Four years after legislation was introduced to outlaw disability discrimination in the workplace, the law remains a grey area for employers.
Lawyers say employers will continue to face difficulties until more cases are brought by the Disability Rights Commission to clarify the law. To date 18 cases have been brought, with only 13 relating to employment issues.
Selwyn Blyth, employment lawyer at Wragge & Co, urged employers not to become bogged down in definitions of what constitutes disability. Blyth said obtaining medical opinions about whether an employee is disabled or not can be time consuming and costly. ‘But ultimately the decision is the tribunal’s, and if they disagree, you have a problem.’
A better approach, he suggests, is to concentrate on the provisions of the Disability Discrimination Act 1995 that allow an employer to justify dismissal, having explored a range of possibilities to resolve the situation.
He said: ‘What an employer should be doing, for example with someone on long-term sick leave, is keep in contact and try and find a way of getting them back into work with perhaps a phased return or time off for counselling. If having tried that an employee cannot come back to work, an employer can claim justification.’
Blyth said employers tend to shy away from this course of action as they feel having to defend their action in public at a tribunal may expose them to unfair criticism. Rob McCreath, employment partner at law firm Eversheds, said he expected the number of cases taken by the commission to pick up over the next year, making it easier for employers to interpret the law. The commission came into being last April with the stated aim of helping employers meet their obligations under the Act.
McCreath said: ‘It is still a difficult area because it can be hard to get to the bottom of whether someone is suffering from a mental health-related disability and how far to go to accommodate it.’
The commission is preparing its first initiative to encourage employers to introduce policies benefiting the disabled.
The Actions Speak Louder Than Words campaign, due to be launched on December 11, will see high profile employers committing themselves to a series of pledges aimed at recruiting more disabled people.
Helen Rowe writes for Personnel Today.