HSE Health & Safety

Executive

The extent of use of health and safety requirements as a false excuse for not employing sick or disabled persons

Prepared by IRS Research for the Health and Safety Executive and the Disability Rights Commission 2003

RESEARCH REPORT 167

HSE Health & Safety

Executive

The extent of use of health and safety requirements as a false excuse for not employing sick or disabled persons

Jennifer Hurstfield, Becky Allen, John Ballard, Jackie Davies, Peter McGeer and Linda Miller

IRS Research 18-20 Highbury Place

London N5 1QP

IRS Research was commissioned to conduct a research project on behalf of the Health and Safety Executive and the Disability Rights Commission. The aim of the project was to establish the nature and extent of the problem of health and safety requirements being used as a ‘false excuse’ for not employing or continuing to employ disabled people or people with an injury or ill-health condition.

The research was conducted between April 2002 and February 2003 and comprised several interrelated elements.

This report and the work it describes were funded by the Health and Safety Executive (HSE). Its contents, including any opinions and/or conclusions expressed, are those of the authors alone and do not necessarily reflect HSE policy.

HSE BOOKS

© Crown copyright 2003

First published 2003

ISBN 0 7176 2775 6All rights reserved. No part of this publication may bereproduced, stored in a retrieval system, or transmitted inany form or by any means (electronic, mechanical,photocopying, recording or otherwise) without the priorwritten permission of the copyright owner.

Applications for reproduction should be made in writing to: Licensing Division, Her Majesty's Stationery Office, St Clements House, 2-16 Colegate, Norwich NR3 1BQ or by e-mail to hmsolicensing@cabinet-office.x.gsi.gov.uk

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ACKNOWLEDGEMENTS

This report presents the findings of the research project conducted on behalf of The Health and Safety Executive and The Disability Rights Commission. In addition to the members of the IRS Research team, Bridget Henderson and Lucinda Ponting contributed to the data analysis and report writing on the survey findings. Noelle Murphy and Keith Holroyd conducted some of the case studies. Michael Thewlis contributed to the design of the postal surveys. Howard Fidderman acted as an advisor to the project. The telephone survey was carried out by NOP Business.

The research team would like to thank all the participants in the postal surveys and those who contributed to the case studies for their time and assistance with this project.

Jennifer Hurstfield

January 2003

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CONTENTS

Executive Summary 1

Project aims and methodology 7

Chapter 1 Literature review 9

Chapter 2 Review of UK case law 36

Chapter 3 Telephone survey of SME employers 43

Chapter 4 Large employers' survey 52

Chapter 5 Occupational health practitioners' survey 62

Chapter 6 Health and safety practitioners' survey 72

Chapter 7 Health and safety representatives' survey 87

Chapter 8 Employer Case Studies 101

Chapter 9 Individual Case Studies 107

Chapter 10 Conclusions 116

Appendix 1 HSE/DRC survey – telephone questionnaire 126

Appendix 2 A survey of employers 145

Appendix 3 Occupational health practitioners’ survey 155

Appendix 4 Health and safety practitioners’ survey 165

Appendix 5 Health and safety representatives’ survey 175

Appendix 6 Schedule for semi-structured interviews with employers 185

Appendix 7 Schedule for semi-structured interviews with individuals with a disability 192

Appendix 8 Analysis of findings from SME employers in Scotland and Wales 201

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EXECUTIVE SUMMARY

IRS Research was commissioned to conduct a research project on behalf of the Health and Safety Executive and the Disability Rights Commission. The aim of the project was to establish the nature and extent of the problem of health and safety requirements being used as a ‘false excuse’ for not employing or continuing to employ disabled people or people with an injury or ill-health condition.

The research was conducted between April and November 2002 and comprised several interrelated elements. The key findings of each stage of the project are summarised below.

1 LITERATURE REVIEW

A literature review was conducted of UK and international studies. This found that, while health and safety is cited as a justification for discrimination against disabled people in a significant proportion of DDA-related employment tribunal cases, there is a dearth of rigorous research on the extent to which health and safety issues conflict, or are in harmony, with disability management. There is a major disparity between the importance of the issue – as indicated at employment tribunals – and evidence-based knowledge.

In both the UK and the US, where analogous disability and health and safety legislation is in force, there is a debate about the extent to which employers are unduly paternalistic, or over protective, to disabled people. Protecting the health and safety of disabled people by denying them employment creates further, possibly unjustified, discrimination against individuals who, arguably, should be able to express their right to balance the benefits of gaining and retaining employment against possible risks to their own health and safety.

A review of the research studies also indicates that people with some kinds of disabilities are at greater risk than others of facing barriers to their employment. In particular, people with mental health conditions or epilepsy may face the greatest degree of discrimination on grounds of health and safety – much of which may be unjustified.

2 CASE LAW REVIEW

The case review examined employment tribunal decisions, as well as those taken at appellate level in the Employment Appeal Tribunal (EAT) and Court of Appeal. Cases selected for review were those in which employers had cited health and safety concerns as reasons for not recruiting or retaining disabled persons, or for subjecting them to some other employment detriment.

For the purposes of this review, the core definition given to “false excuse” is “unlawful”. The term “unlawful” is used to encompass those cases in which employers have failed to show that their health and safety reasons justify discriminatory action against disabled persons.

The cases selected illustrate the general point that satisfaction of the justification defence does not guarantee that unnecessary (though lawful) discrimination is prevented.

The review concludes that stereotyped views, wrong decisions and excessively cautious risk assessments may all act as unnecessary, lawful, barriers so long as they do not give rise to decisions so perverse as to fall outside the range of responses open to a reasonable employer.

3 TELEPHONE SURVEY OF SME EMPLOYERS

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A telephone survey of small and medium-sized organisations was conducted by NOP Business in May 2002. A total of 501 interviews were completed from a representative national sample. The interviews were conducted with the senior manager responsible for recruitment and retention of staff.

The findings point to variations in policies between SMEs of different sizes and sectors. For example, larger organisations are more likely to conduct health screening, to have a safety specialist in charge of health and safety, and to use the services of an OH practitioner.

Just under half the organisations had a disability policy, but the proportion was considerably higher in the public than in the private sector. Only one-third of organisations said that they employed any disabled people.

Fewer than one in five said that their organisation had overcome any health and safety difficulties associated with recruiting someone with a disability, ill-health condition or injury. This proportion rose to 34% of organisations that had overcome health and safety difficulties to retain an existing employee with a disability or ill-health condition.

Concerns about employing people with a disability or ill-health condition varied according to sector. The highest proportions expressing concerns were in construction, agriculture and manufacturing,

For most disabilities or conditions, higher proportions of respondents expressed concern in relation to employing someone in a manual job. However, in the case of mental illness and learning disabilities, a higher proportion expressed concern about employing someone in a managerial or professional position than in a manual one.

Of those respondents currently covered by the DDA, one in four thought there was a conflict between the operation of the DDA and compliance with health and safety regulations, compared with two-thirds who thought that there was not.

4 LARGE EMPLOYERS’ SURVEY

A postal survey of 2000 large organisations with 250 or more employees was conducted in September. A total of 153 respondents (7.7%) completed the questionnaire. The findings indicate that the majority of large organisations have access to occupational health practitioners either in-house or through the purchase of external services. These organisations were also likely to review their health and safety risk assessments in respect of all employees. Around three-quarters have a disability policy and 90% employ disabled people.

A high proportion of these employers said that they had experiences of overcoming health and safety difficulties in order to employ someone with a disability or ill-health condition. Many examples were provided of adjustments to the workplace or working arrangements to overcome these health and safety difficulties.

Around one in five respondents, however, had decided not to offer a job to someone with a disability or ill-health condition on the grounds that their condition posed a risk in terms of health and safety. An even higher proportion – one-third – had dismissed someone with a disability, injury or ill-health condition on the ground that their condition presented a risk in terms of health and safety. In the majority of cases, the risk was identified as being to the health and safety of the disabled, injured or sick person.

