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As an employer, your duties at work towards those with disabilities begins before their employment. Among other obligations, you must treat disabled applicants fairly. Understanding these legal obligations is critical to avoid a claim for disability discrimination at an employment tribunal. This article will explain what you as an employer ought to know about disabilities when recruiting staff in England.
What is a Disability?
A disability can be a physical or a mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. Long-term means that the impairment will affect the person for at least 12 months of their life. However, the law recognises certain conditions as disabilities regardless of how long an individual may be affected by it, including:
- cancer;
- multiple sclerosis; and
- HIV/AIDS.
Unlawful Discrimination
The law treats a disability as a protected characteristic. Therefore, you must not discriminate against individuals applying to work for your business on the basis that they have a disability. This means that your recruitment process cannot produce an unfavourable outcome for an applicant with a disability because of their disability — whether directly or indirectly. If your recruitment process does result in an unfavourable outcome arising from their disability, the law may conclude you have engaged in unlawful discrimination.
Unlawful discrimination can take various forms, such as:
|
Direct discrimination |
Where you treat an applicant with a disability less favourably than another because they have a disability.
For instance, you expressly state that those with attention deficit disorder (ADD) cannot apply for a position. |
|
Indirect discrimination |
Where a hiring policy has the effect of disadvantaging those with a disability regardless of the policy’s intent.
For example, your business requires all applicants to pass an online test. Unbeknownst to you, the test makers inadvertently formatted the test so that those with colour blindness automatically fail. |
|
Victimisation |
Where your hiring policies negatively affect disabled applicants that have initiated certain protected acts. Protected acts include disabled applicants initiating discrimination claims or raising a complaint. |
|
Harassment |
Where your hiring policies violate a disabled applicant’s dignity or creates an intimidating, hostile, or degrading environment. |
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Reasonable Adjustments
If a job candidate reveals that they have a disability, you are required by law to make any reasonable adjustment necessary to your selection process. This ensures that they are not disadvantaged due to their disability. Your business might, for example:
- provide a ramp to the building where you are interviewing the job applicant with a disability so they can access it early; or
- provide the job information in Braille for a person with a visual disability.
What is reasonable to you may be different to another business. To determine what is reasonable, consider:
- the cost of the adjustment;
- how effective the adjustment will be;
- how easy it is for you to make the adjustment; and
- the length of time the adjustment will take to carry out.
What Are an Employer’s Other Legal Duties Regarding Disabilities When Recruiting?
When you are recruiting, you have two other legal duties you must familiarise yourself with to avoid unlawfully discriminating against disabled applicants. These are listed below:
Rules Regarding Pre-Employment Medical Questionnaires
Generally, you must not issue any applicants with a pre-employment medical questionnaire that asks health-related questions to those applying for the job. This is especially the case if you know or suspect an applicant may have a disability. However, there are certain health-related questions that you can ask a job applicant. These include questions that:
- help you decide if you need to make reasonable adjustments for the selection process, including the interview;
- are for diversity monitoring;
- are necessary to determine if an applicant can carry out a vital part of the job role;
- are to determine if an applicant has a disability where the position requires the job holder to have one;
- positively helps you recruit people with a disability; or
- are because national security checks require you to ask them.
In most cases, the applicant is not obligated to answer the questions.
Conducting a Fair Recruitment Process
When recruiting staff for your business, you must ensure that your recruitment process is fair. This means that all candidates must have an equal opportunity. Some of the ways you can ensure you have a fair process include:
- not using language in job adverts that could relate to impairments such as requiring a ‘strong person’ for the role;
- having more than one interviewer to help eliminate any bias; and
- selecting candidates based on factors necessary for the role rather than irrelevant factors.
Further Practical Considerations
There are other steps that, while not legally required, you may wish to consider. These steps may ensure that you do not face any unlawful discrimination claims in the future, as well as foster a more diverse workplace.
For instance:
- State in your recruitment advert that you strive towards a diverse workforce — this is beneficial in employment.
- Point out in your ad that people with disabilities are welcome in your business.
- Adopt a guaranteed interview scheme for people with a disability where they meet the essential requirements of the roles.
- Have disabled employees sit on the interview panel to inspire the confidence of disabled applicants.
Key Takeaways
As an employer, you need to be aware of your obligations towards those with a disability as soon as you begin any recruitment process. Not carrying out your duties can result in disabled applicants initiating a discrimination claim against your business. You must also make reasonable adjustments during the selection process where you suspect that the person has a disability. There are also best practices your business can adopt during the recruitment process. For example, you can state in the recruitment advert that your business encourages applications from people with disabilities.
If you need help understanding your employment obligations regarding workers with disabilities, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
A disability is a physical or mental impairment that has ‘a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities’. Certain illnesses are also automatically considered a disability, such as cancer or HIV/AIDS.
Employment laws protect disabled applicants as well as disabled employees. Therefore, as an employer, you must be aware of your duties and responsibilities during the recruitment process, such as making reasonable adjustments throughout.
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