Employing disabled employees
Professor Diana Kloss
barrister
What is a disability?
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Relevant to welfare benefits
Work Capability Assessment (ESA)
Disability Living Allowance (PIP)
Industrial injuries disablement benefit (IIDB)
• Disabled parking badge (Blue badge)
• Equality Act 2010
Equality Act 2010
• Disability is a protected characteristic (along with
age, sex, pregnancy, gender reassignment,
marriage and civil partnership, sexual orientation,
race, religion or belief)
• That means that an employer must not
discriminate on grounds of a protected
characteristic against workers or job applicants
• A claim of unlawful discrimination can be made
to an employment tribunal
Definition of disability
• A physical or mental impairment
• That is long term (has already or is likely to
last for at least 12 months) and
• Has a substantial adverse effect on
• Normal day to day activities
• Cancer, HIV and MS are disabilities from
diagnosis
What is an impairment?
• A genetic defect is not an impairment until some
symptoms appear
• Obesity is not an impairment by itself, but may be
if it has substantial adverse effects
• Walker v Sita (2013)
• A mental impairment does not have to be a
recognised mental illness
• J v DLA Piper (2010)
• Hypertension/hypotension??
Normal day to day activities
• These may be work activities if they are things which
are not exclusive to work
• Eg writing, reading, walking, climbing stairs
• Ring case (ECJ) (2013)
• Adopts biopsychosocial definition of disability ie
concentrates not so much on degree of impairment as
on whether the person is hindered in professional life,
based on the UN Convention on Persons with
Disabilities
• Stigma is as important as functional incapacity
• The condition is assessed without medication,
prosthesis or other aid, eg diabetes without
insulin, deafness without a hearing aid,
impaired sight without a guide dog
• A recurrent condition is assessed as long term
even though there are breaks where
symptoms improve eg depression, bipolar
disorder, arthritis
• The question is whether the symptoms are
‘likely’ to recur
• SCA v Boyle (2009)
Progressive conditions
• These are disabilities as soon as the condition
has some effect on normal day to day
activities, even if not yet substantial, as long
as that is likely to worsen over time
• Eg muscular dystrophy, dementia, motor
neurone disease
Past disability
• Discrimination against someone who had a
disability in the past but is now completely
well is unlawful
• Eg refusing to promote someone who suffered
from cancer five years ago but is now clear
because of a fear that the cancer may recur
Severe disfigurements
• These are disabilities even if they do not
interfere with normal day to day activities
• Except if self-inflicted eg tattoos, piercings
• Addiction to a substance is not a protected
disability, though the effects of it may be, eg
cirrhosis of the liver, psychosis induced by
drugs
Who decides?
• Whether someone has a disability is a legal,
not a medical, question
• Abadeh v BT (2001)
• Gallop v Newport Council (2013)
Jane, aged 25
• She is a machine operator on shift work in a
factory
• She has epilepsy and had a few fits in her
childhood, though her condition is now well
controlled with drugs
• Is she disabled?
Rukshana, aged 43
• She applies for a job as a care assistant in a
residential home for the elderly
• She tells the employer that she has not
worked for the past six months because she
has been having treatment for breast cancer,
but her specialist says the prognosis is good
• Is she disabled?
Mike, aged 55
• He is a senior manager in a chemical factory
with considerable responsibility
• He has been off work sick for nine months
with depression after his son was killed in an
accident
• He hopes to come back to work, though still
taking anti-depressants and seeing a
counsellor
• Is he disabled?
Hussein, aged 32
• He works as a production worker in a factory.
He suffers from asthma which means that he
has regular absences from work lasting several
days especially in the winter. Last year, which
was particularly bad, he was absent for about
20% of his working time.
• Is he disabled?
• Whiteley v HMRC (2013)
Samantha, aged 48
• She works as a police officer in the uniform
branch She is going through the menopause
and has recently put on a lot of weight She
finds it more difficult to walk and run than
before She has high blood pressure for which
she has been prescribed drugs
• Is she disabled?