Disability

There are certain legal rights and protections for “disabled” employees under the Isle of Man’s Equality Act 2017. Some conditions are automatically a “disability”, such as cancer, Multiple Sclerosis and HIV[1]. In other cases, whether a condition amounts to a disability depends on the application of the relevant legal “tests”.

Essentially, for a disability to be established under the law requires the following:

• a physical or mental impairment;
• which is both substantial and long term; and which
• adversely affects an individual’s ability to carry out normal day-to-day activities.

An impairment can cover obvious physical conditions (e.g. broken arm, sight loss as evidenced by use of a walking stick or service dog etc), as well as cognitive or learning difficulties, plus “hidden” disabilities and mental “unwellness”.

“Long term” means a condition that has lasted, or is expected to last, 12 months, or which is likely to last for the rest of the affected person’s life[2].

As well as disabled employees being protected from forms of direct and indirect discrimination at work, employers are under a duty to make reasonable adjustments to reduce or eliminate a substantial disadvantage which a disabled employee experiences. This may require adjustments to a practice or policy, provision of an auxillary aid, or addressing a physical feature of the employer’s premises.

For some types of claim based on disability, the employer’s knowledge is relevant – at least as to the facts of the disability; it does not necessarily matter that the employer is unaware of the legal definition of a “disability” or that there is no formal medical diagnosis. Further, an employer may have actual knowledge of such matters or, alternatively, constructive knowledge, which is where they could reasonably be expected to have known about the disability.

Employees who have progressive conditions and/or who become too unwell or incapacitated to work require particular consideration and support. An employer does not have to keep an employee on indefinitely if they are unable to perform their duties, but it is important to follow a fair process in dealing with such cases and obtain medical evidence, where necessary, to inform employment decisions. Some employers offer permanent health insurance (also called salary continuance or long-term disability benefit) – this provides replacement of income where an employee is unable to work due to illness or injury for more than a minimum period.

In our equality law series, we cover the protected characteristic of “disability” and, in further detail, the legal protections and rights of disabled workers.

Employers should also consider disabled employees and visitors to their premises who have additional needs when it comes to undertaking risk assessments and drafting health & safety procedures.

See also related topics under “Sickness & Capability”.

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References:-

[1] Schedule 1 to the Equality Act 2017, paragraph 6

[2] Schedule 1 to the Equality Act 2017, paragraph 2(1)

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Useful Resources:-

https://www.gov.im/media/1367732/271119-equality-act-2017-guidance-on-the-definition-of-disability.pdf