The Equality Act 2010 and Disability Guide for Managers and Staff
The Equality Act 2010 (the Act) was largely implemented in October 2010. One of the key aims of the Act is to streamline the current mix of anti-discrimination and equality laws into one place. The Act will offer protection to individuals with “protected characteristics” which are:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
The following list of “Frequently asked questions” has been developed to provide advice and guidance on disability discrimination under the Equality Act 2010 as some of the most significant changes made by the Act affect the law on disability. It covers the following points:
- Disclosing a disability
- Reasonable adjustments
- Access to Work
- Where to go to for advice
- Disability related sickness and disability related leave
How does the Equality Act 2010 affect the workplace as far as disability is concerned?
The Act introduces a number of key concepts which are listed below:
As far as disability is concerned this is direct discrimination against a person because they have an association with someone who is disabled. So for example, it would be direct discrimination to refuse a job to someone on the grounds that they have a disabled child;
This has now been extended to cover disability and is discrimination because the employer wrongly thinks the person is disabled or treats the individual as if they are disabled, even if in fact, they are not.
This has now been extended to cover disability and it occurs when an employer applies a policy, criterion or practice to everyone but which in fact has a disproportionate impact on disabled people (i.e. people who have the same disability). However, this type of discrimination can be justified if the employer can show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim. Please remember that a lack of financial resources alone is unlikely to be sufficient justification.
The Act defines harassment as “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating environment for that individual.” In certain circumstances, employees will be able to complain of harassment even if they are not disabled or the harassment is not directed at them and the University can be liable for harassment of staff by non-employees (e.g. contractors).
Discrimination arising from a disability (this replaces what was previously known as “disability related discrimination” under the Disability Discrimination Act 1995 and means that a disabled person has been treated less favourably because of something connected with their disability (for example, a tendency to make spelling mistakes due to dyslexia).. An employer can seek to justify this but the Act makes the new test of justification much harder for employers to meet. This form of discrimination can occur if an employer knows or can reasonably be expected to know that the employee is disabled.
Other key concepts are largely unchanged, namely:
Direct discrimination – treating a disabled applicant or employee less favourably simply because they are disabled;
To victimise or permit the victimisation of a disabled employee.
The Equality Act 2010 will make changes to the duty to make reasonable adjustments to prevent an employee being place at a substantial disadvantage. The duty to make reasonable adjustments aims to make sure that a disabled person has the same access to everything that is involved in getting and doing a job as a non-disabled person, as far as is reasonable. The duty to make reasonable adjustments will apply to three separate requirements:
1. the first requirement involves changing the way things are done (equality law calls this a provision, criterion or practice) This means any provision, criterion or practice of the university (i.e. the way things are done by the university) which puts a disabled person at a substantial disadvantage in comparison to someone who is not disabled.
2. the second requirement involves making changes to overcome barriers created by the physical features of the workplace. This includes any physical feature which puts a disabled person at a substantial disadvantage compared with a non-disabled person. This requirement has been extended by the qualities Act 2010 so that a physical feature is no longer limited to premises occupied by the employer. The definition of physical feature has been expanded to cover:
- a feature arising from the design or construction of a building;
- a feature of an approach to, exit from or access to a building,;
- a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises; or
- any other physical element or quality
3. the third requirement involves providing extra equipment (which equality law calls an auxiliary aid) or getting someone to do something to assist the disabled person (which equality law calls an auxiliary service). This requirement means taking reasonable steps to provide an auxiliary aid where the absence of such an aid would place a disabled person at a substantial disadvantage when compared with persons who are not disabled (e.g. the provision of a hearing–loop).
There can be no justification for a failure to make a reasonable adjustment. However, on the infrequent occasions that the university concludes that an adjustment is not reasonable and a disagreement arises, the university is committed to working with employees and their representatives to reach a mutual understanding on the best way forward.
- What is disability?
- What conditions / impairments are covered by the Act?
- The Act and Health and Safety Legislation
- What is a “reasonable adjustment”?
- What exactly is meant by the word “reasonable” when it comes to adjustments?
- Who decides what reasonable adjustments should be made?
