The Disability Discrimination Act 1995 aimed to prevent employers from acting unfairly towards staff with a disability, but does it work and has it created operational problems for business? Sarah Fletcher asked HR Zone members how to incorporate a disability into the workforce and whether discrimination is still a significant issue.

The DDA should prevent employers from hiring and firing due to disability, but does the risk of legal action encourage companies to see this group as a potential legal nightmare? Bela Gore, head of legal policy and information at the Employer’s Forum on Disability, says “I certainly see no evidence” that the DDA has made employers more reluctant to hire disabled candidates; yet according to HR Zone members the Act has hardly made huge leaps in bringing disabled employees into the workforce.

Only around half of disabled individuals of working age are employed, compared with 80 per cent of non disabled people, the Office for National Statistics reported last year. As almost 45 per cent of disabled Europeans say they would work if employers made the necessary adjustments to create a user-friendly environment, are UK organisations failing to create a suitable workplace and keeping disabled people unemployed?

Recruitment – a legal minefield?

It is notoriously difficult to prove that a candidate has not been successful at the recruitment stage because of a disability. Gore says an employer will always claim the job has been given to a candidate with more experience rather than due to prejudice against the applicant’s disability; but the DDA gives an individual the opportunity to make the employer justify the decision.

The questionnaire sent to the employer asks specific questions about the successful candidate’s qualities and experience, so if the disabled applicant is equally or more suitable for the role, a complaint can be brought to a tribunal. The employer has 28 days to reply and the injured party must present their grievance to a tribunal within three months.

Does this legislation deter employers from hiring a disabled applicant? Fiona Fritz, HR coordinator of Grampian Country Pork, advises organisations to be cautious in light of the potential legal consequences:

“If the reason [for not hiring a disabled candidate] is simply that they were not the best candidate for the job then there should really be no debate. However, this is a very emotive and newsworthy area of employment law; companies would be well advised to be cautious and ensure that if they choose not to employ, [then that decision] can be justified.”

Employers are also warned against applying a policy of positive discrimination towards disabled applicants in an attempt to prevent claims under the DDA. “It would cause resentment,” says Janet Donovan, head of HR at the Retail Trust. “If we were to positively discriminate in favour of people with disabilities we would surely be accused of discriminating against some other group of candidates.”

The same caution towards proving the business case should be applied if firing a disabled employee, says Fritz: “I don’t believe that legislation will stop you firing in the end, but the disciplinary process must be followed as with anybody else. But, once again, companies should make sure that all decisions can be backed up, and more importantly make sure that they really have done everything they can,” she comments.

How to recruit successfully and avoid a legal claim

Consultant Mike Morrison argues that if disabled workers cannot do the job competently the organisation’s recruitment process is at fault: “[If] you have assessed them capable but [they] cannot perform [to the standard required by the job] then this is a normal performance issue. What it does mean, however, is that organisations have got to start taking recruitment more seriously. Many organisations only find out if someone can do the job when they are in it.”

Gore agrees that employers should be fully aware of what they require from the role before hiring a candidate that may be unable to cope with its demands: “If the candidate is not suitable for the role, it’s for the employer to ensure their recruitment processes are really robust… They must ensure they have really thought about what the job involves.”

However, Gore admits this is “very tricky territory” as asking about disabilities can be a sensitive issue: “We don’t recommend employers ask if [candidates] have a disability, but rather ask about the requirements of the job,” she says. For example, if recruiting a secretary, the company is advised to ask if the candidate can produce accurate word processed reports rather than whether they can type at a rate of 80 words per minute.

If an organisation hires a disabled applicant that is unable to perform well, the employer should not then fire them, argues Lynn Hebb, HR manager at risk management specialists Strategic Thought: “We wouldn’t sack them for the disablement impairing their ability to do the job as we should have made a good assessment of whether it was possible before we recruited them.”

