Insight: Disability discrimination claims set to surge – but you can take preventative steps - as we explain

With new employment laws coming into force later this year, employers are sitting on a ticking time bomb. The introduction of “day one” rights for unfair dismissal will give employees immediate access to legal recourse, leading to a dramatic increase in claims, especially disability discrimination. If you are not prepared, you will be facing cost and stress, even if the claim is unfounded.

Employees are likely to throw in any claim they can during or after dismissal, often to maximise their compensation (and disability claims are expected to be at the forefront as compensation is unlimited). We highlight what employers can do to help themselves.

“The Employment Tribunals have found that disability can extend to invisible conditions such as untreated anxiety.”

What is the worst-case scenario under a disability discrimination claim?

In many cases, with greater awareness on the employer’s part, claims can be avoided. We will explain the steps you can take to prevent such claims.

1. Disability discrimination claims to rise

With the upcoming introduction of the “day one” rights for unfair dismissal, employees will have instant access to claims. This makes it much more likely they’ll pursue claims, including those related to disability discrimination, to maximise their compensation. If an employee raises a disability concern, claiming that the employer failed to make reasonable adjustments or failed to accommodate their condition, the risks for your business increase significantly.

“It does not matter that the employee was bad at his or her job or that adjustments were impossible in practice.  The law in the UK requires a long process of attempts even if the result is inevitable. The employee of course continues to be paid.”

2. Your first line of defence: Health & Safety reports

Don’t think you can rely on employees to disclose health issues. It’s a dangerous gamble. If an employee doesn’t disclose a disability to the boss, but he or she does mention it verbally to a colleague, you will face a discrimination claim as knowledge is implied, and you could be left exposed to a costly discrimination claim.

The answer? Occupational health and safety reports. For as little as £350 plus VAT, you can get a third-party health assessment that documents any health issues, including disabilities. These reports can be vital in defending against claims. If an employee doesn’t disclose a disability, you can use the report to demonstrate that you took reasonable steps to assess their health and were not made aware of any condition. Without such reports, you risk defending yourself in the dark.

3. Managerial Training

One of the most critical and often overlooked risks employers face when it comes to disability discrimination claims is lack of awareness on the need to report indications of health issues. A single failure by one of your managers to report an employee’s disability or health condition could lead to your business being held fully liable under vicarious liability. This means that even if the manager acted in good faith or simply forgot to inform HR, the employer is still responsible for the consequences. We are not medical practitioners and cannot tell what is or even could be a disability. The message therefore must be caution and if in doubt report to HR. 

“Some employees are canny and start planning their claims well in advance.”

4. What is vicarious liability?

Under employment law, vicarious liability holds an employer responsible for the actions or omissions of its employees, including managers, when those actions occur during the course of employment. This means that if a manager knows about an employee’s disability but fails to report it to HR or the relevant person within the company, the employer is still liable for any discrimination or failure to make reasonable adjustments that arise from that knowledge.

For example, if an employee has a disability, but their direct manager fails to inform HR or senior management, the employer will not be able to demonstrate that they were unaware of the disability. This lack of awareness could then be used as evidence in a discrimination claim, where the employee argues that the employer didn’t make reasonable adjustments.

“Adjustments would not necessarily be required for an employee in the same circumstances who did not have a disability.  The employer dealing with a non-disabled person could, depending on the facts, go through a performance review without offering adjustment.”

5. SIMPLE STEPS MAY SAVE YOU

When a claim arises, a small employer will be treated as harshly as a large employer in practice on any shortcoming on procedure. Vigilance and monitoring now must be seen as essential cost of doing business. Here are some ideas:

1. Clear reporting policy: Every manager must know that they are obligated to report any information about employee disabilities or health concerns to HR or the relevant person in the organisation. This policy should be formalised, included in your employee handbook, and discussed. Tucked away in the drawer is of no help.
2. Health questionnaires: Ask the employee if there are any conditions. The use of medical questionnaires can be an indication of areas which may need review.
3. Training on disability awareness: Train your staff on disability awareness and the importance of reporting health and disability concerns. The team should understand the potential consequences of not reporting health related issues, not only for the employee but also for the business.
4. Mandatory record keeping: Establish a system where managers are required to document any conversations or disclosures regarding an employee’s health and disability and send that information to HR in a timely manner. Make it clear that this reporting is not optional and failure to comply could result in disciplinary action. This helps to ensure that disability-related matters are properly addressed and creates a record that can be used in the event of a dispute. Evidence can win the day.

The clock is ticking, and with new employment laws about to take effect, you need to act fast to protect your business. Vicarious liability is a serious issue. However, some relatively simple and inexpensive steps could put your business on stronger ground.

Gannons is here to help. We can guide you through the complexities of the new laws, help you set up the right systems, and ensure your business is fully protected from the increasing threat of disability discrimination claims.

Contact us today to safeguard your business from the looming legal storm.