New rules governing disability discrimination in the workplace could create a minefield for unwary employers, warns Birmingham employment law specialist, Andrew Owen.
Amendments to the Disability Discrimination Act 2005 that came into force this month extend legal protection to those with serious, life-threatening illnesses from the date of their diagnoses, rather than from the time when their capability to work starts to become impaired.
Mr Owen, a partner at Midlands law firm Needham & James, says employers now face the highly sensitive issue of ascertaining the state of their employees' health at a time charged with emotion - or leave themselves vulnerable to the risk of legal action in the event of a discrimination claim.
He said: "Most people would support moves to discourage firms from dismissing people at a time when they are coming to terms with a diagnosis of an illness such as cancer, HIV or multiple sclerosis.
"However, according to an ACAS report, there is already concern among employers over how far they are obliged, under the DDA, to find out about an employee's medical condition or disability.
"This is compounded by employees' worries about how far they are required to reveal their conditions to an employer.
"The new rules appear bound to add to the confusion, to the detriment of employment relations."
Under the DDA, the definition of a disabled person is someone who has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. It is the employer's duty is to make reasonable adjustments to ensure that the employee, or potential employee, is not substantially disadvantaged when it comes to recruitment, promotion, dismissal or redundancy.
The DDA sets out a list of the steps employers may have to take in order to avoid claims. These include adjusting premises, reallocating duties, transferring jobs or sites, altering hours, giving training, allowing time off, providing equipment, providing a reader or interpreter, or similar support.
According to ACAS, more cases were brought under the employment provisions of the DDA in its first year than there were under either the employment provisions of the Sex Discrimination Act or Race Relations Act in their first years.
Mr Owen said: "There is no doubt that the law relating to disability discrimination is creating a serious risk for employers.
"We are advising employers to make enquiries of all employees and prospective employees as to their state of health but make sure employees know this is for their benefit rather than detriment.
"Employers should strive to create and atmosphere of trust by ensuring that there is transparency in their dealings with their employees."
The recent amendment to the DDA extends the rights of people with mental health conditions by dropping the requirement to have a 'clinically well-recognised' condition.
It also includes the extension of the DDA to private clubs with 25 or more members, sanctions for publishers of discriminatory advertisements, and new protection for local authority councillors. ..SUPL: