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Managing disability 5


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Integrating Health and Safety with Equality

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Managing disability 5

  1. 1. Managing disability, Illness or injury at work – a common process and procedure, linking Health and Safety to Equality “Abusus non tollit usum ” A DISCUSSION PAPER Jim McCann APRIL 2012 Managing disability,Illnessorinjuryatwork – A commonprocessandprocedure,linkingHealthand SafetytoEquality,removingbarriersandstereotypes,allowingpeople withdisabilitytocontribute to theirfullestcapabilityby beingtreatedaccordingtotheirneeds.
  2. 2. 2 INDEX Introduction 1. Integration 2. How do policies and practices interact? 3. Understanding the policy implementation process 4. Disability equality in the public sector 5. Revealing a disability (Confidentiality) 6. Data protection 7. Health and safety laws place duties on everyone concerned with work activities. 8. Reasonablypracticable & Reasonableadjustments. 9. Fitness-to-Work 10. Direct’ discrimination 11. Discrimination by Perceptionof disability 12. Harassment 13. Basic Ergonomics 14. Discussion 15. What is a risk assessment? 16. Risk assessmentand disability 17. PROCESSMAP FOR INDIVIDUALS NOT PROTECTED UNDER THE EQUALITY ACT 2010 18. FIVE STEPS TO RISK ASSESSMENT 19. FIVE STEPS TO (DISABILITY) RISK ASSESSMENT 20. DISPUTES 21. Do’s 22. Don’t 23. Acknowledgments. 24. Glossary/Equality jargonbuster
  3. 3. 3 INTRODUCTION A dichotomy exists when conceptualisation bias and cognitive bias leads to a cognitive dissonance or confirmation bias related to the simplistic heuristic model of the risk hazard management paradigm commonly used. Otherwise known as; I haven’t a clue about safety and risk so I will err on the side caution and although I know it is wrong and flies in the face of Equality and I should do something I do not know what that something is because it seems complicated compared to the generic risk assessments but no one will be hurt if we ‘suck and see’. Ergo it must be ok, We do not need to speak in jargon or be so frightened that we are not experts in Health and Safety, Equality or Ergonomics, that it stops us from doing things that are right. Hiding behind Health and Safety Rules to circumvent Equality issues is both disingenuous and probably unlawful if not done for good reasons. Sucking eggs requires that you at least know what an egg is! Light duties, Office type duties or restricted duties are seldom measured against capability or from an ergonomics view point. The medical terms of Fit, unfit, Temporary unfit, permanently unfit or fit with adjustments rarely give the Line Managers any idea of what a disabled person can or cannot do. Paradoxically this may result in an increased level of risk and harm being realised or be unlawful, leaving people with disabilities illness or injury disadvantaged in opportunity demotivated and feeling discriminated against. This paper is concerned with;- Integration of Health and safety policies with Equality through Ergonomics, Activity, Effectiveness, Efficiency and Equity. How policies and practices interact? Adoption of reasonable adjustments as a preferred option and understanding the policy implementation process.
  4. 4. 4 1. Integration Integration of Health and safety policies with Equality through Ergonomics offers the opportunity to take a broader approach whereby health and safety engineering or management systems / solutions are designed round the individual this could be measured against:  Activity; refers to the degree of effort and interest, as well as resources, devoted to job retention and return to work. The concept does not imply measurable 'inputs'; it is, rather, a barometer of the Managements willingness to engage..  Effectiveness; refers both to the quantitative and qualitative effects (intended and unintended) of policies, programmes and so on and to results of the interactions (efficiency). It is recognises that what is 'effective' is contested among government departments, enforcement agencies, service providers, employers and other workplace actors, and workers with disabilities themselves. Disabled workers' perspectives on desirable outcomes should also be taken in to consideration.  Efficiency; refers to the interactions between elements, both within and across themes. It is assumed that job retention is more likely to be achieved if elements such as health and safety and Equality work together more efficiently. It is also assumed that more efficient systems will be less costly  Equity; refers to the coverage within the system of sub-populations of disabled workers. It is assumed that effective and efficient policies and practices must also be equitable (or fair) and to how policies and practices impact on disabled workers depending on type of disability and retaining workers with newly acquired / diagnosed impairments . 2. How do policies and practices interact? There is often a dichotomy between Equality policies designed to promote job retention and return to work and from more broadly-based Health and Safety policies, their success may be impeded by conflicting policies or practices or by inadequate links to other programmes, services or facilitators in the working environment. A further aim should, be to examine the dynamics with a view to identifying ways in which elements might interact more effectively and efficiently. a) Equality and Safety policies and practices; to promote employment and retention of disabled people, by integrating Health and Safety Committees and Equality forums b) Benefit and compensation programmes or medical retirement, Taking advice from pensions advisors, HR
  5. 5. 5 c) Occupational health and Welfare services asking the right questions with regards adjustments or fitness d) Employment support and rehabilitation services, Job Centre Plus Disability Support Units e) Adaptation of systems of work and workplace strategies, Post rotations, flexible working patterns. f) Access to expert or medical advice. Occupational Health or Safety Dept. g) Support of non-disabled workers, engaging other workers in support roles and understanding disability issues.. h) Training, supervision and instruction. KISS with dignity “I’m disabled not stupid” i) Adoption of reasonable adjustments as a preferred option 3. Understanding the policy implementation process Identification of policy intentions and outcomes is only part of the picture. It is the way in which policies are put into practice - the process -which determines their effects on job retention and return to work. Accordingly, we should map the range of participation in the process, the positions they adopt and their inter-relationships, and to begin to understand the constraints and facilitating factors, both within the Department and across the organisation for those concerned with job retention and return to work i.e. HR, Health and Safety and Occupational Health. 4. Disability equality in the public sector Public authorities and public, private or voluntary organisations carrying out public functions have a new Equality Duty. In summary, those subject to the duty must, in the exercise of their functions, have due regard to the need to;  Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.  Advance equality of opportunity between people who share a protected characteristic and those who do not.  Foster good relations between people who share a protected characteristic and those who do not.
  6. 6. 6 5. Revealing a disability If a disabled person expects an employer to make a reasonable adjustment, they will need to provide the employer with enough information to carry out that adjustment. Disabled people have a right to confidentiality and an employer must not disclose confidential details about them without their explicit consent. 6. Data protection The Data Protection Act 1998 places duties on employers to ensure confidential and appropriate handling of ‘sensitive personal data’, which includes data about a person’s health. The Data Protection Act also gives individuals the right to see personal data and information held or processed about them, provided they request it in writing. This provision is important in accessing personal information relating to a risk assessment. 7. Health and safety laws place duties on everyone concerned with work activities.  Employershave a general dutytotake reasonablypracticable measures toprotectworkers, and those affectedbytheirworkactivities,fromthe riskof injuryorharm at work.They mustalso provide workerswiththe information,instruction,trainingandsupervision required to ensure their health, safetyand welfare at work.  Employers also have specific duties depending on the nature of their business.  Employees must look after themselves and look out for others who may be affected by their work activities. They must also co-operate with their employers on health and safety. Confidentiality Who has health and safety responsibilities?