5 OCCUPATIONAL HEALTH PRACTITIONERS’ SURVEY

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A postal survey was distributed to 524 OH practitioners, of whom 13% responded. Nearly three-quarters of occupational health practitioners said that their organisation had overcome a health and safety problem to recruit a sick or disabled employee, while nine out of 10 had done so to retain a sick or disabled employee.

Nearly half the respondents had experience of their organisation deciding not to offer a job to a sick or disabled person on health and safety grounds. The health and safety concerns were usually for the disabled person themselves, rather than other employees or the public. Almost half the respondents said that their organisation had dismissed someone with a disability, ill­health condition or injury on health and safety grounds. In nearly nine out of 10 cases the sick or disabled worker was judged to be at risk.

One-third of respondents expressed health and safety concerns regarding the employment of people with disabilities or ill-health conditions. But, as with other groups surveyed, the extent of these concerns depended on the type of disability/condition and the type of position.

Asked directly whether they thought health and safety had ever been used by a manager as a “false excuse”, 16% thought that this had happened.

The majority of respondents did not perceive a conflict between the DDA and compliance with health and safety legislation. However, just over a quarter of those from a wide range of organisations did believe that there was a conflict.

HEALTH AND SAFETY PRACTITIONERS’ SURVEY

A postal questionnaire was sent to 602 health and safety practitioners of whom 14% responded. The majority of health and safety practitioners indicated that their organisation screen for disability and ill-health at recruitment. The most frequent means of screening was by questionnaire or health declaration. However, only a minority of health and safety practitioners was involved in recruitment, and they were not involved in the vetting of health questionnaires.

The majority of organisations included an assessment of the impact of any disability, injury or ill-health condition when conducting risk assessments, and a majority reviewed these when new employees joined. Three-quarters also reviewed risk assessments when an employee developed a disability or injury or became unwell. In just over a quarter of organisations, these risk assessments had led to the decision not to offer a job to a person with a disability, injury or ill­health condition, or had decided it was not possible for an individual to continue working in a particular role.

When such decisions were made, most often the concerns were for the risk to the person with the disability or ill-health condition, but the safety of other employees and the public was also a concern. Employers were also concerned about potential breaches of health and safety law.

Over two-thirds of organisations had overcome difficulties in order to recruit or retain individuals with a disability, injury or ill-health condition. However, in more than a third of organisations, health and safety practitioners were aware of cases in which members of staff had been dismissed due to their condition presenting a risk in terms of health and safety. The most important factor in these decisions was the potential risk to the individual themselves.

Nearly a third of health and safety practitioners had health and safety concerns regarding the employment of people with disabilities, injuries or ill-health conditions. There was considerable variation in the perceptions of potential health and safety risks arising from different types of condition for specific employee groups. More practitioners had concerns relating to manual workers than for other groups for all but three of the specified conditions. For mental illness,

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practitioners had more concerns regarding managers, while for learning disabilities and dyslexia, health and safety practitioners had most concerns regarding technical workers.

Nearly half the respondents (47%) considered that the DDA had had a minor impact in their organisation on the recruitment of people with disabilities, injuries or ill-health conditions. Nearly one-third (30%) thought the legislation had a moderate or major impact. A similar proportion (28%) thought the DDA had had a moderate or major impact on the retention of disabled staff, while one-third thought it had had a minor impact and one third thought it had had no impact.

Just a small proportion (12%) believed there to be any conflict between the requirements of the DDA and statutory health and safety requirements.

7 HEALTH AND SAFETY REPRESENTATIVES’ SURVEY

A postal questionnaire was sent to nearly 8,000 safety representatives on the TUC’s database and received a 7% response rate (581 responses).

Nearly three out of five representatives were working in organisations where risk assessments are conducted taking into account new employees. Just over one in 10 said that there had been an occasion where the risk assessments had precluded the employment of people with disabilities or ill-health conditions.