Addressing performance issues

If an employee finds their disability makes them unable to carry out the tasks required of the job, will an organisation be hit with a claim for discrimination if they fire the worker? According to Gore, the onus is on the employer to make “reasonable adjustments” to the workplace to assist disabled staff to fulfil their responsibilities. However, Donovan disagrees and argues that the employee must admit at the recruitment stage if they will be unable to perform satisfactorily:

“This is where the importance of an accurate job description and specification come into play – if someone signs a contract agreeing to carry out the duties and meet the targets described and then finds that they cannot fulfil their obligation – if the necessary adjustments have been made in accordance with their disability requirements, what could be the argument against disciplining them as you would any other employee?”

Sue Morrison, HR director of Battersea Dogs Home, says the employer’s duty to make provisions for the disabled worker can only extend so far: “With regard to the capability of the individual in the post, normal rules apply – if we have made suitable adaptations, given appropriate (and further where needed) training and if the capability process is properly followed, then I do not feel we would be uncomfortable about dealing with a disabled employee [as we would] an able bodied employee. Personally, I think it insulting to an individual to set them up and continue to let them fail for fear of retribution!”

A candidate’s disability could be the deciding factor over whether they are hired. If the role requires activities that the applicant’s disability would make impossible, it is simply not feasible to employ them. For example, Donovan says this is reasonable “If the job included physical activities which the candidate was not capable of carrying out or if it were a telephone job and the candidate could not make themselves clearly understood on the telephone.”

Costs

An organisation must consider the likely cost of making the workplace and job role appropriate for a disabled applicant as this may be a strong business case against hiring them: “This has to be assessed at the interview stage and an open discussion must take place – some candidates may wish to meet the cost of the special equipment that they need, but otherwise the cost implications could very well be a balanced business reason for rejecting a disabled candidate,” says Donovan.

The cost of making the workplace and role disability-friendly will vary between organisations and depending upon the needs of the individual employee, but the government offers companies financial support through its Access to Work programme.

The business needs to consider whether it can afford the added costs of adjusting the workplace for a disabled employee. “You may have to make allowances for extra time taken in completing tasks, which in turn could mean employing more than one person for the job. The business has to decide if it can support that,” comments Fritz.

Hebb agrees: “If a disabled person came to us but could get to client sites independently, then the cost of any adaptations may be balanced by the enhancement of our staff base and possibly the likelihood that if we treated them well they would be less likely to leave. [If this were the case] we would get good value from them. However, we couldn’t employ an extra person to help escort a disabled person to a client site; our margins are just too tight.”

Risk assessment

The likely costs of employing a disabled candidate can be judged by carrying out a risk assessment on the applicant. This will determine the level of support and adjustments the employee would need to perform satisfactorily in the role and what safety precautions should be taken. Jones says this process is necessary, despite the risk of making the worker feel ‘different’ from able bodied staff: “Any person employed with a disability should have a separate risk assessment done to ensure that there are no additional risks associated with the task that a non-disabled person would have.

“The risk assessment, unless it is explained to the disabled employee – and to all other employees – might make them feel ‘different’, but really it is a process beneficial to both parties. For example a risk assessment might show the need to store files at a lower level to enable wheelchair access without the need to keep asking someone else to reach for the files. In a factory, a flashing light on a forklift truck passing by could trigger an epileptic fit in someone who suffers from epilepsy. [This is] easily solved by a slower pulsating light.”

Is business disability friendly, or just practising good PR?

Despite the optimism of HR professionals towards managing disability in the workplace, a recent report from the Employers’ Forum on Disability, Realising potential – Disability Confidence builds better business, suggests the marketplace as a whole is less positive. According to chief executive Susan Scott-Parker, 3.4 million disabled people remain out of work despite more than a third of UK businesses finding it difficult to fill vacancies.

Although it is illegal to discriminate against an individual because of their disability, employers are still being brought to tribunals accused of this. An asthma suffering bar worker was awarded £6,000 for disability discrimination and unfair dismissal in April and in June a woman was awarded £20,000 for being sacked after suffering a stroke.

These are only two examples of the discrimination that disabled employees can still suffer; although the DDA has done its job in making organisations accountable, it has not eradicated the problem entirely. But is this an unrealistic expectation? Should disabled workers be pleased that at least there is some – if not entirely successful – protection against discrimination?