  7. 7. 7 8. Reasonably practicable Reasonable adjustments The law does not expect employers to eliminate all risk, but they are required to protect people as far as ‘reasonably practicable’. This is a legal concept which means balancing the level of risk against the measures needed to control the risk in terms of money, time or trouble. HSE has set out some principles of sensible risk management Reasonable adjustments in employment The Equality Act requires employers to make changes to help disabled people work. These are known as 'reasonable adjustments' and can include: making changes to the building or premises where the person works. Changing the way in which work is done. Providing equipment that will help the person do their job. Most adjustments don't cost anything at all - just a change in attitude. For others that do involve a cost, the Government Access to Work scheme might be able to help. Examples of reasonable adjustments in employment An office lowers shelves and door handles so that an employee who uses a wheelchair can reach them. All staff are also told to ensure that boxes, bags and bins are not left in walkways where they might get in the way of the wheelchair user. This means that the office generally looks tidier and there is less risk of anyone tripping over things left lying around. A small law firm employs a secretary who has arthritis in her hands which means she has difficulty typing. Voice activated software is installed on her computer which means she can produce accurate word processed letters and agreements quickly without having to type. A shop allows an assistant who takes medication that makes her drowsy in the mornings to start work and leave work an hour later than the other assistant. This means that the shop is able to stay open later and serve customers on their way home at the end of the day. A café employs a kitchen porter with a learning disability. The owner of the café makes sure that he gets information about health and safety and food hygiene in Easy Read which is simple language with pictures and that everything is explained to him in person as well to ensure he understands it. The Easy Read information and explanations also help other workers who don't speak English as a first language.
  8. 8. 8 What is reasonable? You only have to make adjustments that are reasonable. When deciding if the adjustment is reasonable you should consider: how effective it will be in helping the person do their job whether it is practical to make the adjustment how much disruption, if any, will be caused to your business or other people how much, if anything, the adjustment will cost and how much money you have whether you can get help with making the adjustment and towards its cost from a scheme like Access to Work. The most important thing to remember is that treating everyone the same does not mean that you are treating everyone fairly. The Equality Act requires people to be treated differently according to their needs by making reasonable adjustments for them. 9. Fitness-to-Work Fitness-to-work examinations are objective assessments of the health of employees in relation to theirspecificjobs, in order to ensure they can do the job and will not be a hazard to themselves or others. They should always be conducted with reference to the specific job the worker holds or intendstohold. The circumstances that require such examinations occur at the time of application or considerationforentryintoemploymentandassignmenttoa specificjob (preplacement), return to work after illness or injury (return to work), with continuing disability, as part of an employee assistance program and where, for a variety of reasons, the employee's personal health and the workingconditionsbecomeincompatible. Theymustbe specifically job-related, with judgments of fitnessbeingbasedonthe principle thatthe employees'state of healthinrelationtotheirindividual jobswill notbe hazardousto themselvesorothers.Thisprinciple isacknowledged in various human rightscodes.These examinationsbalance the rightsand obligations of the employee and employer and mustbe conductedina mannerconsistentwithprofessionalcodesof ethics.Itispreferablethat they be undertaken by individuals who are specially trained or well experienced in occupational medicine or occupational health nursing. Simply saying that a person with a disability can be gainfully employed elsewhere is discriminatory or putting some one on light duties for no good reason, this is often described as ‘Office type duties’ e.g. a person with a reduction to their fine motor skills may find Office type work very difficult. Fitness to work is not simply the absence of disability illness or injury nor is unfit to work merely the presence of disability, illness or injury., Fitness-to-workexaminationsare requestedeitheratthe directionof the employerorvoluntarily by the employee. Company-directed examinations occur because company policy or government regulation requires them. In performing these examinations a clear understanding by the health professional,whetherphysicianornurse,of the workingconditionsand activities of the specific job is needed. The occupational health professional judge’s fitness-to-work based upon a medical examinationdictatedbyworkingrequirements. The clinical opinion is reported to the employer in the form of fitness-to-workdeterminationswithoutusingmedical terminologyormakingmentionof a diagnosis. Typically the terms used are fit, unfit, and fit subject to work modifications, with the latter two further qualified as temporary or permanent.
  9. 9. 9 10.Direct’ discrimination Cannot be justified and happens when;-: • A disabled person is treated less favourably than a nondisabled person, whose relevant circumstances are the same or not materially different; and • The treatment is on grounds of disability. Disability-related discrimination is when a disabled person is treated less favourably for a disability-related reason and the treatment cannot be justified. 11. Discrimination by Perception of disability Imposing a ban or restriction simply for displaying a symptom, recently an employee in the Ministry of Defence had a blanket ban imposed for showing signs or symptoms that something may be wrong with them, the medical report indicated that the employee had slurred speech and balance problems. This was used to justify the ban,  Would someone with a lisp and limp be treated in the same way?  Is this treatment proportionate to meet a legitimate aim?  Is it because you think there may be an underlying cause or disability and you don’t want to take the risk or responsibility? 12. Harassment Harassment is any form of unwanted and unwelcome behaviour that has the purpose or effect of: • violating the disabled person’s dignity; or • creating an intimidating, hostile, degrading, humiliating or offensive environment.
  10. 10. 10 13, Basic Ergonomics Ergonomics is a science concerned with the ‘fit’ between people and their work. It puts people first, taking account of their capabilities and limitations. Ergonomics aims to make sure that tasks, equipment, information and the environment suit each worker. To assess the fit between a person and their work, ergonomists have to consider many aspects. These include: ■ the job being done and the demands on the worker; ■ the equipment used (its size, shape, and how appropriate it is for the task); ■ the information used (how it is presented, accessed, and changed); ■ the physical environment (temperature, humidity, lighting, noise, vibration); and ■ the social environment (such as teamwork and supportive management). Ergonomists consider all the physical aspects of a person, such as: ■ body size and shape; ■ fitness and strength; ■ posture; ■ the senses, especially vision, hearing and touch; and ■ the stresses and strains on muscles, joints, nerves. Ergonomists also consider the psychological aspects of a person, such as: ■ mental abilities; ■ personality; ■ knowledge; and ■ experience.