- How quickly does a reasonable adjustment have to be made?
- What is Access to Work and what support can they provide?
- Can a disabled employee be transferred to a different role?
- If redeployment is to a lower graded post, is the salary protected?
- If an individual is on sick leave due to a disability, will the university to continue to pay them when their entitlement to sick pay has expired?
- If I do disclose to my manager that I have a disability, will my colleagues be told about it too?
- What if an individual is taking a higher than average level of sickness leave and I, as their line manager, suspect that this may be due to a disability but the individual has not disclosed this to me?
- I have a condition which I think would probably be covered by the Act. However, I’m reluctant to tell my manager about it in case I’m moved from my job or even dismissed. What should I do?
- What is meant by the term “disability-related leave”?
- How is sickness that is related to a disability recorded?
- What happens if it is identified that a disabled individual is under performing during their probationary period?
- What issues do I need to take into account whenever I’m drafting a person specification for a post as far as disability is concerned?
1. What is disability?
There are two key things to note about the definition of disability:
- It is a broad definition and gives protection to some people who wouldn’t necessarily use the term “disabled” to describe themselves;
- It is an individualised definition in that it starts with the effect on the person rather than the nature of the diagnosis or impairment.
Under the Act a person is considered disabled if they have:
a physical or mental impairment which has a substantial and long-term adverse effect on their ability to undertake day-to-day activities.
An adverse effect on day-to-day activities might mean that someone can’t do certain tasks at all or that it takes them longer or involves pain or effort. It may also mean that someone avoids those tasks as a result of the additional pain or effort.
In establishing whether someone is disabled, it is the effects of an impairment without intervention or treatment which are relevant: the effects of medical treatment, physiotherapy, prosthesis or hearing aids, for instance, are ignored.
Long term means that the condition has lasted or is likely to last for at least 12 months, or for the rest of an individual’s life. If the effects are sometimes absent or less severe, they are treating as continuing if they are likely to recur. This means that people with fluctuating conditions such as depression, arthritis or asthma can be covered.
2. What conditions / impairments are covered by the Act?
With the exception of cancer, HIV and multiple scelerosis, there is no definitive list of conditions / impairments which are covered by the Act. Each case must be considered individually, based on the definition given above taking into consideration the effects of the impairment on the individual. The definition might include, for example, people with the following:
- sensory impairment (vision and hearing)
- heart conditions
- musculoskeletal conditions such as back problems
- recurring or fluctuating conditions, such as arthritis or asthma
- mental health problems, such as depression
- severe disfigurements
- learning disabilities
It should also be noted that individuals who are registered as blind or partially sighted by a local authority, or who are certified as being blind or partially sighted by a consultant ophthalmologist are automatically treated under the Act as being disabled.
If an individual has been disabled in the past due to a condition from which they have since recovered or from which they are in remission, then they are still protected from discrimination, victimisation or harassment by the Act
3. The Act and Health and Safety Legislation
Cardiff University is legally required to ensure, so far as reasonably practicable, the health, safety and welfare at work of all employees. When considering its duties to disabled employees, the University will fully explore its responsibilities under both the Act and health and safety legislation in order to eliminate or reduce any safety risks to disabled people and others. In most cases both pieces of legislation are mutually compatible and in all but a minority of cases, facilitate support and adjustments for disabled people.
Cardiff University’s approach will be to look at a wide range of options that would make its employment practices accessible. When looking at the specific requirements of an individual, the University will consider what reasonable adjustments may be necessary under the Act and which if any, additional reasonable and practicable adjustments are necessary to ensure compatibility with health and safety legislation.
Indirect discrimination can be justified on the grounds of health and safety if it is considered that the retention of a disabled person in a particular role or the adjustments to do so could pose an identifiable risk to the individual, colleagues, students or members of the public. However, this has to be proven to be material and substantial. In such circumstances the university will explore redeployment opportunities with the disabled person.
4. What is a “reasonable adjustment”?
The Act states that an employer has to make reasonable adjustments to:
1. any provision, criteria or practice of the university.