Less than one in three respondents said their employer had made changes to overcome health and safety difficulties to help recruit a disabled person, compared with three out of five who said that the changes had been made to help retain an employee. Respondents in the public sector were more willing to overcome health and safety difficulties than those in the private sector.

Around one in 10 safety representatives said their employer had decided not to offer a job to someone with a disability, ill health condition or injury, because it presented a risk to health and safety. A higher proportion, more than one-third said that their organisation had dismissed someone with a disability or ill health condition on health and safety grounds. In both cases the health and safety risk is most commonly perceived as being to the disabled person themselves.

Mental illness is cited as the condition most likely to cause health and safety concerns in all but manual jobs, where musculoskeletal disorders cause the most concern.

One in five respondents perceived there to be some conflict between the DDA and health and safety laws, compared with more than two in five who did not think there was and one-third who did not know.

8 EMPLOYER CASE STUDIES

In-depth case study interviews were completed with 17 employers to provide case studies of how policy towards the employment of people with disabilities or ill health conditions is implemented in practice.

Recruitment policies and practices were found to differ considerably as did the notion of what constituted good practice with respect to application forms and health screening.

All the organisations conducted risk assessments and examples were provided of assessments which had resulted in decisions not to appoint someone.

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Some of the case study organisations had undertaken a wide range of adjustments to retain employees who became disabled or developed an ill-health condition.

Opinions differed over whether there was a conflict between the requirements of complying with the DDA and with the health and safety legislation.

Some employers were clearer than others about specific health and safety issues and many of these examples concerned jobs involving driving, or manual jobs in chemical processes or other hazardous environments. But in other cases generalised concerns were voiced which did not appear to be specifically related to health and safety.

The fact that employers were not always clear about what constituted a health and safety risk was also affected by their access to information and advice. Some of the case study employers had sought detailed guidance from OH professionals about how a specific impairment might affect ability to do a particular job. Others had turned to the HSE for guidance and the Disability Employment Advisers for information on adjustments.

9 INDIVIDUAL CASE HISTORIES

Sixteen interviews were conducted with disabled people who felt that their employment has been affected by health and safety decisions made by a potential or an existing employer. The case histories were obtained using the following means: contact with disability organisations, trade unions and law centres, and through people with research and other related professional interests who were known to the research team

Only a minority of people interviewed had any experience of a potential employer raising health and safety concerns relating to their disability when they applied for a job. However, most suspected that on at least one occasion an employer had rejected their application because they were considered to be a safety risk.

Three informants had direct experience of health and safety barriers being given as a reason for their rejection.

In general, informants who said employers had raised concerns about their disability potentially being in conflict with health and safety rules when applying for a particular position, reported that the perceived risk was to them and was less likely to be to fellow workers, customers or members of the public.

None of the informants, who provided examples of instances where health and safety rules impacted on job application, was aware of any risk assessment being undertaken with respect to their employment.

Eight informants provided examples of instances where employers expressed concerns regarding their disability and their ability to work safety. In two of these cases the individual was subject to overtly detrimental treatment. All eight informants who have confronted health and safety difficulties at work say they have been treated unfairly.

10 KEY ISSUES

Overall, both the survey and the case study research provides evidence of organisations taking steps to overcome health and safety barriers to the recruitment or retention people with a disability, ill health condition or injury. Equally there is evidence of a substantial number of organisations who responded to the survey deciding not to recruit someone with a disability or ill health condition on the grounds of a health and safety risk. Many organisations also cite examples of dismissing an existing employee on the grounds of a health and safety risk.

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It is not possible for this research to determine in respect of individual cases whether or not these decisions are justified, or whether health and safety risks are simply being used as an excuse. While some survey respondents indicated that they thought health and safety was being used as an excuse, this could only be established with full knowledge of the facts.

However, what this research has highlighted is:

Health and safety is frequently being used as the rationale for non-recruitment or dismissal of a disabled person.