  11. 11. 11 13. Discussion Discus in relation to;- Ergonomics, Activity, Effectiveness, Efficiency and Equity. How policies and practices interact? Adoption of reasonable adjustments as a preferred option 1. When a Manager is confronted by a member of staff who has become a disabled person or indeed an employee who presents with illness or injury which may necessitate consideration of a period of light duties or some other reasonable adjustments on medical grounds do we as an organisation truly have a process that treats individuals the same and fairly according to their needs? Is the treatment proportionate to meet a legitimate aim? 2. Managers will also, unfortunately, be confronted by employees purporting to be suffering injury or illness in order to obtain similar treatment in terms of adjustments to which they are not entitled. It is difficult for managers to assess such individuals because the employee has a right to medical confidentiality therefore they are normally believed at face value. Are our processes robust enough to deal with these situations? 3. At present the tool commonly being used is referral to Occupational Health; asking them to make the decision regarding fitness to work (and often where to work). Are the responses from Occupational Health adequate to meet your duties under the EA10? 4. The Occupational Health nurse, is in a very similar position as the manager and without sight of medical evidence or an understanding of the characteristics of each and every task or procedures undertaken would find it impossible to make a measured assessment. “The individuals Job Description” Is the critical information that we need to give Occupational Health that is sufficient and adequate for them to give a considered opinion, or have been given enough information on the characteristics of the work to give advice for consideration of reasonable adjustments? 5. Where it would appear that there is no commonly recognised process or procedure in place to assist line managers assess and identify the genuine from the inappropriate. This could result in confusion and disruption, especially when the employee granted “light duties” in one department has to move to another or change Line manager and there has been no information passed on identifying the particular characteristics of the tasking that the individual concerned can or cannot carry out. There is often simply a reshuffling of posts leaving some disaffected and feeling hard done by. This would be compounded if the individual on light duties is observed carrying out these duties on overtime? Or the arrangement is simply one of choice/lack of training. Is there room for improvement in communicating information across departments without breaching confidentiality? 6. As in the case of a genuinely disabled person who has safeguards under the law, Could an action plan, in these circumstances, be applied to any employee to ensure everyone is treated consistently?. 7. The basics could be an initial Capability/Risk Assessment (but only if it is being carried out to meet a legitimate aim i.e. that there is a genuine increase in RISK to the individual), This being carried out on the basis of the information provided by the individual; the illness or injury suffered and what duties he/she perceived they might not be able to carry out. Using existing Risk Assessments as a ‘Base Line’ and the established 5 Steps to Risk assessment, updating them as part of the planned assessment programme will make it easier to identify any problematic areas that may require reasonable adjustments to be made or identify training needs,
  12. 12. 12 8. It is important to concentrate on present capabilities rather than what might happen in the future. This is not a medical examination or test of fitness but an examination as to the removal of ‘barriers’ that prevent the person from carrying out certain tasks and duties safely to their fullest capability/capacity. This will necessitate looking at the characteristics of the tasks i.e. long periods of standing, bending and twisting, manual handling and climbing ladders or stairs etc. Do the assumptions we make about peoples character have an undue influence on how we assess their capability? 9. It would be preferable if the person carrying out the R/A is not be the individuals’ own line manager but rather some other suitably competent person, such as the Health & Safety Officer North - Bob Murray or the Line Manger from another shift (may need all LM to take the course?) to ensure fairness and impartiality the individual should have the opportunity to have a “friend” present to monitor these proceedings (Union Health & Safety Rep - who must also be a trained and be a competent person) To ensure the process is carried out fairly and properly both LMs and reps would have to have a good understanding of Equality issues and the rights of individuals. 10. If the individual comes under the provisions of the EA10 or you have reason to believe they do (Perception of a protected characteristic i.e. disability see 23) This Assessment would help identify if any reasonable adjustment are required and/or if a Work Place Assessment is necessary, which could be arranged with the individuals consent Disability Support Unit at Job Centre Plus Glasgow. This would offer the individual and managers the opportunity to ask for the appropriate help and support they need and should receive. Depending upon the results this should lead to the identification of all reasonable adjustments appropriate to the individual concerned or not as the case may be. 11. Reasonable adjustments may pose or be the most problematic, the general principal is one of removing barriers to allow an individual to be as productive as possible and be allowed to carry out the fullest range of activities according to their capabilities. 12. Overtime and call out policies should reflect that there is a need to make reasonable adjustments i.e. it may be necessary to rearrange duties to accommodate a disabled employee.  Adjustments to the workplace to improve access or layout;  giving some of the disabled person’s duties to another person, e.g. employing a temp;  transferring the disabled person to fill a vacancy;  changing the working hours, e.g. flexi-time, job-share, starting later or finishing earlier;  Time off, e.g. for treatment, assessment, rehabilitation;  Training for disabled workers and their colleagues;  Getting new or adapting existing equipment, eg chairs, desks, computers, vehicles;  modifying instructions or procedures, e.g. by providing written material in bigger text.  improving communication, e.g. having visual as well as audible alarms;  providing alternative work (this should usually be a last resort)  allowing a phased return to work;  changing individual's working hours;  providing help with transport to and from work;  Allowing an employee to be absent from work for rehabilitation/ treatment Examples of adjustments to premises include: Examples of adjustments to working arrangements include:
  13. 13. 13  moving tasks to more accessible areas;  Making alterations to premises. Examples of adjustments to a job include:  providing new or modifying existing equipment and tools;  modifying work furniture;  providing additional training;  modifying instructions or reference manuals;  modifying work patterns and management systems;  providing a buddy or mentor;  providing supervision;  reallocating work within the employee's team;  providing alternative work 13. The idea that everyone MUST be able to carry out ALL tasks is discriminatory and illegal. 14. Treating a person with a disability more fairly is not a question of morality but one of Law. A disabled person on restrictions to their duties as a reasonable adjustment should not be discriminated against where an overtime arises in a post they cannot do a further adjustment maybe required e.g. rearranging the dispositions to accommodate. Failure to consider this could result in a claim of ‘FAILURE TO MAKE REASONABLE ADJUSTMENTS it would be for the person to justify their actions and give reasons. 