An adjustment is simply a change, either to a physical feature of the environment or to the way things are done. It is not possible to give a general definition of what constitutes a “reasonable adjustment” as this will depend upon an individual’s specific needs and circumstances but the aim of such an adjustment is to enable the employee to develop and use their abilities on an equal basis with non-disabled colleagues whenever possible.
Examples of reasonable adjustments to physical features could include:
- improving accessibility – for example, providing handrails, a ramp and / or a stair lift;
- providing voice-recognition software for someone who is visually impaired or mind-mapping software for someone who is dyslexic;
- providing an adapted keyboard or mouse for someone with arthritis;
- providing an orthopaedic chair for someone with a back problem;
- moving a workstation closer to a location on the ground floor for an individual who has mobility problems;
- providing an amplified telephone for someone who is hearing impaired.
Provisions, criteria and practices cover all aspects of employment, for example:
recruitment and selection
promotion, transfer, training
retention, including sickness absence policies
any other benefits
Examples of reasonable adjustments to provisions, criteria and practices could include:
- modifying procedures for testing and / or assessments as part of a recruitment exercise;
- allowing flexible working, such as annualised hours and part-time working;
- extending an individual’s probationary period if disability-related sickness has prevented the individual from being able to demonstrate an acceptable level of performance in the core competencies of the job during the normal probationary time-scale for the role;
- adjusting trigger points for management action in the application of sickness procedures;
- providing an instruction manual in an easy read version for someone who has learning difficulties;
- arranging for meetings to be held at a location or at a time to suit the individual or arranging for short breaks during long meetings - (for example, during disciplinary or grievance procedures);
- allowing non-standard start and finish times (for instance, so that an individual who has depression can start work later in the day as the side-effects of the medication they are taking mean that they find mornings difficult);
- allocating some minor aspects of the role to another / other individuals without overburdening other individuals;
- providing key instructions in writing rather than giving these orally to facilitate understanding and memory;
- giving an individual more time to complete a particular task;
- providing enhanced supervisory support for an individual and / or assigning a mentor.
The Act provides that, where a reasonable adjustment duty relates to the provision of information, the steps that are reasonable for the employer to have to take include ensuring that the information is provided in an accessible format – e.g. Braille or large type. The Act 2010 makes this potential requirement explicit.
2. Any physical feature which puts a disabled person at a substantial disadvantage compared with a non-disabled person. This requirement has been extended by the Act 2010 so that a physical feature is no longer limited to premises occupied by the employer. The definition of physical feature has been expanded to cover:
- a feature arising from the design or construction of a building;
- a feature of an approach to, exit from or access to a building,;
- a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises; or
- any other physical element or quality
. 3. There is also a requirement to take reasonable steps to provide an auxiliary aid where the absence of such an aid would place a disabled person at a substantial disadvantage when compared with persons who are not disabled (e.g. the provision of a hearing –loop).
5. What exactly is meant by the word “reasonable” when it comes to adjustments?
The draft Code of practice on employment lists a number of factors which may affect whether a particular adjustment will be reasonable for the employer to make. When considering substantial adjustments, it advises that the following check list should be considered:
(Note: Unlike the DDA, the Equalities Act does not include guidance about what factors should be taken into account in determining if an adjustment is reasonable – but it is referred to in the draft Code of practice on employment.
- will the adjustment be effective in preventing the disadvantage?
- is the adjustment practical?
- the extent of any disruption;
- the extent of financial resources;
- the financial or other assistance which may be available to the employer to help make the adjustment. Access to Work may be able to provide funding. (Further information on Access to Work can be found below – see question 9).
However, in many cases, it is likely that an individual will not need any adjustments, or that the adjustments needed will be relatively minor.
6. Who decides what reasonable adjustments should be made?
Finding a “reasonable adjustment” can be a creative process as there is no “one situation fits all” method to use. You may best expert when it comes to your particular condition (unless you have recently acquired it) so, combined with your line manager’s knowledge of the role and perhaps some expert advice, a very simple yet creative solution can often be found.
When talking to your line manager, it may help if you have thought about possible solutions as well as problems.