There is considerably more evidence of employers overcoming health and safety difficulties to retain rather than recruit someone with a disability, ill health condition or injury.

Organisations vary considerably in their recruitment procedures towards people with a disability or ill health condition and there is no consensus regarding the stage at which applicants should be asked to disclose a disability or ill health condition.

Impairments are not viewed or treated the same by all employers. For example, an impairment such as epilepsy, may be viewed as a health and safety concern by some employers and not by others. If one company finds it possible to employ a driver with epilepsy, while another does not on the grounds of health and safety risks, there is clearly a lack of consensus on the impact of specific impairments on ability to do the job.

Employers in particular sectors, such as manufacturing, are also more likely to express health and safety concerns about employing people with any impairment.

There is a lack of understanding among some employers over what constitutes a health and safety risk. Lack of knowledge about the impact of particular conditions or disabilities can result in overly cautious assessments of the individual’s capacity to do a job. The large number of examples of decisions not to recruit or retain an individual, as well as the range of impairments cited, point to the need for clear guidance to employers on this issue

Some employers are more willing than others to undertake adjustments to overcome health and safety difficulties and larger organisations tend to have more access to specialist expertise, including OH practitioners and health and safety practitioners, to help them do so.

The surveys point to a widespread tendency on the part of the responding employers to identify the health and safety risk in terms of a risk to the individual applicant or employee. This may result in what the literature and case law reviews in this report have identified as paternalistic or excessively cautious approaches.

Further guidance may be required to ensure that employers are clearer about the range of options and adjustments open to them to consider when faced with an applicant or employee with a disability or ill-health condition.

A significant proportion of all participants in the research expressed the view that there was a conflict between the DDA and the health and safety requirements.

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PROJECT AIMS AND METHODOLOGY

In March 2002, IRS Research was commissioned by the Health and Safety Executive to conduct a research project on behalf of the HSE and the Disability Rights Commission. The aim of the project was to establish the nature and extent of the problem of health and safety requirements being used as a false ‘ excuse’ for not employing or continuing to employ disabled people or people with an ill-health condition or injury.

SEVEN KEY OBJECTIVES WERE IDENTIFIED: 1. To document existing information 2. To estimate the scale of employers’ use of health and safety requirements as a false ‘excuse’

for not employing disabled persons or not taking steps to retain employees who have suffered injury or illness from whatever cause

3. To identify and provide evidence of the nature of perceived health and safety barriers, including how and why employers reach decisions on employing sick and disabled people in relation to health and safety

4. To identify whether there are people with certain conditions who are more likely to have health and safety used as a false excuse against them, and to ascertain whether there are de facto blanket bans against certain forms of disability in particular occupational sectors based on a false excuse of health and safety.

5. To identify and report on case histories of good practice where health and safety requirements have been used in a positive way to facilitate the employment of disabled persons and the return to work of employees, who might otherwise be reliant on long-term sickness benefit.

6. To analyse the data and provide a report on all the findings. 7. To arrange and organise and report on a workshop to present and discuss the findings, and

possible ways forward, with stakeholders.

The programme of research to meet these objectives comprises the following major elements:

· A literature review of UK and international studies · A review of UK employment tribunal cases · A telephone survey of employers in 500 organisations with fewer than 250

employees · A postal survey of HR managers in 1000 larger organisations with over 250

employees · A postal survey of over 500 occupational physicians · A postal survey of over 500 occupational health nurses · A postal survey of 8000 safety representatives · 20 employer case histories · 20 individual case histories · Interviews with key informants from a range of organisations, including disability

organisations and employers’ organisations Following the completion of the research a workshop was organised to present and discuss the findings, and possible ways forward, with stakeholders. The workshop was held in December 2002.

SCOPE OF FINAL REPORT

This report is organised into separate chapters that cover the following areas:

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· The literature review · The review of UK case law · The telephone survey of SMEs · The postal survey of large employers · The postal survey of occupational health practitioners · The postal survey of health and safety practitioners · The postal survey of safety representatives · Employer case studies · Individual case studies

Conclusions

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CHAPTER 1 LITERATURE REVIEW

1 BACKGROUND

“Two thirds of disabled people of working age become disabled [during their working lives]. It is all too easy for employers to find a quick excuse to get rid of them and we should pay great attention to considering how we can encourage people who suddenly become ill to continue in employment, because that is to everyone’s benefit.” Those were the words of Derek Foster, MP for Bishop Auckland, speaking at a Parliamentary debate on disabled people in the United Kingdom (Foster 2000).

This literature review examines one possible “quick excuse” – the assumption that health and safety presents an insurmountable and justifiable barrier to the employment or retention of some people with disabilities or long-term illness.

“Many employers seem to believe that disabled people are less dependable as workers, less productive, jeopardise safety at work and are not able to get on with or be accepted by other workers,” (Jackson et al 2000). But just how widespread are these beliefs, and to what extent is health and safety used as a reason, justified or otherwise, for failing to recruit or retain people with disabilities at work? This review focuses first on general surveys on disability and employment before homing in on the issue of health and safety as a barrier to employment. The review includes a discussion of the wider political and civil rights issues, including the rights of disabled people to accept known risks to their own health and safety, and international studies, particularly from the United States where the legislation and many of the legal principles are analogous to those of the UK.

2 BARRIERS TO EMPLOYMENT AND RETENTION

Surveys of employers’ responses to the coming into force of the employment provisions of the Disability Discrimination Act 1995 (DDA) in December 1996, and their subsequent impact, have largely failed to consider barriers created by health and safety at work (perceived or real) and reasonable adjustments to overcome these barriers. Lack of research focus in this important area may have served to divert attention away from health and safety as a potential barrier and suggests that research to date is out of kilter with tribunal experience where health and safety is frequently given by employers as a justification for discrimination against disabled persons (Leverton 2002).

Leverton (2002) examined 6,183 DDA cases up to September 2000 (a fifth of which went to tribunal). She identified 385 tribunal cases in which the defence of justified discrimination was pleaded by the employer – concern over health and safety was cited in 79 (20.5%) of these cases. Applicants were successful in 36.8% of cases where health and safety was given as the reason for the discrimination – a relatively high success rate, says Leverton. Health and safety defences at tribunal included cases involving individuals with mental illness, epilepsy, cerebral palsy, and back problems.

An IRS Equal Opportunities Review survey in 1997 focused on the 12 types of reasonable adjustments mentioned in the DDA employment Code of Practice, but did not ask about adjustments to overcome safety issues (Industrial Relations Services 1997a). A follow-up analysis of employers’ policies on disability management also did not identify health and safety issues (Industrial Relations Services 1997b).

More recently, a study published in spring 2002, and carried out on behalf of the Department for Work and Pensions (DWP) as a follow-up to the earlier Department for Education and

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Employment (DfEE) baseline study (below), surveyed 2,008 employers using structured­interview methodology on issues relating to the employment provisions of the DDA (Goldstone and Meager 2002). The survey questions addressed: recruitment; training and development; promotion; sickness or absence management; consulting with disabled employees on their needs; promoting disability awareness among employees generally; encouraging retention of employees who become disabled/whose disability worsens; adapting work hours as necessary; adapting working patterns as necessary; redundancy/termination; equipment/personnel support for disabled employees; monitoring number of people with disabilities; and monitoring practices towards disabled employees. Again, health and safety was not specifically addressed.

Other studies examining barriers to the employment of disabled people without addressing health and safety issues per se include a 1995 study by the Policy Studies Institute (Arthur and Zarb 1995) and various projects commissioned by the former Department for Education and Employment (Meager et al 1998, Meager and Hibbert 1999). Recent studies commissioned by the Department for Work and Pensions (DWP), including an examination of how employers and service providers were responding to the DDA (Stuart et al 2002), barriers to job retention and advancement in employment of disabled people (Johnson 2002), and employment programmes for disabled people (Corden and Thornton 2002), all failed to home in on health and safety issues.