15. In order to maintain medical confidentiality the Risk Assessments and Work Place Assessment should be kept separate from the generic RA’s. 16. Other departments within the establishment may be accessed for advice on reasonable adjustments; BNS Health and Safety have an extensive knowledge and expertise in, for example, working at height and fall arrester systems if these are identified as a reasonable adjustment. IT department may give advice on either hardware i.e. computer keyboards or software that might be of help. 17. However if there is still doubt or dubiety at this juncture, by either the manager or employee, consideration may now be given to refer the matter to Occupational Health. It would then be possible, for the Occupational Health nurse to have access to the assessment documentation, recommendations or conclusions. This would give the health professional a much fuller picture which would better enable them to make any further recommendations that would help the individual in work and would also provide the management with information as to whether or not the individual meets the criteria of disability under the 2010 Equality Act which requires the employer to make reasonable adjustments and treat the individual more favourably according to their needs etc. IT IS ALSO IMPORTANT TO CHECK WHETHER OR NOT THE OUTSIDE AGENT IS CONVERSANT WITH THE RIGHTS OF INDIVIDUALS UNDER THE EQUALITY ACT. DO NOT ASSUME THEY UNDERSTAND the responsibility is yours as a line manager. 18. This process would create a personal record of what additional risks/hazards or problems have been identified for the disabled/injured/ill person at their workplace; what reasonable adjustments were deemed necessary or what adjustments were not reasonable and demonstrate how the adjustments mitigated the risk or problem (removing barriers) thereby enabling the individual to work normally or as normally as reasonably practicable. 19. This documentation would then be a matter of personal record for the individual. The employee’s Line Manager would have access to this information and be required to
  14. 14. 14 take cognisance of these documents and their recommendations. The action or adjustments to be taken for the individual would be clearly set out with an indication for how long the adjustments would remain in place. This would allow for better planning in terms of dispositions, re organising rotations or overtime etc. 20. Time frames are important and it is important that this process is initiated immediately by all line managers’ in order that the disabled person or sick/injured individual receives work related help and support as soon as possible and matters are not allowed to drift, as this can exacerbate health problems for the individual or create new health problems such as anxiety and depression. Be aware; Duty of Care includes mental health also placing someone on one man posts as a reasonable adjustment or easy expedient may cause this person to feel isolated and under stress, recognising this is as important as the initial adjustment. Guidance can be found in ‘Recognising stress in others’ 21. From a business perspective this process and procedure would be a good and positive outcome as it discharges the legal duty in terms of the Equality Act 2010 and should address any issues of vicarious liability; is more likely to get disabled people and others suffering illness or injury back to work quicker in the knowledge that there is an open and transparent process to help them get back to work or to be as productive and safe as is reasonably practicable with the main objective to remove barriers; 22. Determining whether someone falls within the protection of the ACT or Health and Safety? See ACOPs Equality Act 2010. In general it has to be long term i.e. over a year and have a substantial impact on day to day activities (not work related) some conditions are automatically covered or post-scribed at the point of diagnosis. Others are simply obvious. 23. There is a new category covered by the EA10; Perception, if you have reason to believe that someone has a protected characteristic they are covered by the Act even if it is subsequently found that they do not have the protected characteristic. 24. Determining whether to refer to Occupational Health to assess ‘fitness to work’, Fitness to work reports should outline the problem areas and should not be post specific; i.e. unable to stand for long periods should only carry out; seated tasking, no lifting etc. 25. Identifying posts/rotations characteristics; To specify a particular post e.g.’ The North does not identify what the individual can or cannot do and would expose the Organisation Management to claims of negligence if even after not allowing the person to work at the North for example their condition worsened because the characteristics of the work are similar elsewhere e.g. the South. Breach of the HSAW etc. Act 1974. 26. The Occupational health Department follows the same rules that GPs follow when issuing a ‘Fit for work certificate; Without breaching medical confidentiality Occupational health can give an indication of whether an individual can or cannot perform the general characteristics common to all posts safely i.e. walking. Standing. Sitting. Climbing ladders or stairs, being close to toilets / welfare facilities, exposure to adverse weather etc. with an indication if the situation is permanent, short term, long term, intermittent, requires an aid or adjustment, the Manager can then make an objective decision on which Posts are suitable, this may also include rethinking present distribution of duties. 15. What is a risk assessment? A risk assessment is simply a careful examination of what could harm people and how likely this is to happen, so that employers can weigh up whether or not the steps they have taken are
  15. 15. 15 suitable and sufficient to comply with health and safety law. Risk assessments can be carried out in five steps. 1. Identifythe hazards(what,inthe work,couldcause harmto people). 2. Decide whomightbe harmedandhow. 3. Evaluate the risksanddecide onprecautions. 4. Recordthe findingsandacton them. 5. Reviewthe assessmentandupdate if necessary. 16. Risk assessment and disability Step 2 is about ‘who might be harmed’. This means thinking about the workforce, including disabled people. Some employers worry because they don’t understand disability and think it might get in the way of getting the job done. They fear they might break health and safety law. Some disabled people fear that health and safety might be used as an excuse to exclude them from work opportunities or tasks. There can be concern on both sides. By working together, employers and disabled workers can get to grips with disability and health and safety. The process therefore works best when the employer involves the disabled worker and thinks about their individual circumstances. This helps avoid the following:  people making assumptions about disabled people which can lead to poor practice or discrimination;  people hiding an impairment that might have health and safety implications for fear they won’t get or keep a job. 17. PROCESS MAP FOR INDIVIDUALS NOT PROTECTEDUNDER THE EQUALITY ACT 2010
  16. 16. 16 Employee reports an injury,illness, condition or disability INFORMHR ASSESS Carryout a Risk assessment onlyif you have anobjective reasonfordoingso. Do not make assumptions in consultationwith the Employee considerand propose adjustments ASSESS The Risk arrisingfrom the adjustment Does it create a Hazardforthe individualor others AGREE That this is satisfactory, involve the worker IF it is a phased return to work or no Agreement can be reached Send Employee to Occupational health Dept with Risk Assessment Report DiscuseOcc health report againstpost characteristicsdiscuss adjustments Make recommendations these must be objective and proportionate to meet a legitimate aim Review, to ensure things are not being made worse Agree or take further action by referral to senior manager, outside expert adviceon restoringefficiency
  17. 17. 17 18. FIVE STEPS TO RISK ASSESSMENT 19. FIVE STEPS TO DISABILITY RISK ASSESSMENT IDENTIFY THE HAZARD ie the characteristicsof the task ASSESS Who might be harmed Assess the Risk RISK = PROBABILITY x CONSEQUENCES ASSESS AND IMPLIMENT CONTROL MEASURES TO REDUCE OR ELIMINATE THE RISK RECORD AND REVIEW ASSESS THE HAZARD (THE DISABILITY IS NOT A HAZARD) Only to be carried out for an objective reason to meet a legitimate aim ASSESS WHO MIGHT BE HARMED AND HOW Do not make assumptions ASSESS THE RISK Risk = probability x consequences WORK PLACE ASSESSMENT FOR Capability and Capacity, reasonable adjustments through OH or JOB CENTER PLUS LEGAL REQUIREMENT TO MAKE REASONABLE ADJUSTMENTS GET EXPERT ADVICE ensure the adjustments do not create a new hazard RECORD AND REVIEW
