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Summary: ACAS’s new disability discrimination guide

4 December 2015

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The conciliation service ACAS has launched a guide to help employers feel more confident about hiring people with disabilities.

The guide to disability discrimination is in line with a government campaign to try and increase the number of disabled people in work – which stands at around three million.

Data from the government’s Labour Force Survey indicates they make a positive contribution to the economy, and often do not want or need adjustments in their roles or the workplace.

Employees have a legal duty to make “reasonable adjustments” for employees with a disability. These may include changing their hours, shift pattern, or moving to flexible working, adjusting the furniture layout, or providing additional equipment where necessary – for example a laptop so they can work from home.

However, there may be times when the suggested changes are unreasonable, and the employer can legally refuse to make them, for example if they do not have the resources to pay for them or they have an adverse impact on the health and safety of others.

The new guidance from the Advisory, Conciliation and Arbitration Service (ACAS) applies to all ’employees’ including those with a contract to do work or provide services from an agency, those who are self-employed, as well as full-time contracted staff.

There are seven areas where disability discrimination is most likely to happen: recruitment, pay and terms of employment; sickness absence; promotion opportunities; training opportunities; dismissal, and redundancy.

While employers do not have to change the core functions of the advertised job, but cannot include wording in the job specification that would discourage a disabled person to apply, or reject disabled applicants because it would have to make ‘reasonable adjustments’.

ACAS has clarified that a person is disabled if they have a “physical or mental impairment” that has a “substantial and long-term (lasting for at least a year) adverse effect” on their “ability to carry out normal day to day activities”.

Also, disability-related sickness must be paid no less than their contractual sick pay, and it is good practice, though not a legal requirement, to have a policy on disability leave.

Withholding training due to disability is discriminatory, but people with a learning disability tend to learn differently so adjustments may be required, for example on-the-job learning rather than classroom learning.

It is illegal to dismiss a disabled employee due to symptoms related to their disability, because they are off sick due to their disability, or to avoid making adjustments. However, if these alterations have been made and the employee is incapable of doing their job, a dismissal may be justified.

This would depend on a variety of factors. These include the availability of lighter duties or a different role for the employee (though a new role does not have to be created). It also offers employers the ability to investigate if, for example, the employee has exceeded the agreed time limit of disability-related leave.

The report emphasises the need to manage the redundancy of a disabled person with clear communication about the process.

See the full guidance here.