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At the heart of general practice since 1960

Employee who is disabled claims he has rights

Advice on an employer's duty in a tricky practice situation involving a member of staff

Advice on an employer's duty in a tricky practice situation involving a member of staff

The situation

An employee has come to me and claimed that he is disabled. He states that this gives him various rights. What does this mean, and how does it affect the practice?

The advice

Whether a person is disabled for the purposes of employment law is governed by the Disability Discrimination Act 1995 ("DDA").

Generally there are two categories of conditions: those that are specifically defined as disabilities within the meaning of the DDA (these include for example cancer, MS and HIV) and such other conditions that qualify as being disabilities by reason of satisfying a statutory definition.

Therefore conditions that fall outside the named disabilities category may still be disabilities if they fall within the definition.

DDA defines a disability as a physical or mental impairment, which has a substantial and long-term adverse effect on the ability to carry out normal day to day activities.

"Long-term" is defined as meaning lasting over a year. This can therefore lead to the same condition sometimes being defined as a disability and sometimes not. For instance a bad hip may constitute a disability or may not, depending on the particular facts of the case.

There is, however, an express exclusion of certain conditions from being a disability, even if in some respects they fall within the DDA definition. These include kleptomania and non-medically instigated addictions such as alcohol, nicotine or any other substance.

Because of the potential for some conditions to be disabilities or not, depending on the exact facts of each case, whenever an employee raises the issue of long term ill health there needs to be a consideration of whether they are disabled for the purposes of the DDA.

The practice should have a policy in place – one that all employees are aware of - which outlines what will be done should any employee have any concerns over health and disabilities.

This policy should include the need for an employee to obtain a medical report from a specialist who is well versed in the requirements of the DDA. This report should also address the issues that are relevant to the employee (for instance their condition, the effect of this on activities, their job etc.).

If the employee is disabled, it is necessary to consider what steps to take to ensure that the employee is not disadvantaged or discriminated against by reason of their disability.

However, even if the report states that the employee is not disabled within the meaning of the DDA, it is always worthwhile considering the implementation of any reasonable proposals it makes.

This is because, despite medical evidence, ultimately it is only an Employment Tribunal that can decide whether an employee is actually disabled within the meaning of the DDA.

Further, failure to introduce such recommendations may mean that the practice has failed in its duty of care to its employee if that employee was to be injured while at work.

As mentioned in the last Legal Lessons (the dyslexic receptionist), the practice should also consider contacting support groups or charities that specialise in the relevant condition in order to gain the valuable insight these organisations can give to the effective implementation of procedures to assist the employee and the practice.

The particular employee need not be mentioned. Many charities carry out "disability audits" of premises for a nominal fee and can make recommendations that might otherwise not be considered.

Employers should always be alert to the causes of typical failings of employees - for instance frequent or long term absence - that could be a disability.

Michael Salter and Chris Bryden are barristers at 2 Gray's Inn Square Chambers: Michael Salter is also able to accept instructions directly from Pulse readers. Please visit for guidance how to instruct him. Legal points are provided for discussion only and are given without obligation. For specific legal advice consult your solicitor or contact Michael Salter via his website.

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