimination occurs where someone with a disability is treated less favourably than someone without a disability in the same circumstances, because of the disability. There is no justification by an employer for any form of direct discrimination.
Indirect Discrimination broadly occurs where an employer applies a provision, criterion or practice to people generally, but it puts those with a disability at a particular disadvantage when compared with those who do not.
If an employer can show there is a material and substantial reason for the provision, then this may be sufficient to justify it. Seeking some input from a relevant external organisation early on may help and mean that a valuable employee is not lost through their resignation. It also avoids the possibility of having to defend a claim for constructive unfair dismissal.
However, the employer additionally needs to be able to demonstrate that it has considered whether any reasonable adjustments can be made to remove any barrier(s). Reasonable adjustments to the workplace and employment processes need to be made to ensure compliance both with good practices as well as equal employment opportunities. Making adjustments to physical features of a premises to accommodate the needs of one with a disability is not discriminatory against others without any disability.
Importantly, the onus is on the employer to make the appropriate adjustments as soon as they are aware that an employee has a disability. They do not have to wait until an employee informs them and requests assistance or change.
The adjustment will very much depend on the type of disability, the role and the premises, but could involve equipment being modified or bought, altering the disabled person's working hours, allocating certain tasks elsewhere, and allowing a phased return to work after a period of absence. While an employer is only expected to do what is "reasonable", failing to make a reasonable adjustment could be regarded as discriminatory. If, however, after considering the options, no reasonable adjustment is possible, taking no action is unlikely to be regarded as discriminatory.
All circumstances can and should be taken into account when determining what is reasonable, including effectiveness, practicality, financial and other costs, the impact on resources and an evaluation of potential impact on the nature of the business. What is reasonable for a large employer to implement may not be so in a small organisation.
It is not surprising that employers may feel very daunted by the prospect of having to address the considerations that can potentially apply in accommodating individuals with a disability, and perhaps also understandable in the current economic climate that employers may put off a review until either they have to (where an existing employee requires change to continue to do their job) or indeed, until a law on Disability Discrimination comes into effect (possibly in the next couple of years).
Once the review process has started, employers may be surprised to find that compliance is not going to involve as much as they envisaged in terms of cost or resources. Any changes could occur on a phased basis, which would reduce the impact and also spread the cost.
It is advisable for an employer to note or distinguish any absence that relates specifically to a disability from sickness absence. This may prove useful, such as in a redundancy selection process, particularly if a consideration is the amount of absence taken by those in the pool. It could be regarded as disability related discrimination if the employer took into account absence that related to the disability.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.