You need to identify what is causing the difficulty for you:
- Is it your physical surroundings, your chair, the lighting?
- Is it your ability to a part of your job because of your impairment?
- Is it having to move equipment?
- Is it taking part in training/meetings, perhaps because of communication issues?
Sometimes solutions are easy and sometimes they are more complex. Occasionally, there may be no solution but this is rare and in such cases, redeployment (taking up a different role) may be an option.
- The line manager must determine what reasonable adjustments to make through discussion with the disabled employee.
- Managers must not jump to conclusions about what a disabled person may or may not be able to do.
- The line manager must also monitor the ongoing effectiveness of the adjustment.
It may be appropriate to involve an Occupational Health Nurse / Consultant service and an HR Manager in the discussions about reasonable adjustments. For example, this may be the case where an individual has recently developed a condition and is unsure of its impact or where an individual has been on long-term sickness and a return to work plan needs to be agreed.
The employee may not be aware of assistance that may be available to them from other organisations. So discuss with the individual the feasibility of contacting other organisations which deal with the employee’s specific condition e.g. Arthritis Care http://www.arthritiscare.org.uk/Home ; British Dyslexia Association http://www.bdadyslexia.org.uk ; British Epilepsy Association (http://www.epilepsy.org.uk/). It may be appropriate to make contact with other organisations which may be able to provide advice about adjustments, such as AbilityNet email@example.com, who can assist employers in adapting and adjusting their information and communications technology. Contact can be made with these organisations through the University’s Occupational Health Unit.
Should an individual not wish to disclose the nature of their disability, then they need only state the impact of their condition on their ability to undertake their role. However, while the university would encourage individuals to do so in order that maximum support can be offered, there is no obligation on an individual to disclose either the nature of their condition or its impact.
7. How quickly does a reasonable adjustment have to be made?
The University is committed to putting adjustments in place as promptly as possible. There are no prescribed time-scales for making reasonable adjustments and these will be dependent upon circumstances and on whether or not the adjustment is substantial. However, it can be a distressing time for an individual when adjustments or redeployment are being considered and usually, the line manager will be responsible for liaising directly with the individual, keeping them updated and managing their expectations in terms of the time that may be required to progress issues. Where the implementation of a reasonable adjustment is planned but cannot be implemented immediately e.g. due to the fact that equipment has been ordered, then the individual may exempted from certain tasks /.duties while adjustments are progressed. Staff can notify the University of a disability by completing a Change to Personal Details form.
8. What is Access to Work and what support can they provide?
Access to Work (AtW) is a scheme run by Jobcentre Plus. It offers:
a) practical advice and help that can be tailored to suit the needs of an individual in a particular role in order help overcome work-related obstacles resulting from a disability.
b) AtW may also be able to make a grant towards approved costs that arise because of an individual’s disability.
Grants may be available to assist with the following:
- Adaptations to premises and equipment
- Special aids and equipment
- A support worker
- Travel costs (both in getting to work and travel required to do the job)
- Communication support at interview
Once an assessment has been conducted, AtW will agree what help can be provided. The university will pay for any agreed adjustments and then reclaim the cost from AtW. Please note that it is not the role of AtW to give an opinion on whether or not an individual is covered by the Act and the fact that a grant is approved will not automatically mean that an individual is considered to be covered by the Act.
Please contact an HR Manager if you would like more information about AtW. Alternatively, you may contact Access to Work directly at:
Tel: 02920 804084
Text phone: 02920 644886
Please note that if an application is to be made for support from AtW, then the individual affected is usually required to complete the initial paperwork provided by AtW in order to progress the application. This is for reasons of confidentiality. With the individual’s agreement, a manager or an Occupational health adviser may be involved in progressing the request.
9. Can a disabled employee be transferred to a different role?
Our first consideration is always to retain the individual in their current role. Therefore, reasonable adjustments must be considered in an attempt to achieve this. However, if there are no reasonable adjustments which would enable the individual to undertake the core duties of their existing role or the adjustments that have been tried were not, or are no longer effective, then redeployment must be considered. When considering redeployment opportunities, consideration will need to be given as to whether or not the individual’s condition is degenerative as this may have a bearing on the posts that are considered. Further advice may need to be sought from the Occupational Health Department. Redeployment opportunities should be sought that match the individual’s current grade. However, where this is not possible, an individual may agree to be redeployed to a lower graded post.
