The Disability Discrimination Act (DDA), which includes the obligation to make reasonable adjustments for disabled employees, now applies to almost every UK employer, regardless of size. It raises such considerations as: when does an illness become a disability, what constitutes a reasonable adjustment, and how can businesses effectively implement change?
Employers are facing new responsibilities for the well-being of their staff and a baffling array of terms and key issues to go with them. The result is a fresh focus on the needs of the individual, which in turn is bringing employers a new set of challenges.
At a recent seminar hosted by FirstAssist and Churchill, Minty & Friend, which discussed the implications of the DDA changes, Bela Gor, head of legal policy for the Employers Forum on Disability, explained that the DDA definition of disability is a physical or mental impairment that has a long term, substantial adverse effect on a person's ability to carry out normal day-to-day activities. The Act says normal day-to-day activities include sight and hearing, the ability to carry or lift objects, the ability to learn or concentrate and mobility issues. Employers need to think about how they can accommodate staff with disabilities and they need to think about it on an individual basis.
The Act also covers impairments that may be controlled by medication, such as diabetes or epilepsy. Employers also need to consider recurring problems such as some mental health conditions, and progressive diseases, such as some cancers or multiple sclerosis. It is important to remember that conditions that occurred in the past may still be covered. Bela Gor says, "Trying to work out whether or not an individual meets the legal definition of disability is usually a pointless exercise. Instead, employers should concentrate their resources on assessing the impact of the condition on the individual and making reasonable adjustments to enable that person to work effectively."
Illness or disability?
Philip Friend, partner and director of Churchill, Minty & Friend, says: "Thought has to be given to when a long term illness actually becomes a disability and what the employer is expected to do in terms of making a reasonable adjustment.
"One way to determine whether someone is likely to be disabled rather than sick is to introduce a list of standard questions. Does the person have a named condition? Is it likely to last longer than a year? Does the it have a substantial adverse effect? Does it interfere with normal day to day activity? If the answer to these questions is affirmative, they are likely to be covered by the DDA, and reasonable adjustments should be made."
Under the DDA an employer discriminates against a disabled person if they unjustifiably treat the disabled person less favourably for a reason related to their disability. Failure to make reasonable adjustments is also considered to be discrimination and should be at the forefront of employers' minds.
Gor stresses that blanket exclusion policies need to be reviewed, because they may amount to direct discrimination - an additional type of discrimination introduced in October 2004. Employers cannot justify direct discrimination.
She says: "Failure to make reasonable adjustments to premises, or practices and procedures that place a disabled person at a significant disadvantage, could be seen as discriminatory. Businesses should look at staff absences to identify potential indicators of a long-term sickness or possible disability.
Investigate why someone has a high absenteeism record. Reduce the risk of implementing a disciplinary process by understanding and addressing the issues."
Just be reasonable
The DDA covers all aspects of employment, including the work place, recruitment and training. It also covers promotion, transfer, retention, sickness absence policies, work benefits, harassment and dismissal.
Friend says, "What constitutes a reasonable step for an employer to make depends on the nature of the organisation, its size and resources. It also depends on the effect of the disability on the individual disabled person. Employers need to consider whether taking particular steps would overcome the difficulty and the extent to which it is practical to take those steps. Cost is a major factor, but government funding is available in certain circumstances, so undertaking some research could pay off.
If no attempt has been made to identify funding, it could also mean that a refusal to make an adjustment because of cost may not be accepted as justification. It is important to understand that anything which assists the disabled person to continue working could be considered as a reasonable adjustment."
Balancing the costs
Businesses are understandably worried about the cost of making reasonable adjustments, but this is something that needs to be dealt with sooner rather than later. Making adjustments is going to be considerably cheaper than facing legal action, and employers will have the additional benefits of recruiting and retaining good employees.
Gor explains that there are a wide range of modifications businesses can make to accommodate disabilities. "Reasonable adjustments can include something as simple as altering an individual's working hours, or allowing absences for treatment. Alternatively, people with disabilities may need to be transferred to a more suitable role."
When redeploying an employee, every endeavour should be made to keep the employee on the same grade and salary. It may, however, be necessary to reduce an employee's hours or move them to a job on a lower salary grade. There is nothing to prevent the employer from paying the salary for the grade or hours worked. However, employers may want to consider keeping the employee at the same salary, with an agreement that it will not rise until it is in line with other salaries at the same level.
Ultimately, employers need to look at their occupational health provision to ensure it goes hand in hand with the requirements of the changes to the DDA. The role of occupational health is to promote, protect and maintain the health and safety of employees. David Flower, group head of occupational health for Centrica plc says: "Occupational health can ensure a good fit between an individual and the job. It can advise on rehabilitation or placement in alternative work, where a person is unable to perform their normal job. Managers can also use it to ensure they understand the duties placed upon them by health legislation, such as the DDA."
The key to a successful occupational health solution is ensuring it fits the needs and values of the organisation. Once successfully implemented, occupational health can help employers identify disabilities and health issues at the recruitment stage. This allows organisations to prepare for the arrival of a new employee with special requirements.
Friend says: "Line managers are crucial and need to be aware. They need to be helped to understand the difference between illness and disability. They need to understand that they are responsible for ensuring that disability-related absence is managed appropriately. A close relationship with occupational health professionals is likely to avoid the risk of litigation."
Flower explains: "Occupational health has a real benefit in reducing the length of sickness absence and in reducing the number of employees leaving a company after long-term absence. Sickness absence is the sign of a potential problem, and employers need to act sooner rather than later in such cases."
Investing in wellness
There is a danger that companies may see occupational health as separate from their HR strategies. Chris Thomas, customers and people director for FirstAssist, suggests that occupational health is all about maximising the performance of people, and is therefore a critical part of a modern and progressive HR strategy.
He says: "Occupational health starts with having the right number of people, good job design and a safe place of work. Building on these simple basics with the right actions helps to establish a culture of well being, in which people feel able to talk about their health and seek health management expertise. With this background, it is possible to switch from a traditional occupational health regime to something much more proactive. The health and wellbeing of a company should be led from the top, with educated managers who understand health and disability issues.
"Absence is not always preventable, but with the right approach to HR an organisation will often be able to prevent ill health and respond immediately if, despite their actions, ill health occurs. By taking an intensive approach to any illness which shows the potential to become long term, organisations can vastly improve return to work times and therefore improve productivity. Businesses which deploy proactive health management will also benefit from access to expert support to help them attend to their statutory obligations.
"Effective health management protects employers by improving the health of their employees. A proactive approach to health management is instrumental in managing business performance, responding to health issues, and discharging statutory obligations under the DDA. Get it right and everybody benefits."
- Tim Ablett is managing director and chief executive of FirstAssist, Tel: 020 8652 1385, E-mail: firstname.lastname@example.org