By Anthony Wilcox
We are often asked to advise employers and employees about long term illness in the workplace.
Long term illness frequently qualifies for protection as a disability under the Equality Act 2010. This supplements any protection against unfair dismissal that an employee may have.
There is no minimum period of employment to qualify for protection under the Equality Act. Apart from protecting disabled employees, it protects those perceived as disabled, those associated with a disabled person, contract workers, subcontractors and job applicants.
Individuals with cancer, multiple sclerosis and HIV qualify for protection from the time of diagnosis. Other progressive conditions qualify for immediate protection once the condition has some effect on the ability to carry out normal day to day activities providing the effect will become substantial in the future. All other illnesses must meet the definition of disability – a physical or mental impairment which has a substantial and long-term adverse effect on the person’s ability to carry out normal day to day activities.
Protection applies before, during and after employment. Except for enabling adjustments to the recruitment process and to monitor diversity, an employer should not normally seek health information before offering employment unless specific characteristics of a job require it.
Employers of disabled employees are under a duty to make reasonable adjustments, which is especially important with long term illness. Where a provision, criterion or practice places a disabled person at a substantial disadvantage compared to those who are not disabled, the employer must make reasonable adjustments to avoid the disadvantage. Since adjustments must be reasonable and have the effect of removing an identified disadvantage, careful scrutiny of proposed adjustments is important. Although it is the employer’s duty to identify and implement such adjustments, in practice the employee and employer should work together, often seeking medical advice, to identify what adjustments are appropriate and achieve the best outcome for all concerned.
Every situation must be individually assessed, but common adjustments include:
Adjusting premises or equipment
Altering working patterns/arrangements
Providing mentoring and/or assistance
Changing performance targets
It is a common misconception that problems with a disabled employee’s performance and absence cannot be managed even when they are having a detrimental impact on an employer’s business. This is not so. The employee’s rights must be respected and the employer must address the duty to make reasonable adjustments and follow a suitable capability procedure, but these problems can be managed and formal steps taken where appropriate.
The Equality Act provides other forms of protection for disabled employees, including protection from discrimination, unfavourable treatment and harassment. Those who make a complaint of discrimination are also protected from being victimised as a consequence.
Notably, awards for discrimination are unlimited. They are based primarily on an award for injury to feelings and compensation for losses. Although liability usually rests with the employer, individuals responsible for certain forms of discrimination can be personally liable too, underlining the importance of ensuring situations are handled correctly.
Our employment law team are experienced at advising and representing employees and employers dealing with workplace illness issues. We also provide corporate clients with training on managing absence and managing conduct/performance, as well as discrimination.
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