  18. 18. 18 20. .DISPUTES Where there isa dispute,every effort should be made to resolve this at the lowest level however where there is a question of whether or not enough has been done this may involve outside agenciesforexpertadvice. The question of whether or not a disability is covered by the EA 10 may ultimatelyonly be resolved by the courts. Where the adjustment requires specialist equipment or training, expert advice taken from e.g. Job Centre Plus DSU. The important thing to remember is there is no such thing as a Generic system; each person must be treated as an individual. Simply banningsomeone fromanactivityortask mayappear to be the safest option but it could also be an illegal option under part 5 of the EA 10. Complacency or doing nothing is not an option either. Personal responsibility is not only the moral thing to do but also LAW failure may result in a Tort or civil action where individuals face personal liability and may be ordered to pay compensation. 21. DOs Involve disabled employees – appreciate the skills and insight they may have to find the best outcome; Work together with disabled applicants and employees if it is necessary to assess whether their disability affects health and safety and, if so, to what extent. In other words, work together when doingriskassessmentsthatconsiderthe effects of the person’s disability and when thinking about the ‘reasonable adjustments’ needed for them to enter or stay in work; Take account of any adjustments already in place, so your conclusions are based on any remaining risks, if they exist; Make new ‘reasonable adjustments’ to overcome remaining risks, remembering to work with the disabled person to tailor the adjustments to their needs; Be sensitive and timely to support the disabled person and avoid delays. Where delay can’t be helpedyoumayhave tomake short-termtemporaryarrangementssotheyare notat a disadvantage in their work; Involve others,suchasspecialists(e.g. Disability Employment Advisers, Occupational Health or the employee’srepresentative oradvocate),if youneed to gain a better understanding. Many disabled people are expertsintheirdisability,butothers,for instance people withnew to a long-term health condition, may be less familiar. Attend professional disability-awareness training if needed; Check those advisers, such as safety consultants or the occupational health (‘works’) doctor, understand disability discrimination; Share withthe disabledperson(andtheirrepresentative,if they have one) anyspecialistinformation to give them a say in its contribution to the assessment; Make sure you can give good reasons for decisions you make about how to manage health and safety risks in relation to a disabled person, otherwise you risk discriminating illegally. Following this guide will help;
  19. 19. 19 Create a working environment that allows disabled people to feel comfortable talking about their disability; Be sensible.Rememberourlivescanneverbe free from risks and, for disabled people, overcoming themcan be harder.Thisdoesn’tmeanbeingoverlyprotective. You should enable disabled people to enter and stay in work. So check with the person that workplace adjustments are a help not a hindrance. 22. Don’t: Make assumptions about the health and safety implications of a person’s disability as it might not make a difference to workplace risks. If you do a risk assessment with no good reason you might discriminate illegally Have ‘blanket’policiesthattreatdisabledpeople differently. For instance, a ban on applicants with, say,epilepsy,diabetesormental healthproblemsislikelytobe direct discrimination. Be aware that disabilities often affect people in very individual ways; Have unnecessary criteria for a job, e.g. the need for a Group 2 driving licence when a Group 1 licence would do. This could unfairly discriminate Insistonemployeesrevealingdetailsof theirdisability.Disabledpeople have rightsto confidentiality However, they also have health and safety responsibilities, so may have to tell you about the consequencesof aconditionif there are health and safety effects. Then they can work with you on ‘reasonable adjustments’. THEIR RIGHTS ARE ALSO YOUR RIGHTS AND RIGHTS EVEN IF ABUSED ARE STILL RIGHTS AND THE COURTS ARE THERE TO UPHOLD THESE RIGHTS
  20. 20. 20 23 Acknowledgments Equality Act 2010 Health and Safety at Work Etc. Act 1974 MoD Strategic Equality Objectives 2012 - 16 MoD Diversity Policy The Data Protection Act Promoting Equality, Valuing Diversity: A Strategy for the Civil Service HSE Employee Disability Guidance MINISTRY OF DEFENCE HEADQUARTERS SURGEON GENERAL Dr Peter Griffin BSc MB MRCP MFOMCMIOSH FIIRSMMATSS FCEM DRCOG Dip IMC Dip Couns FRSPH FASI MIW MoD Disability Toolkit & EQUALITY ANALYSIS Guidance and Template CCR;-International Research Project on Job Retention and Return to Work Strategies for Disabled Workers: Key Issues;-Patricia Thornton University of York, UK CCR;- P. J. TAYLOR, B.Sc., M.D., M.R.C.P., D.I.H. Senior Medical Officer, Shell U.K. Limited, Shell Haven, Stanford-le-Hope, Essex, AND A. J. FAIRRIE, V.R.D., M.R.C.S., L.R.C.P. General Practitioner, Corringham, Essex CCR; - FACTORS DETERMINING JOB RETENTION AND RETURN TO WORK FOR DISABLED EMPLOYEES: A QUESTIONNAIRE STUDY OF OPINIONS OF DISABLED PEOPLE’S ORGANIZATIONS IN THE UK Shirley Sirvastava1 and M. Anne Chamberlain. MoD JSP763 & JSP375 HSE Information Services Caerphilly Business Park Caerphilly CF83 3GG Access to Work Jobcentre Plus Telephone: 0800 0055 6688. The Equality and Human Rights Commission (EHRC)
  21. 21. 21 Telephone: 08457 622633 Textphone: 08457 622644 Acas (Advisory, Conciliation and Arbitration Service) Acas has a range of services which can help individuals or groups of employees to avoid or resolve problems and disputes in the workplace. The Acas helpline offers free, confidential and impartial guidance on employment rights and workplace issues. They provide general information on employment rights and responsibilities and can also help employees and employers who are involved in an employment dispute to identify practical ways of sorting out the problem. If an employerandanemployeeneed external help to resolve a problem, Acas can often assist them to find a solution that is acceptable to both. Acas (Advisory, Conciliation and Arbitration Service) Contact point Acas (Advisory, Conciliation and Arbitration Service) Address Euston Tower 286 Euston Road London NW1 3JJ Phone number Helpline 08457 474 747 Switchboard 08457 383 736Text phone 08456 06 100 Website (opens new window) Opening Hours Monday to Friday 8.00 am to 8.00 pm, Saturday 9.00 am to 1.00 pm (helpline)
  22. 22. 22 Glossary / Equality jargon buster. Accessible venue A building designed and/or altered to ensure that people, including disabled people, can enter and move round freely and access its events and facilities. Act, A law or piece of legislation passed by both Houses of Parliament and agreed to by the Crown, which then becomes part of statutory law (ie is enacted). Affirmativeaction,Positive stepstakentoincrease the participationof under-represented groups in the workplace. It may encompass such terms as positive action and Positive discrimination, The term,whichoriginatesfromthe UnitedStatesof America, is not used in the Equality Act. Agent, A person who has authority to act on behalf of another ('the principal') but who is not an employee or worker employed by the employer. Alternative format, Media formats which are accessible to disabled people with specific impairments, for example Braille, audio description, subtitles and Easy Read. Associated with, This is used in a situation where the reason a job applicant or worker is discriminated against is not because they have a particular protected characteristic, but because theyare ‘associatedwith’anotherpersonwhohasthatprotectedcharacteristic,eg the otherperson is their friend or relative. For example, an employer decides not to recruit a non-disabled worker because theyhave a disabledchild.Thisissometimesreferred to as discrimination ‘by association’. Association by, As in ‘discrimination by association’. See associated with. Auxiliary aid, Usually a special piece of equipment to improve accessibility. Auxiliary service, A service to improve access to something often involving the provision of a helper/assistant. Barriers, This term refers to obstacles which get in the way of equality for disabled workers and other workers put at a disadvantage because of their protected characteristics. Unless explicitly stated, ‘barriers’ does not exclusively mean physical barriers. For more on barriers in relation to disabled workers, see duty to make reasonable adjustments. Burdenof proof, Thisrefersto whether,inanEmploymentTribunal,itisforthe workerto prove that discrimination occurred or it is for the employer to disprove it. Broadly speaking, a worker must prove facts which, if unexplained, indicate discrimination. The burden of proof then shifts to the employer to prove there was no discrimination. If the employer cannot then prove that no discrimination was involved, the worker will win their case. Code of Practice, A statutory guidance document which must be taken into account by courts and tribunals when applying the law and which may assist people to understand and comply with the law.
