Injury and employment

1.    Know what questions cannot be asked at interview 

Employers, in general, cannot ask job applicants any questions relating to health or disability. They should not ask this on an application form or request this information as part of a CV or covering letter. Instead, the employer’s focus should be on whether you have the relevant skills, qualities and experience to do the job.

An exception to this is that an employer can ask a question to find out if you need any reasonable adjustments to be made to the recruitment process itself. The employer should not use this information as part of the recruitment process.

If you do think that a prospective employer is asking questions that they should not be, you are entitled to refuse to answer if you feel able to (although this can of course be very difficult in the moment). It would be advisable to make a note of the questions you have been asked as soon as possible after the interview finishes. You can then get legal advice via expert employment solicitors, like us Royds Withy King. Alternatively, you can call a free ACAS helpline 0300 123 1100 – although ACAS advisers can only discuss your options, they cannot give specific legal advice.

2.    Take time to consider your needs in a workplace

Achieving equality does not always mean treating every person the same. In order to achieve equality in the workplace for employees with disabilities, the removal of physical barriers and provision of additional support will be important. There is therefore a positive duty on employers to be proactive and make reasonable adjustments for people with disabilities.

The term “reasonable adjustments” is very broad, reflecting the very broad nature of support that can assist people with disabilities. However, to help illustrate what could be done, some examples include:

-      A job involves limited travel.

The employer has specified that a driving licence is required, however the applicant who is best for the job is an applicant who has cerebral palsy and has no driving licence. They could easily and cheaply do the travelling involved other than by driving and it is likely to be a reasonable adjustment for the employer to let them do so. It would probably be discriminatory to insist on the job specification and reject someone for purely the reason of not having a licence

-      Working manuals and instruction policies.

The format might need to be modified for some workers (such as being produced in Braille or on audio CD) and instructions for people with learning disabilities might need to be conveyed orally with individual demonstration or in Easy Read.

-      Working arrangements

The working day might need to be structured in a certain way to support a worker with autism. As part of the reasonable adjustment, it is the responsibility of the employer to make sure that other workers cooperate with this arrangement.

Employers are not required to do more than it is reasonable for that particular organisation to do. What is reasonable will depend on the size, nature, financial and other resources of the organisation.

However, if you can show that there were barriers that the employer should have identified and it was possible that reasonable adjustments could have been to reduce or eliminate those barriers, and the employer does nothing, you can bring Disability claim against your employer for the failure to make reasonable adjustments.

3.    Steps you can take to protect yourself

1.    Communication.

Often a manager or employer does not appreciate the issue or understand how it can be solved. In our experience an employer and its senior management want to do the right thing and there can be miscommunication or mistakes being made by juniors or inadvertently.

Consider discussing your concerns with the organisation, either directly or perhaps with the support of a suitable colleague to try to resolve it informally

2.    Keep an evidence trail

It is helpful to have things written down immediately after they occur, whether in a book or in an email sent to yourself to look back on and as an evidence trail.

Make a prompt note of what exactly was said or done, by whom, where and when. Also make a note of any witnesses who saw it, or you discussed the matter with at that time. It would be useful to have this in writing as fresh contemporaneous evidence at the time when it occurred to refer back as often recollections may vary.

3.    Keep a note of relevant dates and deadlines.

You need expert legal advice on deadlines. Workplace discrimination Employment Tribunal claims usually must be made within three months (less one day) of the claimed unlawful discrimination taking place.

If you are complaining about a failure to do something though (such as failure to make reasonable adjustments) the time starts from the day the employer decides not to take the action.

4.    Take out Legal Expenses insurance today in advance of an issue.

Legal Expenses Insurance (LEI) is a type of insurance you can buy alongside or as part of your home or other insurance. It will help protect you against the costs of making a claim.

Many LEI policies will include cover for future employment disputes. The cost can be as little as £30 but potentially may give you access to £50,000 to £100,000 worth of legal advice.

Legal Expenses Insurance can be a valuable resource in the unfortunate event that legal action is needed to protect your employment rights.

Speak with your insurer or the Which? Guide “Legal Expenses Insurance: is it worth buying?” for further information.