Recruitment: at this stage, an applicant may reveal that they have a disability. There are restrictions on what questions an employer can ask at the recruitment stage. Any further enquiries about the disability, either before or during the interview, should be restricted to those medical conditions that directly affect either the assessment process or the ability to do the job itself. For example, if an employee has a sight problem that is likely to affect any assessment tests they might have to sit during selection, and also their ability to do the job itself, it will be acceptable to further discuss the extent of the problem and the implications for the work prior to or at the interview. If a candidate has a mobility problem but the job is sedentary and there is a straightforward interview for the role, it may not be appropriate to discuss the disability unless and until the candidate is selected for the job. At that point the employer may consider seeking further medical information in order to be able to fulfil its health and safety duties to the employee and deal with other practical issues. The idea is that a disability that is irrelevant to job suitability or to assessment for the job should not be considered as part of the recruitment process.
If, as a result of the interview and further investigations, the employer concludes that, for disability-related reasons, it is not possible for that applicant to perform the role, even if reasonable adjustments have been considered, then it is lawful not to recruit. However, the decision needs to be clearly justified and taken with proper medical information, and it is critical to carefully document each stage of the decision-making process.
There is no positive duty on a job applicant to reveal a disability. Therefore, if they start work for the employer, and then the employer becomes aware of it, the employer must consider the situation on its merits. Except in circumstances where safety is clearly compromised (for example, epilepsy in a machine shop), if the employment has been continuing for some time without any problems it will be difficult for the employer to argue that the disability is a justification for dismissal. The employer will just have to put in any adjustments that might be necessary and the employment will continue.
● During employment: a worker may develop a disability during employment. Once this happens, as above, the employer will need to determine the extent of the disability, with medical reports if necessary, and decide whether reasonable adjustments are required, and otherwise whether the employment can continue.
● Redundancy: employers need to be careful in conducting redundancy selection procedures, to ensure that they do not include factors that have an adverse effect on disabled workers in comparison with other staff. For example, absences related to disabilities should not be included in the marking process, and allowance should be made in marking for performance where a disability does have an impact on speed of work. Where a disabled person is made redundant, they should be at the front of the queue for redeployment if alternative work is available.