Arthur and Zarb (1995) highlight employers’ apparent failure to meet the employment needs of disabled people, or a failure to take “specific action to accommodate them”. They discuss in detail possible reasons for employers’ responses – including need for support staff, lack of awareness and employers’ approaches to flexible working – as well as barriers outside the workplace (such as inaccessible transport), but again do not consider health and safety as a possible contributor to employers’ failure to accommodate or to meet disabled persons’ needs.

A small-scale study of 120 employers in Sussex examined respondents’ policies and practice on employing disabled people (Ruggeri-Stevens and Saunders 2002). Although the paper ostensibly focuses on safety issues (as implied by its title: “No safe excuses for disability”), the report’s authors have only anecdotal evidence to support the claim that “employers do not appear to be using safety laws as an excuse for limiting opportunities for disabled people”.

Rather than asking questions directed specifically at the issue of safety as an excuse for discriminating against disabled people, the authors rely on unprompted responses to more general questions. No data are given, but Ruggeri-Stevens and Saunders conclude: “We might expect health and safety to be one of the main areas of concern for employers, especially if they do not have experience of working with people with disabilities. It is surprising, therefore, that respondents rarely explicitly mentioned safety legislation as an issue.”

While no clear evidence is presented, the authors state: “Although the jobs involved in the survey were not obviously dangerous, there were enough areas of indirect safety risk to make it clear to the authors that respondents demonstrated some reluctance to adduce it as a discussible issue.” Three comments from employers are offered in support of this statement though, again, it is not clear how Ruggeri-Stevens and Saunders arrive at their conclusion. The three comments were: “If he can’t drive, he can’t get out and make business”; “if he’s blind he could be in trouble walking around strange premises”; and “someone who can’t see wouldn’t be able to deal with the customers”.

The authors call on the Government to clarify any confusion that employers might have about the DDA and the Health and Safety at Work etc Act 1974 (HSW Act) (Ruggeri-Stevens and Saunders 2002).

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2.1 The experience of disabled people

Disabled people rarely feel that they need special measures to enable them to work. Only 11% of all disabled people (economically active and inactive) responding to the DfEE’s baseline survey on disability and employment (carried out in advance of the coming into force of the employment provisions of the DDA) reported that they need, or would need, special equipment or adaptations to the working environment; the figure fell to just 8% of economically active respondents (Meager et al 1998, Meager and Hibbert (1999).

The DfEE survey does not discuss safety and health at work per se, but, in view of the fact that only a small minority of disabled people claim to need special equipment or adaptations to the workplace, one can infer that the majority of disabled people would not consider special adjustments to overcome health and safety issues to be necessary for them to work. (Adaptations specifically required on health and safety grounds would be a subset of adaptations required on any ground.)

Sixteen per cent of all respondents to the DfEE baseline survey claimed to have experienced some kind of discrimination in relation to work (Meager at al 1998). Again, the DfEE survey did not specifically identify health and safety issues as sources of discrimination and whether or not employers’ perceptions of health and safety were responsible for some of this discrimination is a point for conjecture. The case law review undertaken for this project, however, suggests that health and safety is being claimed as a justified reason for discrimination by some employers at employment tribunals.

Reported discrimination seems to depend on the type and severity of a person’s disability. Among economically active disabled people, 43% of those with learning difficulties, 40% with epilepsy, 32% of those with sight impairment, 25% with a hearing impairment, 19% with mobility impairment and 16% with a back or neck disability had experienced discrimination at some time (Meager at al 1998). Findings discussed in section 3.1 indicate that people with epilepsy are most likely to face employers’ concerns over safety at work, with disabilities relating to mobility, vision, hearing and learning difficulties also raising safety concerns among employers (Dench et al 1996).

