CIPD - Disability and employment

Diversity and equality

Originally issued in October 1999; latest revision December 2007

This factsheet gives introductory guidance. It:

outlines the legal background to disability discrimination
provides some key facts and figures
sets out an action plan for employers
highlights key factors in terms of employment practice
sets out an action plan for employers
includes the CIPD viewpoint.

Employers and managers can be nervous about addressing the issue of disability, often because they are concerned either about costs or because they fear causing offence. All employers have to comply with this Act.

The legal position

The Disability Discrimination Act 1995 (DDA) is the main piece of legislation which makes it unlawful to discriminate against a disabled person in their terms of employment, promotion opportunities, by dismissing them or by subjecting them to any other detriment.

In addition there are various statutes and regulations covering disability, including:

The Disability Discrimination (Meaning of Disability) Regulations 1996 (SI 1996/1455)
Disability Rights Commission Act 1999
The Disability Discrimination (Blind and Partially Sighted Persons) Regulations 2003 (SI 2003/712)
The Disability Discrimination Act 1995 (Amendment) Regulations 2003 (SI 2003/1673)
The Disability Discrimination Act 2005
The Disability Discrimination (Guidance on the Definition of Disability) Appointed Day Order 2006 (SI 2006/1005)
The Disability Discrimination Code of Practice (Services, Public Functions, Private Clubs and Premises) (Appointed Day) Order 2006 (SI 2006/1967.

On rare occasions additional legislation may be used: for example, the Protection from Harassment Act 1997 has been used in connection with other forms of discrimination and may be used in appropriate cases of disability discrimination.

Additionally, case law continues to develop and employers need to watch out for new thinking. CIPD members can find out more on the legal aspects of this topic and specific examples of disability-related issues which may arise in the workplace from our Disability discrimination FAQ in the Employment Law at Work area of our website.

Go to our Disability discrimination FAQ

The DDA defines disability for the purposes of the Act: 'There must be a mental or physical condition which has a substantial and long-term adverse affect on the employee's ability to carry out normal day-to-day activities. Long-term means that the condition must last, or be likely to last, for more than 12 months. The applicant's ability to carry out normal day-to-day activities can be adversely affected in one or more of the following ways:

mobility
manual dexterity
physical co-ordination
ability to lift or otherwise move everyday objects
speech, hearing or eyesight
memory or ability to concentrate, learn or understand
understanding the risk of physical danger.'

Under the DDA it is unlawful for an employer (or prospective employer) to:

discriminate against a disabled person in employment
fail to provide any necessary reasonable adjustments for disabled employees and applicants
subject a disabled person to harassment
subject a disabled person to victimisation because they have brought, or given evidence to information in connection with, proceedings under the DDA
undertake disability-related discrimination.

Various Codes of Practice issued under the DDA are available on the Equality and Human Rights Commission’s website (see Useful contacts section below). These are important when considering matters relating to disability and employment and they will be taken into account by courts and tribunals where relevant.

Development of the DDA

Enforcement of the DDA has been through a gradual process of evolution.

The Disability Discrimination Act 1995 (Amendment) Regulations 2003 came into force in October 2004 and introduced certain key amendments to the DDA, including:

Removal of the small business exemption for employers with fewer than 15 employees.
Extension of protection to certain categories of employment.
Requiring the employee to establish facts from which it may be presumed that discrimination has taken place, after which the burden of proof is placed on the employer to establish that there has been no discrimination.
Specific prohibition of harassment based on disability.
Removal of the justification defence in direct discrimination cases where the reason for that treatment is based merely on the fact that the person has a disability rather than on a consideration of the individual's abilities.
Extension of protection in certain circumstances beyond the end of the employment relationship from acts of discrimination (including harassment).
Removal of the justification defence in respect of a failure to make reasonable adjustments.

The Disability Discrimination Act 2005 was related to disability generally and extended outside the area of employment, although some provisions do affect employers and employees:

Extension of the definition of disability to cover persons with progressive conditions such as HIV, multiple sclerosis and cancer.
People with mental illness are protected in the same way as everyone else by removing the requirement that their illness be clinically recognised.
Publishers are now liable for publishing discriminatory advertisements.

Other provisions of the 2005 Act relating to areas largely outside that of employment, such as transport, came into force in December 2006. The general Disability Equality Duty (DED) also came into force on 4 December 2006, together with some specific duties, as a result of the remaining provisions of the 2005 Act. All public authorities have to comply with these duties which includes publishing their Disability Equality Scheme.

A few facts and figures

The following facts and figures are compiled from various sources, including the Institute for Public Policy Research, Mind, and the Shaw Trust.

Only 17% of disabled people were born with their disabilities.
One in four people will be affected by mental ill health in the course of their life.
Mental health problems, such as depression and anxiety, now account for more Incapacity Benefit claims than back pain.
One in four men and one in five women will suffer a critical illness before they are 65.
Nearly one in five people of working age (6.9 million, or 19%) in Great Britain are disabled.
Only about half of disabled people of working age are in work (50%), compared with 80% of non disabled people of working age.
There are currently 1.2 million disabled people in the UK who are available for and want to work.
Employment rates vary greatly according to the type of impairment a person has.
Disabled people with mental health problems have the lowest employment rates of all impairment categories at only 21%. The employment rate for people with learning disabilities is 26%.

Recommendations for employers

When addressing issues of disability it is important to understand a few basic principles:

Disability is not solely about wheelchairs.
Many of those who are disabled have ‘invisible’ disabilities – employers should not just consider the visible.
Quite a lot of people do not consider they are disabled and may not wish to be treated differently – even if they are protected by the law.
Many disabled people as a result of this prefer not to disclose their disability because of a fear of being labelled – this can make monitoring difficult.
Quite a lot of people become disabled while they are at work and reasonable adjustments should be made as far as possible for existing staff. It’s not just about accommodating new employees.

An action plan

It is essential that employers have in place an action plan. This is not only important in helping to meet the legal duties, but should be a core element of the organisation’s business approach to diversity and inclusion. CIPD have clearly demonstrated a business case for diversity and our research has established that tackling discrimination and changing attitudes and behaviours in the workplace have direct links to improved business performance¹.

An action plan could include the following:

Conduct a review of all employment policies and practices to determine how they are affected by the provisions of the DDA.
Make sure that the employment and retention of people with disabilities is an integral part of the organisation’s diversity and inclusion policies and practices.
Get senior management backing and support.
Explain the concepts of ‘reasonable adjustment’ and ‘justifiable’ discrimination and the importance of flexibility in working practices and general policies.
Put in place training programmes to raise the awareness of disability and make sure all staff are fully informed and know about their personal responsibilities in ensuring unfair discrimination does not occur. (The hardest thing to change can be the attitudes of fellow employees.)
Ensure all managers have been trained to have a clear understanding of their role and responsibilities.
Make sure managers understand that they should not require higher standards of performance and conduct of a person with a disability than they would of any other employee.
Ensure the working environment does not prevent people with disabilities from taking up positions for which they are qualified.
Always take steps to ensure that people with disabilities have fair chances to develop their potential and compete.
Support employees who become disabled by offering leave for adjustment to the disability and consult them and other relevant specialists to identify their needs in the workplace.
Recognise and respond to people with disabilities as customers, suppliers, shareholders and members of the community at large.
Ensure the marketing department is aware of the numbers of potential disabled customers and that all parts of the organisation, services and products are appraised to improve accessibility to disabled people in practical ways.
Put in place mechanisms to ensure suppliers and contractors are aware of your organisation’s approach to disability and that they understand how discrimination occurs and how it can be avoided.
Encourage the participation of disabled people in implementing policy through regular consultation and ensure that, wherever possible, practices and procedures meet their needs.
Monitor, review and benchmark good practice performance by conducting regular audits for consideration at senior level and publish the objectives, progress and achievements for the benefit of all stakeholders.

There is a lot of help and advice for employers on disability issues which employers are advised to use. In addition to the Codes of Practice mentioned above, most of the major national charities (such as the RNIB or RNID) can signpost or provide advice about different conditions and the appropriate response and practical adjustments. Advice is also available from the Disability Services Team Representative at local job centres and from Remploy.

Recruitment

A CIPD survey² found that to reflect good practice in the employment of people with disabilities, employers should undertake the following key steps from recruitment stages through to their general employment practices.

Ensure that the organisation’s recruitment policy and practice is reviewed so that all recruiting personnel, consultants and others are aware of the commitment.
Work with partners – perhaps local or national charities, government agencies or the local authority – to maximise awareness amongst the disabled community and consult people with disabilities to find out about the effects of their disability and job requirements.
Make sure that advertisements, job descriptions and person specifications (and any supporting literature) positively encourage rather than discourage applications from people with disabilities.
Guard against the inappropriate use of medical checks and information for people with disabilities (although recent case law suggests employers should actively confirm the position where the relevant health section of an application form is not completed).
Take care to ensure that people with disabilities are given the right conditions to do tests and take part in other selection processes.
Ask candidates before interviews if they have specific requirements and make necessary reasonable adjustments in advance, for instance more time to complete an interview, test etc. Think not only about access to the recruitment venue, but whether the time of day is suitable.
Concentrate on abilities to do the job during interview and only ask about a disability if it has a bearing on the person’s ability to work.
Consider modifications to job qualification requirements if a person could not achieve that qualification due to disability, but otherwise has the potential to perform the job well.

Many employers have signed up to the Government’s ‘two tick’ symbol provided by Job Centre Plus which promotes a high standard of practice and guarantees an interview to disabled candidates.

CIPD viewpoint

CIPD believes the DDA is an important lever for change and an impetus for improving good practice. Employers should be rigorous in their approach to designing solutions to meet needs of business and individuals and should not be easily put-off by the perception of difficulties.

CIPD believes it is crucially important to value all people as individuals and to concentrate on personal abilities and strengths in order to ensure organisations gain from diversity. Having a disability does not automatically stop an individual from being the best person for the job and disabled customers, as well as their families, friends and relatives, exercise choice about spending their money. It therefore makes sound employment and economic sense for employers and service providers to capture the contributions of people with disabilities both as employees and customers. Evidence shows that there are not necessarily additional costs involved in taking action to do this. There are in fact advantages in terms of tapping skills and talent and the potential for growth in markets and improved customer satisfaction.

Useful contacts

References

Details of our research into diversity issues can be found on our website at http://www.cipd.co.uk/research/_divarw.htm
CHARTERED INSTITUTE OF PERSONNEL AND DEVELOPMENT. (2001) Adapting to disability: it wasn’t so difficult after all. Change agenda. London: CIPD.

Disability and employment