Meaning of Disability
Under the Act the definition of disability is “ a person has a disability if he / she has a mental or physical impairment which has a substantial and long-term adverse affect on his / her ability to carry out normal day to day activities” It should be noted that both alcohol and drug dependency (except where they result from medical treatment) are excluded from the definition of disability under the Act. It does include – stress, heart problems, ME, MS and in some cases – back injuries and problems that are likely to recur.

Substantial
The definition according to recent case law is - “more than minor or trivial” So expect a larger number of employees to fall into this category.

Long Term
i.e. longer than 12 months.

Back injuries
One of the major causes of sickness absence. If the problem is serious enough to cause long-term – or recurring, problems the employer may have to consider dismissal.

But beware – you could fall foul of the DDA if the dismissal is deemed to be unfair.

Dismissal –can it be justified?
It could be if:

The cost of making adjustments to the working environment would be unreasonable or would have limited duration. For example – for a fixed-term contract.

The job is a key one in a small department, which requires to be done full time and is not suitable for job-sharing or temporary staff.

The employee is unable to give any indication of when he / she may be able to return to work.

Less favourable treatment, or failing to make reasonable adjustments can only be justified if the reason is both material and substantial – a tribunal looks at the particular circumstances of each case. It is up to the employer to justify the decision.

What adjustments should an employer have to make?
Although employers are able to recruit or promote the best person for the job, a disabled person should be helped to do the job, and employers are required to make reasonable adjustments to the workplace taking into account the cost and benefits of providing those changes.

It therefore depends on the size of the company, the nature of the job and the cost of making the changes, and whether the employee is going to be able to fulfil the post and perform to an acceptable standard.

If an unfair dismissal claim is made the tribunal will consider what a reasonable employer would have done. For example – examining how to re-organise duties, office layout etc.

What must the employer be aware of:
The employer will have to have knowledge of the disability, or at least the material features of it.

In some cases an employee who fails to divulge to the employer information in a medical report which provides details as to when he / she may be expected to return to work could be fairly dismissed.

Medical examination
Employers may be able to identify employees falling into the DDA category if they include in employees’ contracts a Clause requiring individuals to undergo a medical examination should bouts of sickness suggest that there may be an underlying problem.

Such a clause may well weed out malingerers – and the Friday / Monday sickness absences.

Care should be taken drawing up such a clause and should take into account the Access to Medical Reports Act 1988.

Conclusion
Employers who adopt a negative attitude towards disability – seeing it as a problem best resolved by ill-health retirement rather than making reasonable adjustments could fall foul of the Act.