Where redeployment is being considered for an employee, then the university will proactively seek to identify posts at the same grade. If possible, this will be in the individual’s current school or department but posts in the wider university may be considered. It would not be appropriate to simply leave the individual to apply for alternative roles on their own.
However, the university is not obliged to create a new job for someone who cannot undertake their current role or be redeployed, after reasonable adjustments have been considered.
10. If redeployment is to a lower graded post, is the salary protected?
If an employee agrees to be redeployed to a lower graded post, then the salary is not protected and the terms and conditions of employment of the lower graded post will apply.
11. If an individual is on sick leave due to a disability, will the university to continue to pay them when their entitlement to sick pay has expired?
If a disabled individual has been on sick leave but has been certified as fit to return to work but is unable to do so straight away as they are waiting for the employer to make a reasonable adjustment, then the individual will be deemed to be on paid leave, not sickness absence. This might occur where the adjustment affects a key element of the role. In these circumstances the individual would be entitled to full pay and the absence should not be recorded as sickness. However, if an individual has been certified as fit to return to work but they are waiting for a reasonable adjustment to be made, the manager and the individual should discuss the possibility of the individual returning to work to undertake duties which are not affected by the need for the reasonable adjustment. The individual can fulfil those duties while waiting for the adjustment to be made.
Please note that there is no obligation on the employer to continue to pay sick pay to a disabled individual who has exhausted their entitlement to sick pay and is unable to return to work due to continuing ill health.
12. If I do disclose to my manager that I have a disability, will my colleagues be told about it too?
Any initial disclosure of a disability to a line manager / Human Resources Manager / Occupational Health Adviser will be treated with sensitivity and in the strictest confidence, in accordance with the Data Protection Act 1998. The line manager / Human Resources Manager / Occupational health adviser will discuss issues around disclosing this information to others with the individual.
It is understood that staff may feel uncomfortable about information relating to their disability being shared with other members of staff within the University. The University makes the following assurances about the way in which such sensitive information will be handled:
- information relating to a staff member’s disability will not be shared with other members of staff without the individual’s express permission;
- information will only be made available to a limited number of staff who need this information in order to consider and implement reasonable adjustments, including putting safety provisions in place. Information will be limited to the details that they will need to know in order to put the provisions in place.
You may be concerned that the implementation of a reasonable adjustment may mean that your colleagues think you are being given special treatment if they don’t know that you are disabled - for example, if you work non-standard hours as a reasonable adjustment. If you have such a concern, then you are encouraged to discuss this with your manager to agree whether or not you want any information about your disability disclosed to colleagues to enable then to understand why the adjustment has been made.
Staff can notify the University of a disability by completing the Change to Personal Details form.
13. What if an individual is taking a higher than average level of sickness leave and I, as their line manager, suspect that this may be due to a disability but the individual has not disclosed this to me?
You should discuss this possibility with the individual during a Return to Work Interview, or possibly a Home Visit, if the individual is on long-term sickness absence. You should be compassionate towards the individual, letting them know that the aim of such a discussion is to identify whether any reasonable adjustments can be made which would assist them to carry out their role / return to work.
It would also be advisable to refer the individual to the Occupational Health service for their advice on any reasonable adjustments. This should be done by completing fully the management referral to indicate concerns regarding disability. Remember to record actions agreed so that ongoing support can be provided.
It could be the case that an individual has previously disclosed a disability to the University’s Occupational health adviser / Consultant but has not given permission for the nature of the condition to be disclosed to the manager. The Occupational health adviser / Consultant should have discussed with the individual the need for any adjustments to undertake the role. The Occupational health adviser / Consultant will then advise the line manager of suggestions that have been made as possible adjustments. It will then be the responsibility of the line manager to consider this advice to determine whether the suggestions can be implemented as reasonable adjustments. The information about possible adjustments is passed on to the line manager for a decision but the condition necessitating the adjustments will not be disclosed.