  23. 23. 23 Comparator, Direct discrimination occurs when an employer treats a job applicant or worker less favourably than they treat or would treat another worker in similar circumstances because of a protected characteristic. The worker with whom the job applicant or worker compares their treatmentiscalleda‘comparator’.Sometimesthereisnoactual comparator, butthe workercan still claimthat anotherworkerwithouttheirprotectedcharacteristicwouldhave been treated better by the employer. This is a ‘hypothetical’ comparator. Contract worker, Under the Equality Act, this has a special meaning. It means a person who is sent by their employer to do work for someone else (the ‘principal’), under a contract between the employerandthe principal.Forexample,apersonemployedbyanagencyto workfor someone else (‘anend-user’) orapersonemployedbyaprivatisedcompanytoworkoncontractedout servicesfor a publicauthority,maybe a contract worker.The Equality Act makes it unlawful for the principal to discriminate against the contract worker. Data protection, Safeguards concerning personal data are provided for by statute, mainly the Data Protection Act 1998. DirectdiscriminationLessfavourabletreatmentof apersoncomparedwith another person because of a protected characteristic. This may be their own protected characteristic, or a protected characteristic of someone else, eg someone with whom they are associated. It is also direct discriminationto treat someone less favourably because the employer wrongly perceives them to have a protected characteristic. Disability, A person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on that person's ability to carry out normal day-to-day activities. Disabledperson, Someonewhohasa physical ormental impairmentthathasa substantial and long- term adverse effect on their ability to carry out normal day-to-day activities. Disadvantage A detrimentorimpediment –somethingthatthe individual affectedmight reasonably consider changes their position for the worse. DiscriminationarisingfromDisabilityWhena person is treated unfavourably because of something arisinginconsequence of theirdisability,e.g. Anemployerdismissesaworkerbecause of the length of time they have been on sick leave. The reason the worker has been off sick is because of their disability.If itisobjectivelyjustifiable totreata person unfavourably because of something arising from their disability, then the treatment will not be unlawful. It is unlikely to be justifiable if the employer has not first made any reasonable adjustments. Disproportionatelylow,Referstosituationswhere people withaprotectedcharacteristic are under- represented compared to their numbers in the population or in the relevant workplace. Diversity- Thistendstobe usedtoreferto a groupof people withmanydifferent types of protected characteristic, e.g. people of all ages, religions, ethnic background etc. Duty to make reasonable AdjustmentsThisdutyariseswhere (1) aphysical feature of the workplace or (2) a provision, criterion or practice applied by an employer puts a disabled worker or job
  24. 24. 24 applicant at a substantial disadvantage in comparison with people who are not disabled. It also applies where a worker or job applicant would be put at a substantial disadvantage but for the provision of an auxiliary aid. The employer has a duty to take reasonable steps to avoid that disadvantage by (i) changing provisions, criteria or practices, (ii) altering, removing or providing a reasonable alternativemeansof avoidingphysical features,and(iii) providingauxiliaryaids.Inmany situations,anemployermusttreatthe disabledworkerorjobapplicantmore favourablythanothers as part the reasonable adjustment.More detail of the law and examplesof reasonableadjustments are set out in sub- section 3 of this guide. Employee ‘employee’isusedonlytorefertothe definition in the Employment Rights Act 1996, ie a person who works under a contract of employment. This definition is fairly limited. It is only employees in this sense who have certain rights, eg to have a written statement of employment particulars; to use the formal procedure to request flexible working; and to claim unfair dismissal. The EqualityAct uses the word‘employee’more widely,toincludeapersonworkingona contract of employment or a contract of apprenticeship or a contract personally to do work; or a person who carries out work for the Crown or a relevant member of the Houses of Parliament staff. To avoid confusionwiththe narrowerdefinitionof ‘employee’ applicable under the Employment Rights Act, thisguide referstosomeone inthiswidercategoryof workerscoveredbyequalitylaw as a ‘worker’. See worker. Employment service provider A person who provides vocational training and guidance, careers services and may supply employers with workers. Employmentservices,- Vocationaltrainingandguidance,findingemploymentfor people, supplying employers with workers. Employment Tribunal, Cases of discrimination in work situations (as well as unfair dismissal and most other employment law claims) are heard by Employment Tribunals. A full Hearing is usually handled by a three person panel – a Judge and two non-legal members. Equality policy, A statement of an organisation’s commitment to the principle of equality of opportunity in the workplace. Equality training- Training on equality law and effective equality practice. ET- Abbreviation for Employment Tribunal. Exceptions Where, in specified circumstances, a provision of the Act does not apply. Flexible working Alternative workpatterns,suchasworkingdifferenthoursorat home, including to accommodate disability or childcare commitments. See also right to request flexible working. Harass To behave towards someone in a way that violates their dignity, or creates a degrading, humiliating, hostile, intimidating or offensive environment for them. Harassment Unwanted behaviour that has the purpose or effect of violating a person’s dignity or createsa degrading,humiliating,hostile, intimidating or offensive environment for them. See also sexual harassment.
