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A. Potentially yes. In some cases, deciding whether a condition counts as a disability might not be straightforward. That’s why there’s a law in place to offer some kind of criteria. Under the Equality Act 2010, a person is considered to have a disability if they have:
“a physical or mental impairment, which has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities”
To be clear, a “substantial” effect generally means any case where someone has difficulty carrying out what we might consider a normal, basic activity to the point where it affects their quality of life. In January 2024, the definition of a disability by law changed slightly to offer more clarity around what could count as a “normal day-to-day activity”.
The law now confirms that this also includes a person’s ability to participate fully and effectively in their working life, and to be on equal footing with their colleagues.
Ultimately, you have to communicate with your employee to understand how best to support them. Everyone is different and you should never make an assumption or apply a one-size-fits-all approach. It’s important to speak openly with your employee.
Find out what kind of support they feel they need (if they need any) and if they have any specific requests. This should always inform your next steps. And once you have taken steps and added new measures, make sure to regularly review them.
Keep checking in with your employee to see how they’re feeling and whether you need to make any more changes based on their feedback.
If an employer identifies or is made aware of a necessary adjustment and doesn’t act, this is known as a ‘failure to make reasonable adjustments’.
By law, an employer must make reasonable adjustments if they know, or could be reasonably expected to know, that someone is disabled. What is reasonable depends on a number of factors, including the resources available to the organisation making the adjustment.
An occupational health referral report may help the employer establish which adjustments would be reasonable. An employer may also request a GP report from the employee, which the employee may choose to supply to the employer but there is no legal requirement for them to do so.
Failure to implement an adjustment that was recommended on a GP report or OH referral would not be recommended unless the employer can demonstrate that the adjustment is genuinely unreasonable.
If a disabled employee remains at a disadvantage, they could claim discrimination and unlike some claims, there is no maximum amount of compensation that could be awarded, this is because disability discrimination is always uncapped.
With this in mind, employers should keep a detailed record of any attempts to make or discuss adjustments and if necessary, keep the minutes of any meetings your client and the employee have had, in case they are needed later.