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Disability Discrimination – Second only to Sex Discrimination in the Workplace

In the year to March 31 2011 Disability Discrimination Claims brought to Tribunal were second only to Sex Discrimination in the number of successful claims, and an average award of £14,137 was made with the highest being £181,083.  (Source DWP) The evidence suggests that for the year to March 2012, these figures are likely to increase.  So what can you do to protect yourself from such claims arising in your business?

Two key things to remember.  The increase in the qualifying period for unfair dismissal claims introduced on 6th April 2012 does not cover discrimination claims which can be brought from day one, or indeed even sooner (see below), and awards for discrimination claims are uncapped – so, potentially, the sky is the limit for a discrimination claimant seeking to claim compensation through the Employment Tribunal system.

From the moment you enter a potential employment situation with a prospective candidate, which means the moment a candidate becomes aware that you are seeking to employ someone, the potential for a discrimination claim arises.  The Equality Act, 2010 made it illegal for employers to assess medical information prior to selecting potential employees for employment on the basis that this could prove to be discriminatory, and only after a job offer is made should medical information be considered.  So, now that the green shoots are beginning to appear and you may be thinking about taking on more staff, how should you protect yourself?

  • Make sure that you do not issue a medical questionnaire with an application form or ask any questions in an application form or interview about a candidate’s health that are not directly related to the role for which you are interviewing.
  • If you think a medical question is justified during the interview process, then word it in such a way that invites the candidate to volunteer information rather than you demanding information from them.  For example ‘is there anything that you feel might impact on your ability to carry out the duties required of this role that you think we should be aware of?’ is a good question!
  • Once you have selected a candidate, ensure that your job offer is made subject to references and satisfactory medical checks being carried out.
  • Ensure that any medical questions asked are relevant to the role, and if possible get an Occupational Health report prior to the commencement date.
  • Make sure that if there are medical conditions thrown up by the process, that you are concerned only with those that might have an impact on the individual’s ability to carry out the role they are required to do.
  • Examine what reasonable adjustments you might be able to make to accommodate a disability, and make sure you are able to demonstrate the adjustments you have considered before taking any decisions.

Only if you have done all these things and find that there are capability issues that prevent the individual from being able to carry out the role to an acceptable standard should you consider withdrawing the employment offer or dismissing the employee.

For guidelines on recruitment best practice or advice on managing disabled employees contact jenny@jsconsult.co.uk or visit our website www.jsconsult.co.uk


Tip:        Make sure your equal opportunities policy and procedure is in place and up to date reflecting the provisions of the Equality Act 2010.  If you’re not sure, contact us on 01462 433033 and we will arrange to do a free review for you.

Other changes due from April 1

Statutory Sick Pay (SSP) increases from £81.60 to £85.85 pw

Statutory Maternity Pay (SMP)  Statutory Paternity Pay (SPP) and Statutory Adoption Pay (SAP) increases from £128.73 to £135.45 pw

Lower earnings limit to qualify for these payments is also increased from £102 pw to £107.

Early warning:  Statutory Minimum Wage to increase to £6.19 per hour (over 21) from October 2012

For more info on the above or to register for our free HR Healthcheck go to www.jsconsult.com/hot/topics  .    If you have a burning question or want to discuss a particular issue you have in your business contact jenny@jsconsult.co.uk to arrange for your free consultation call.