  25. 25. 25 Impairment, A functional limitationwhichmayleadtoa personbeing defined as disabled according to the definition under the Act. See also disability. Indirectdiscrimination, Where anemployerapplies(orwouldapply) an apparently neutral practice, provisionorcriterionwhichputspeoplewith a particular protected characteristic at a disadvantage comparedwith others who do not share that characteristic, unless applying the practice, provision or criterion can be objectively justified by the employer. Instruction to discriminate When someone who is in a position to do so instructs another to discriminate against a third party. For example, if a GP instructed their receptionist not to register anyone who might need help from an interpreter, this would amount to an instruction to discriminate. Job evaluation scheme See job evaluation study Job evaluation study This is a study undertaken to assess the relative value of different jobs in an organisation,,usingfactorssuchas effort,skill anddecision-making. This can establish whether the work done by a woman and a man is equal, for equal pay purposes. See also equal work. Judicial review, A procedure by which the High Court supervises the exercise of public authority power to ensure that it remains within the bounds of what is lawful. Less favourably, Worse – so ‘less favourable treatment’ means the same as ‘worse treatment’. Liability Legal responsibility. An employer is legally responsible for discrimination carried out by workers employed by you or by your agents, unless you have taken all reasonable preventative steps. Monitoring- Monitoring for equality data to check if people with protected characteristics are participatingandbeingtreatedequally. For example, monitoring the representation of women, or disabled people, in the workforce or at senior levels within organisations. More favourablyTotreat somebodybetterthan someone else.This is unlawful under the Act if it is because of a protected characteristic except in very limited circumstances. The law requires an employertomake reasonable adjustmentsforadisabledpersontoremove anydisadvantage caused by their disability, and this often requires treating them more favourably. An employer can also chose to treat a disabled worker more favourably in other ways, e.g. by automatically shortlisting them for a job, even if they are not at a particular disadvantage on the relevant occasion. The law can also require pregnant workers to be treated more favourably in some circumstances. Normal retirement age- Thisis the retirementage at which, in practice, employees in a particular job and workplace would normally expect to retire. Normal retirement age can differ from the contractual retirement age. If it is under 65, it must be objectively justified. Objective justification See objectively justified. Objectively justified This phrase is a shorthand way of referring to the legal test of objective justification, i.e. that the employer’s treatment of the worker must be a proportionate means of achievingalegitimate aim. The Act uses this test in several situations. For example, once a worker
  26. 26. 26 has proved that the employer has treated them unfavourably because of something arising from theirdisability,orthatthe employerhasindirectlydiscriminated against them or that the employer has directly discriminated against them because of age, the employer can defend the claim by proving their treatment (i) is in order to achieve a legitimate aim, and (ii) is proportionate, ie appropriate andnecessary.If there isa lessdiscriminatoryway of achieving the same aim, it should be adopted. See also proportionate. Occupational healthOccupationalhealthhasnolegal meaninginthe contextof the Equality Act, but it can be used to refer to the on-going maintenance and promotion of physical, mental and social wellbeingfor all workers. The phrase is often used as a shorthand way of referring to occupational health services provided by the employer. Occupational health A health professional providing occupational health practitioner services. Occupational health service, This usually refers to doctors or nurses employed in-house by an employer or through an external provider who the employer may ask to see workers and give medical advice on their health when workplace issues arise. Occupational pension A pension which an employee may receive after retirement as a contractual benefit. Occupational requirement An employer can discriminate against a worker in very limited circumstanceswhere itisan ‘occupational requirement’tohave aparticularprotectedcharacteristic and the applicationof the requirementisobjectivelyjustified.There are two particular occupational requirement exceptions where employment is for the purposes of an organised religion or the employer has an ethos based on religion or belief, but very specific requirements need to be fulfilled. Office-holders, There are personal and public offices. A personal office is a remunerated office or post to which a person is appointed personally under the direction of someone else. A person is appointedtoa publicoffice byamember of the government, or the appointment is recommended by them, or the appointment can be made on the recommendation or with the approval of both Houses of Parliament, the Scottish Parliament or the National Assembly for Wales. Past disability A person who has had a disability as defined by the Equality Act. PerceptionThisrefersto a belief that someone has a protected characteristic, whether or not they do have it. Discrimination because of a perceived protected characteristic is unlawful. The idea of discrimination because of perception is not explicitly referred to in the Equality Act, but it is incorporated because of the way the definition of direct discrimination is worded. Physical barriers A physical feature of a building or premises which places disabled people at a substantial disadvantage compared to non-disabled people when accessing goods, facilities and services or employment. See also physical features. Physical features, Anything that forms part of the design or construction of a place of work, including any fixtures, such as doors, stairs etc. Physical features do not include furniture, furnishings, materials, equipment or other chattels in or on the premises.
  27. 27. 27 Positive action, If an employer reasonably thinks that people sharing a certain protected characteristic suffer a disadvantage connected to that characteristic or have different needs, or if their participation in work or other activity is disproportionately low, an employer can take any action (which would otherwise be discrimination against other people) which is a proportionate means of enabling or encouraging those people to overcome or minimise their disadvantage or to participate inworkor otheractivitiesormeetingtheir needs. For example, an employer can put on trainingcoursesexclusivelyforworkerswithaparticularprotectedcharacteristic.Anemployerisnot allowedtogive preference toaworker in recruitment or promotion because they have a protected characteristic. Positive discrimination, treating someone with a protected characteristic more favourably to counteract the effects of past discrimination. It is generally not lawful, although more favourable treatmentof workersbecause of theirdisability is permitted if the employer so wishes. Moreover, the duty to make reasonable adjustments may require an employer to treat a worker more favourably if that is needed to avoid a disadvantage. Pre-employment disability generally, an employer must not ask about disabilities or and health enquiriesthe healthof ajobapplicantbefore theyhave be offeredthe job.If the employer does ask such questions and then fails to offer the applicant the job, the fact that the employer made such enquiries will shift the burden of proof if the applicant brings a claim for disability discrimination. The Equality and Human Rights Commission can also take legal action against the employer if such enquiries are wrongly made. More detail is set out in the guide, ‘What equality law means Principal, In the context of a contract worker, this is someone who makes work available for a workerwhoisemployedbysomeoneelseandsuppliedbythat employer under a contract between the employer and the principal. See contract worker. Procurement,The termusedinrelationtothe range of goods andservicesapublicbodyor authority commissions and delivers. It includes sourcing and appointment of a service provider and the subsequent management of the goods and services being provided. Proportionate, This refers to measures or actions that are appropriate and necessary. Whether somethingisproportionateinthe circumstanceswill be aquestionof fact and will involve weighing up the discriminatoryimpactof the actionagainstthe reasons for it, and asking if there is any other way of achieving the aim. Protected characteristics, These are the grounds upon which discrimination is unlawful. The characteristicsare:age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Provision, Criterion or Practice Identifying a provision, criterion or practice is key to establishing indirectdiscrimination.Itcaninclude,forexample,anyformal or informal policies, decisions, rules, practices, arrangements, criteria, conditions, prerequisites or qualifications. Publicauthority a 'public authority' means: government departments, local authorities, courts and tribunals, health authorities and hospitals, schools, prisons, and police.