14. I have a condition which I think would probably be covered by the Act. However, I’m reluctant to tell my manager about it in case I’m moved from my job or even dismissed. What should I do?
Cardiff University is committed to creating an inclusive environment where individuals feel valued and feel happy to disclose a disability. The University operates robust policies to protect individuals from discrimination, bullying and harassment. The University wants you to be able to work to your full potential and may be able to help you to do this by making reasonable adjustments to work duties, work schedules or locations. The best approach is to work with you on what support would be useful to you so that you remain involved in the process at all times.
If you think that you need reasonable adjustments to be made, you should talk to the person or people who are responsible for supporting you generally in you day to day work. Your line manager or your School’s / Department’s Human Resources Manager are often good first points of contact. Alternatively, you may prefer to talk to an Occupational health adviser or the Equality and Diversity Manager for Human Resources.
You can also contact the Human Resources Department if you would like to notify the University that you are disabled without necessarily requesting adjustments.You can do this by completing a Change to Personal Details form.
You are not obliged to disclose a disability. However, if you chose not to disclose a disability to the University and your performance or conduct are deemed to be unsatisfactory, then your line manager could not be expected to make any reasonable adjustments to the application of performance management / disciplinary procedures if he /she couldn’t reasonably have been expected to know about any disability and its possible effects on your performance / conduct.
15. What is meant by the term “disability-related leave”?
This is not a legal term but is used to describe the time off work that a disabled person may be granted as a reasonable adjustment for assessment, treatment or rehabilitation related to their disability.
For example, an individual may have arthritis and is advised by their consultant that they will need a series of weekly injections which will be administered at the local hospital every Wednesday afternoon for the following six weeks. The employee should agree with their manager that they can have this time as disability-related leave in order that they can have the treatment.
This leave will be recorded for monitoring purposes as disability-related leave. It does not constitute sickness leave.
16. How is sickness that is related to a disability recorded?
Disability-related sickness will be included in sickness records but it is identified separately so that managers can take it into account when they are reviewing an individual’s sickness record. For example, all managers should regularly review sickness records in order to identify those individuals who are taking a higher than average level of sickness absence. The manager should examine the record to identify any disability-related sickness absence. In accordance with the University’s Sickness Absence Procedure, absences related to disability will not be taken into account for the purposes of promotion, references or selection for redundancy. Such absences will be subject to review but not as part of the University’s Management Standards.
Each case will need to be considered on an individual basis and line managers should seek advice from their Human Resources Manager when reviewing the sickness absence record of a disabled member of staff.
17. What happens if it is identified that a disabled individual is underperforming during their probationary period?
If an individual is having difficulty performing their role during their probation, then it should be determined if the reasons for this may be related to a disability. If this is the case, then consideration will need to be given to reasonable adjustments that can be made, with expert assessment being sought when necessary. For example, in some cases, it may be suspected that an individual has dyslexia if they have problems with written work. A referral for expert advice may be needed to determine if this is the case. As a reasonable adjustment the manager may assign a colleague who can check the individual’s written work for them, or text to speech software may be provided to assist them.
However, if following reasonable adjustments the individual is not able to fulfil the essential elements of the role, then consideration may need to be given to redeploying the individual to another post or terminating their contract of employment.
18. What issues do I need to take into account whenever I’m drafting a person specification for a post as far as disability is concerned?
The person specification must focus on substantial and regular requirements of the role and must not contain any unnecessary or marginal requirements as this can lead to discrimination. For example, a manager must not stipulate in a person specification that an applicant “must be able lift items weighing up to approximately…..kg on a regular basis” unless this is a substantial and regular requirement of the role i.e. inclusion of the requirement must be proportionate. If such weights are only to be moved occasionally, then alternative means may be found for doing this. The inclusion of marginal requirements may dissuade disabled people from applying for posts.
19. Further useful information can be found by referring to the following sites:
Disability information, including information about the Disabled Staff Network
Dignity at work and Study Policy and related links
Estates – Accessibility Information