Disability Discrimination and Recruitment

1
Disability Discrimination and Recruitment

• Kareena Prescott and Sarah Weaver

DWF Solicitors
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Introduction

• It is unlawful to discriminate against employees
  on the grounds of their disability
• Contract of service or of apprenticeship or a
  contract to personally execute any work or labour
• Unlimited awards of compensation

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Definition of Disability

• A person must have
• A physical or
• A mental impairment that has
• A substantial and
• Long term adverse effect on
• Their ability to carry out normal day to day
  activities

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Types of Discrimination

• Direct Discrimination
• Victimisation
• Harassment
• Failure to make reasonable adjustments
• Disability related discrimination

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Direct Discrimination

• A person directly discriminating against a
  disabled person if, on the grounds of the
  disabled persons disability he treats the
  disabled person less favourably than he treats or
  would treat a person not having that particular
  disability whose relevant circumstances,
  including his abilities, are the same as or not
  materially different from those of the disabled
  person.

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Disability Related Discrimination

• A person discriminates against a disabled person
  if, for a reason which relates to the disabled
  persons disability, he treats him less
  favourably than he treats or would treat others
  to whom that reason does not or would not apply
  and he can show that the treatment is justified.

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Failure to Make Reasonable Adjustments

• Where a provision, criterion or practice applied
  by or on behalf of an employer, or any physical
  feature of premises occupied by the employer
  which places the disabled person concerned at a
  substantial disadvantage in comparison with
  persons who are not disabled, it is the duty of
  the employer to take such steps as it is
  reasonable in all the circumstances of the case
  for him to have to take in order to prevent the
  provision criterion or practice, or feature,
  having that effect.

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Potential Reasonable Adjustments

• Altering working hours
• Acquiring or modifying equipment
• Providing supervision or other support
• Etc

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When Is It Reasonable to Make Adjustments

• Employers must look at
• Effectiveness and practicality of the adjustment
• The financial and other costs of the adjustments
  and the extent of any disruption caused
• The extent of the employers financial and other
  resources
• Adjustments made for other disabled employees
• The nature of the employers activities, and the
  size of its undertaking

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Justification

• Defence is unlikely to be effective if the
  employer had not considered reasonable
  adjustments or shown not to be justified
• Material to the circumstances of the particular
  case and substantial

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Knowledge of Disability

• Lack of knowledge is no defence, except possibly
  in relation to obligation to make reasonable
  adjustments.
• Employer responsible for employees or agents
  actions

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Practical Consequences for Employers

• Job advertisements
• Application form
• Interview process
• Selection tests

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Practical Consequences for Employers

• Medical examinations
• When an existing employee becomes disabled
• Establishing whether a person is disabled

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An Illustrative Case

• Williams v- J Walter Thompson Group Limited
  (2005)

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