MH Employment

Thursday 13 July 2017

Making Adjustments for Disabled Employees and Job Applicants

Disability as a Protected Characteristic

The Equality Act 2010 (the “Act”) protects, amongst others, employees and job applicants who have a disability, which is a protected characteristic under the Act. The Act considers a person to have a disability if they have a physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day-to-day activities. Some conditions such as cancer and multiple sclerosis, for example, fit clearly into this category, whilst other conditions, for example Asperger’s syndrome, dyslexia, and other mental conditions such as depression, are not self-evident and may only impact or become evident in particular situations. Employers need to be particularly careful about making adjustments for these less ‘obvious’ disabilities, as the Government Legal Service (GLS) recently discovered to its detriment.

In the case of Government Legal Service v Brookes UKEAT/0302/16, the Employment Appeal Tribunal (EAT) upheld the decision of an Employment Tribunal (ET) that by requiring a job applicant with Aspergers to take a multiple choice test as part of a job application, the Government Legal Service (GLS) was liable for indirect discrimination.