  28. 28. 28 Note that only those public authorities listed in Schedule 19 to the Equality Act 2010 are subject to the public sector equality duty. Publicbodies, 'publicbodies'includes public authorities (as above) as well as organisations which have a role in the processesof national governments but are not a government department or part of one. They operate to a greater or lesser extent at arm's length from Ministers.-departmental government body or an inspectorate. This is not an exhaustive list. Public functions, A 'public function' for the purposes of this Guidance is any act or activities of a publicnature carriedout by a public authority or public body or by the private or voluntary sectors which is not already covered by the other sections of the Act dealing with services, housing, educationandemployment.Specifically,inrelation to the private and voluntary sectors it is any act or activities carried out on behalf of the state. Examples of public functions include: determining frameworks for entitlement to benefits or services;lawenforcement;receivingsomeoneintoprisonorimmigrationdetentionfacility;planning control;licensing;parking controls; trading standards; environmental health; regulatory functions; investigation of complaints; child protection. This is not an exhaustive list. Any act or activity undertaken by a public authority in relation to delivery of a public service or carryingout dutiesorfunctionsof a public nature e.g. the provision of policing and prison services, including, government policy-making or local authority planning services. Public sector equality duty The duty on a public authority when carrying out its functions to have due regard to the needtoeliminateunlawful discrimination and harassment, foster good relations and advance equality of opportunity. Questions procedure, A discrimination law procedure whereby written pre-action questions are issuedtothe respondent, i.e. the person or organisation against whom a discrimination claim may be made. The questions are usually put onto a standard written form which is often called a ‘questionnaire’. Reasonable adjustment, See the duty to make reasonable adjustments. RegulationsSecondarylegislationmade underanAct of Parliament(or Europeanlegislation) setting out subsidiary matters which assist in the Act's implementation. Retirement age, The age at which an employee retires or is expected to retire. This may be the default retirement age of 65 (until abolished on 1 October 2011), or an age which is set in the employee’s contract of employment or the normal retirement age in that employment. The employer may also impose a retirement age on workers who are not employees, but this must be objectivelyjustifiedevenif itis65 or above .rightto requestflexible workingEmployeeswithatleast 26 weeks’ service have the right to request flexible working under a formal procedure in order to care for children or certain adult Relatives. This is simply an entitlement to go through a formal procedure to have the request considered in a meeting and to receive written reasons for any refusal. The substantive righttobe allowedtoworkflexiblyforcare reasonsapplies more widely to workers and is covered by indirect sex discrimination law under the Equality Act.
  29. 29. 29 Service complaint,Where the discriminationoccurredwhile the worker was serving as a member of the armed forces, an employment tribunal cannot decide the claim unless the worker has made a service complaint about the matter which has not been withdrawn. Service provider Someone (including an organisation) who provides services, goods or facilities to the general public or a section of it. Sex, This is a protected characteristic. It refers to whether a person is a man or a woman (of any age). Sexual harassment Any conduct of a sexual nature that is unwanted by the recipient, including verbal, non-verbal and physical behaviour, and which violates the victim's dignity or creates an intimidating, hostile, degrading or offensive environment for them. Sexual orientationWhetheraperson'ssexual attractionistowardstheirownsex,the opposite sex or to both sexes. Single-sex facilities, Facilities which are only available to men or to women, the provision of which may be lawful under the Equality Act. Stakeholders, People with an interest in a subject or issue who are likely to be affected by any decision relating to it and/or have responsibilities relating to it. Substantial, Thiswordtendstocome up mostin connectionwiththe definitionof disability and the duty to make reasonable adjustments for disabled workers. The Equality Act says only that ‘substantial’meansmore thanminorortrivial. This means that disabled workers do not need to be put at a huge disadvantage before an employer’s equality duties are triggered. Terms of employment The provisions of a person’s contract of employment, whether provided for expressly in the contract itself or incorporated by statute, custom and practice or common law etc. Textphone,A type of telephone for Deaf or hard of hearing people which is attached to a keyboard and a screen on which the messages sent and received are displayed. Third party harassment, This is where workers are harassed by members of the public (such as customers) or by other people who the employer does not employ (such as suppliers). If an employerisaware thatone of theirworkershasbeensubjectedtoharassmentbythird partiesonat leasttwooccasions,the employerwill be legally responsible for any further third party harassment unless the employer takes all reasonable steps to prevent it. Transsexual person,Referstoapersonwhohas the protectedcharacteristicof genderreassignment. This may be a woman who has transitioned or is transitioning to be a man, or a man who has transitioned or is transitioning to be a woman. The law does not require a person to undergo a medical procedure tobe recognisedasatranssexual person.Once atranssexual personhas acquired a genderrecognitioncertificate,itis probably the case that they should be treated entirely as their acquired gender. Tribunal, See Employment Tribunal
  30. 30. 30 Two tickssymbol, A signawardedbyJobcentre Plustoemployerswhoare positive aboutemploying disabled people and are committed to employing, keeping and developing disabled staff. UK Text Relay Service, Text Relay is a national telephone relay service for deaf, deafened, hard of hearing,deaf blindandspeech-impairedpeople.Itletsthem use a textphone to access any services that are available on standard telephone systems. Unfavourably, The term is used (instead of less favourable) where a comparator is not required to show that someone has been subjected to a detriment or disadvantage because of a protected characteristic– for example inrelationtopregnancyandmaternitydiscrimination,or discrimination arising from disability. Vicarious liability, This term is sometimes used to describe the fact that an employer is legally responsible for discrimination carried out by its employees. See also liability. Victimisation,Subjectingapersontoa detrimentbecause theyhave done aprotected act or there is a belief thattheyhave done aprotectedact i.e. bringing proceedings under the Equality Act; giving evidence orinformationinconnectionwithproceedingsunderthe Act;doinganyother thing for the purposesorin connectionwiththe Act;makinganallegationthata personhas contravened the Act; or making a relevant pay disclosure. Victimise, The act of victimisation. Vocational service, A range of services to enable people to retain and gain paid employment and mainstream education. Vocational training, Training to do a particular job or task. WORKSTEP, The WORKSTEP employment programme provides support to disabled people facing complex barriers to getting and keeping a job. It also offers practical assistance to employers.