Disabled Workers What are they worth
Philip Davies, the Conservative MP for Shipley, said in the House of Commons that “the disabled or those with mental health problems” were at a disadvantage because they could not offer to work for less money than the National Minimum Wage.
His concern was that they were unable to compete for jobs “in the real world”. He stated that they were less productive than those without disabilities and he felt that an opportunity to work for less money would give them an entry onto “the first rung on the employment ladder”. He made comments such as “doors were being closed in their face”, that they should be “given an opportunity to prove themselves”.
So who are “the disabled” that Mr Davies was referring to? Many will be surprised that disability covers a range of conditions such as diabetes, reduction in the effectiveness of any of the senses, blood disorders, dyslexia, heart conditions (including where someone has a pacemaker) and those suffering with or in remission from cancer, and many mental health conditions including dyslexia and learning difficulties.
Disability is not always visible and some conditions are considered disabilities even though the sufferer may not have had a recurrence of the condition for months or even years, e.g. heart attacks, strokes and cancer. The law does not list which conditions are disabilities, but sets out a number of tests, which if they are met, will qualify as a disability. Thus, a person who has a physical or mental impairment which has an adverse effect on their ability to carry out normal day to day activities, and that effect is substantial (i.e. more than trivial) and long term, then it may be considered a disability.
A person who is unable to carry objects, has mobility problems, remember or concentrate, see, hear or talk, has panic attacks, is very depressed, is likely to be considered to be disabled. In some circumstances, people with stress may also qualify as disabled because they meet the criteria.
People may become disabled during the course of their lives. Thus the person who meets with an accident, has a heart attack, develops cancer, or develops severe depression are all likely to be classified as disabled people. For this reason alone, Mr Davies’ comments are untenable. One could not have people who are being paid a good salary whilst not disabled but revert to a lower salary if they become unemployed and disabled. In effect, this would become a double whammy, losing their health as well as their ability to earn a decent salary through no fault of their own. There are many people who successfully live and work without anyone knowing they are disabled. They may be able to mitigate their disability with medication, but they are disabled persons nonetheless.
The Equality Act 2010 prohibits treating disabled people less favourably than those without disabilities e.g. in relation to recruitment, training and promotion. Employers have a legal responsibility to make reasonable adjustments to the working conditions of disabled people to permit them to work at the same level (including productivity) as non disabled people wherever possible.
Reasonable adjustments may be amount to providing appropriate office furniture, e.g. door handles, chairs and equipment to seating employees on the ground floor, or seating them near to toilets etc. A failure to make these adjustments permits a disabled person who is disadvantaged by that failure to bring a claim in the Employment Tribunal “ET”). Employers should be aware that a) costs of an adjustment alone will not always be a defence to a failure to make a reasonable adjustment and b) more favourable treatment e.g. promotion can be considered reasonable adjustments.
So what happens if employers take the MP’s advice? Should an employer recruit disabled people on lower pay than those offered to non disabled people?
Employees, and unsuccessful applicants for jobs, may bring ET claims if the employer has failed to employ them because of their disability, or even if they have failed to make suitable arrangements for the recruitment process to permit the disabled applicant to apply on equal terms as non-disabled people.
The law goes further than this and where an employer unconsciously makes a job inaccessible to disabled people by adding in “a provision, criterion or practice” (“PCP”) which then results in a disabled person not being selected to do the job, or being unable to carry out the functions of the job, then that employee or indeed prospective employee, may bring a claim in the ET. Usually, these PCPs are hurdles that are either non essential to the job or could be mitigated by a reasonable adjustment and the employer has not thought to do so. Thus, an advertisement for an employee including apparently neutral requirements which rule out disabled people could potentially result in a claim.
Since 2010 employers are generally not permitted to ask about disabilities on pre-employment health questionnaires where the intention or the effect is that the information is used to make a decision about recruiting that individual.
Philip Davies’ comments have ignited the debate in relation to disabilities at work, but most lawyers would firmly advise employers not to offer less money to disabled employees for their day’s work. Currently, the National Minimum Wage ranges from to £3.64 for a 16 to 17 year old to £5.93 for an adult. Many will be alarmed at the proposal of using the disabled as a source of cheap labour, or about the reduced value that may be attributed to the contribution of disabled people in the workplace.
For employees with disabilities, they need to be of the full force of the law which supports them in the workplace and the fact that even before they have become an employee, i.e. as job applicants, there are extremely strong rights and protections in place for them. Compensation for breaches can be significant and so not have an upper limit. Disabled people represent every section of the workforce, and their skills and abilities should not be underestimated. Where in doubt, seek legal advice and it is always useful to make sure that your handbooks are brought up to date on a regular basis and that you are kept in touch with changes in the law.
Terry Falcao can be contacted at Stones Solicitors LLP on 01392 666777. More information is available by logging on at www.stones-solicitors.co.uk.
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