How not to discriminate: What every manager needs to know

11 May 2016 -

The Equality Act 2010 protects employees who may be hindered in their place of work. Here, Chaman Salhan, founder of 2ndOpinionNow, explains how to make sure you stay on the right side of the law

Matt Scott

With the UK’s productivity languishing, the last thing any organisation needs is an under-performing employee.

It’s tempting to dispense with the services of an under-performing staff member, but your organisation could find itself in serious legal trouble if the process is not handled in the correct way. Get it wrong, and you could be facing sizeable fines and compensation payments.

“The key question is whether an employee has a physical or mental impairment that is seen to be substantial and has a long-term, adverse effect on their ability to carry out normal duties,” says Chaman Salhan, CEO of law firm 2ndOpinionNow. “That comes under the Equality Act 2010.”

The nub of the Equality Act is that organisations cannot treat an individual differently because of a disability that impacts on the way they perform their role or duties within the company, and lasts, or is expected to last, for 12 months or longer.

What is a disability?

To the untrained eye, many disabilities may not be immediately noticeable, so managers must be aware of all the circumstances that could lead to a disability being covered by the Equality Act.

“You often think of a physical disability or a mental disability, where there are severe problems, such as schizophrenia or Asperger’s,” says Salhan. “You don’t think of it as someone who has been working with you for a long time and all of a sudden keeps taking time off.”

Impairments caused by a disability could include a chronic back problem that prevents an employee coming to work or performing their duties – or even post-traumatic stress disorder as the result of a traumatic event.

What is discrimination?

The Equality Act does not just apply to ending an employee’s employment early; it also covers any unfavourable treatment in the workplace that arises because of an employee’s disability. This could include being overlooked for a promotion or denied training, or missing out on a bonus.

In the case of an employee being off sick because of a disability, managers need to demonstrate that any action taken was not influenced by the employee’s time off work.

“The test is: has there been unfavourable treatment against the employee?” Salhan says. “The fact that they have been ill would have meant they weren’t at work. The illness has caused them to be away and then caused the unfavourable treatment.

“In that case, a healthy person not attending work would have received the same treatment, but that is irrelevant. The reason they were away was because they had this disability and therefore that would be seen as unfavourable treatment under the Equality Act.

“Companies need to be looking at these decisions through the lens of risk management. The way you control risk is by making it clear that the reason why there is a problem with the person advancing their career, being eligible for courses or being dismissed is due to poor performance.”

Managers must be trained to deal with this, says Salhan, and also understand how employment law works in terms of all forms of discrimination, such as racial, gender and age discrimination.

How do you head off problems?

To help employees suffering from impairments in the workplace, organisations are required to perform ‘reasonable adjustments’ to working practices, such as installing workplace aids or introducing flexible working arrangements.

To ascertain whether an adjustment is reasonable, companies must assess four key factors:

1. The financial and other costs of implementing the changes

2. The extent of any disruption to the way the business operates

3. The employer’s financial and other resources

4. The type and size of the employer

“Ultimately, it is going to depend on the circumstances of the individual and the individual organisation,” says Salhan. “One-size-fits-all doesn’t apply here. If you’re in a situation where you’ve got something of this nature, you need to make sure you have the right people in place to deal with it.”

The default position is to call upon the poor HR department but, in such a nuanced legal area, HR professionals are often not qualified.

”Lots of businesses rely on HR departments, but they are not lawyers,” says Salhan. “You may think it’s cheaper to use the HR department, but if you find yourself with a real problem, it could be far more expensive in the long term.”

This sponsored feature was first published in the spring edition of Professional Manager

If your organisation has concerns about discrimination, contact Chaman Salhan for an introductory discussion on 020 7936 3177 or visit 2ndopinionnow.co.uk