Health and safety laws must never be used to compromise the employment of disabled workers. Quite the opposite. The support available to employers and employees can help to create both an efficient working environment and rewarding employment opportunities, argues Jon Herbert.

There are currently some 13.9 million disabled people in the UK, according to a 2017 Labour Force Survey carried out by Scope. Around 3.4 million are in employment, where they represent 19% of the national workforce.

In fact, an estimated 10% increase in the employment rate of disabled adults could potentially add an extra £12 billion to the Exchequer by 2030, says the charity, whose key aim is to ensure that the UK is a country where disabled people are guaranteed the same opportunities as everyone else.

The Health and Safety Executive (HSE) makes clear that health and safety law does not, and cannot, be used to prevent disabled people from finding and staying in employment; it must also never be a false pretext to justify discrimination.

On the contrary, says the HSE, which also believes that many employers may not be aware that some of their best employees are probably disabled, but choose to keep this information to themselves. Employees often only reveal their issues if they feel they need help or would like reasonable workplace adjustments made to improve performance.

Dispelling myths

The HSE adds that it is important to remember that, first, no two disabilities are exactly the same, and second, disabilities can develop at any point during an ordinary working career.

It goes further to dispel a number of common myths regarding disability and employment. One major misconception it wants to eliminate is that employing disabled workers is expensive or difficult.

Many people with disabilities do not need additional help. Employers have duties to make reasonable adjustments to stop these workers from being disadvantaged if they are aware of the disability. However, these adjustments can be simple and straightforward. An example often cited is installing a ramp for wheelchair-users or making provision for them to work at ground floor level. The Government’s Access to Work programme can provide support and funding.

Another myth is that disabled people must be registered to have the workplace adjustments they need. Again, not true says the HSE. Employers and employees working together closely to identify the most suitable adjustment solutions is the recommended way forward.

Everyone then wins. Employees enjoy a more supportive working environment and employers benefit from the experience of often very talented workers.

What the law says

The Health and Safety at Work, etc Act 1974 (HSWA) requires employers to protect all workers — plus those affected by their work — from risk of injury or harm as far as reasonably practicable.

The Equality Act 2010 introduced a modern, single legal framework to end disadvantage and discrimination, making these things unlawful where an employer knows, or could reasonably be expected to know, that an employee has a disability.

The Equality Act 2010 defines disability as a physical or mental impairment with a substantial and long-term negative effect on someone’s ability to perform normal daily activities. Substantial here means more than minor or trivial, eg taking much longer than usually to complete a daily task such as dressing. Long-term means 12 months or more, such as a breathing condition that develops following a lung infection. There are also special rules for recurring or fluctuating conditions such as arthritis.

Equality law recognises that equality for disabled people often means changing how employment is structured, removing physical barriers and/or providing extra support.

The public sector equality duty covered by s.149 of the Equality Act 2010 specifies how people will be treated by public authorities and insists they “deliver policies and services which are efficient and effective, accessible to all, and which meet different people’s needs”.

That means using “robust health and safety management” to eliminate “unlawful discrimination, harassment, victimisation” or other prohibited conduct, advancing equality of opportunity between people covered and not covered by the Act, and similarly fostering good relations.

Employer guidance

The law makes employers responsible for the health, safety and welfare of all employees, with disabilities or not. It is often not possible to know if a staff member or external worker has a disability; some people prefer not say, particularly if they feel it could affect how they are treated at work.

Employers have a duty to consult employees, or their representatives, on health and safety-related issues because with hands-on daily experience they often have valuable ideas about how to change things for the better.

Specific and separate risk assessments are not necessary, although reviewing disabled worker and visitor needs is good policy. Avoid making assumptions or introducing blanket policies.

One example might be thinking that a driver who loses an arm cannot drive, when in fact steering wheels can be modified or replaced by a joystick. Similarly, a deaf person can be warned of fires by flashing lights. Assuming employees with mental health conditions cannot do demanding jobs is also wrong if risks are managed and support is offered to prevent their roles becoming stressful.

Banning all people with certain conditions from particular tasks is also not allowed; symptoms and the severity of symptoms differ greatly from person to person. The advice here is to consider how the condition actually affects their ability to carry out a task. If support needed is delayed, it might be necessary to implement temporary arrangements.

Involving disability employment advisors and medical professionals can be helpful, but employee consent is needed before specialists or doctors can be approached. Disabled workers should also be involved in this process; any specialist information provided must be shared with them.

Employee guidance

Employees must take reasonable care of their own health and safety and that of anyone who might be affected by what they do. They must also co-operate with their employer on health and safety issues, which includes listening carefully, following instructions and training, and using any safety equipment provided. Employees must inform their employer or manager if they see something that might harm them or anyone else.

Disclosing disabilities is a personal decision, but it might be important to consider that an employer who doesn’t know about a disability — including mental health conditions — may not be able to take the steps needed to protect an employee from harm.

Snapshot

• It is illegal to discriminate against workers on the basis of any known or supposed disability.
• Employees are under no legal obligation to declare a disability, nor does their disability need to be registered.
• Employers are encouraged to recognise the value and potential of disabled workers.
• It is often inexpensive, simple and straightforward to make the reasonable workplace adjustments to which disabled people are legally entitled.
• Employees are required to co-operate with employers on health and safety issues.
• It is permissible and often advisable to suggest that a specialist, including a GP, is invited to take part in any workplace adjustments discussion and decision, but only with the employee’s express permission.
• Your Croner-i offers a model Disabled Workers Policy and Disabled Workers Access Audit Policy.

Case studies: reasonable adjustments

Machine operator A machine operator on shift work developed epilepsy. Her employer was concerned this might increase the employee’s risk of personal injury, or that of others. With her consent, a GP was involved, who found that she was more likely to have seizures if sleep patterns were disrupted. A move to day shifts with regular work patterns improved the management of her condition. See www.epilepsy.org.uk. Fire fighter A fire fighter who developed insulin-dependent diabetes was seen by an occupational health doctor who helped to make arrangements for him to return to work. Once the employee showed he was managing his diabetes, he was tested carefully on key tasks such as using breathing apparatus to check there were no safety issues. Blood tests confirmed his sugar levels were stable and he was no more at risk of collapsing than other fire fighters. However, he returned to work with three reasonable adjustments: restrictions on the emergency vehicles he could drive; regular checks by the work health service; and the provision of a fridge to store insulin. See www.gov.uk. IT worker An IT worker with mental health problems was ready to return to work after being off sick. The employer provided support in managing and avoiding work-related stress by helping the employee to speak openly, so they could co-operate on making adjustments ensuring the employee’s wellbeing. They agreed the employee would work a three-day week until ready to return full time. Arrangements were also made for colleagues and supervisors to attend mental health awareness training. Office worker An office worker who suffered recent sight loss wanted to remain in work. The employer arranged for an occupational health assessment to assess the employee’s ability to carry out the tasks needed. The assessment, together with discussions with their line manager, resulted in appropriate adjustments that included: a large screen monitor and magnification software; changes to the workplace layout; more accessible instruction manuals; and the passing on of certain duties to another colleague. See www.rnib.org.uk. Further useful advice is available at www.gov.uk.

Published by Croneri on 6 June 2018