The DfEE survey identified some important sources of unfair treatment of disabled people compared with non-disabled people. Potential employers, rather than current employers, were singled out as the group most responsible for the perceived unfair treatment – identified by 42% of economically active respondents who had experienced discrimination. (It must be borne in mind, however, that the vast majority (82%) of all economically active disabled people surveyed had never experienced discrimination in connection with work because of their disability.) Whether this discrimination was related to concerns over health and safety (justified or otherwise) was not explored in the DfEE baseline survey. But research by the Institute for Employment Studies indicates that many employers see health and safety as a barrier for some kinds of disability (Dench et al 1996, see section 3.1).

2.2 Workplace adjustments

The 2002 DWP study (Goldstone and Meager 2002) provided some useful insights into the type of workplace adjustments most frequently made by employers. The most frequently reported adjustments were provision of special equipment, modification of the workplace and allowing flexible hours. Employers also mentioned altering the work or the workplace by transferring the person to another job or redesigning working duties. After prompting, employers also mentioned special leave, on-the-job support, training and counselling (Goldstone and Meager 2002).

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There were no specific mention of adjustments necessary to overcome concerns over health and safety in the 2002 DWP survey; however, adjustments mentioned by employers may include those made to take account of special risks to the health and safety of the disabled worker. Seventy per cent of employers’ policies mentioned amending the workplace or working practices to accommodate disabled people (Goldstone and Meager 2002).

Turning to cases where disability had led to the employee leaving work, where the cause was known, this was attributed to problems with mobility (23%), heart or blood circulation (9%) and depression (9%). Again, no indication was given as to whether or not health and safety at work was at issue. Regarding job retention, likely adjustments were flexible working and re­designation of duties, followed by counselling and special leave. Health and safety was not mentioned (Goldstone and Meager 2002).

2.3 Causes of discrimination

Goldstone and Meager (2002) asked employers whether they agreed or disagreed with a range of statements on the perceived costs and benefits to business of employing disabled people. These can be summarised as follows: not appropriate for disabled employee to deal face-to-face with customers; staff would feel uncomfortable working with disabled person; reduced productivity; adjustments can benefit other staff and customers; improved employer’s public image; additional workload for human resource staff; recruitment/retention of disabled staff improves employee relations and morale; adjustments to retain disabled employee often cost less than recruiting new staff; extra management or supervisory time required; disabled people have better attendance records. Questions concerning possible conflict with safety and health regulations were not included. Goldstone and Meager also asked employers to weigh up and comment on five different scenarios concerning people with different disabilities either applying for jobs or in current employment. Although a range of situations were explored, neither the questions nor the responses directly confronted health and safety issues.

Most surveys to date do not provide clear evidence that either employers’ perception of risks to health and safety is, or is not, a major barrier to the employment of disabled people. In surveys, (eg Goldstone and Meager 2002) employers did not volunteer evidence that adjustments were made to remove health and safety barriers to employment or retention. However, in questions that prompted responses, employers were not asked if they had considered such adjustments.

2.4 Prejudice and unwarranted fear

Commenting on work published by the DWP (Stuart et al 2002), Paul Bivand wrote: “Probably the most significant finding from the survey was that employers and service providers . . . had a very narrow interpretation of the term ‘disabled person’. In both cases, respondents assumed that disabled people had either physical impairments, such as being in a wheelchair, or some sensory impairment, such as blindness or hearing difficulties. To them, therefore, enabling access was a matter of making a series of physical changes to building entrances and layout” (Bivand 2002). Although concerned generally with employers’ attitudes to disability, it would be reasonable to assume that employers’ perceptions of the impact of health and safety issues on the employment of disabled people would be similarly driven by this narrow view of disability.

Prejudice among managers has a key influence on employers’ readiness to adopt fair recruitment practices – regardless of what those employers are legally obliged to do under the DDA. A survey of HR directors and managers by researchers at the University of Surrey and at University College London, found that, with regards to recruitment, “the overall willingness to comply with the DDA is likely to be a function of their knowledge of the DDA and their attitude towards people with disabilities” (Jackson C J, Furnham A and Willen K (2000)). One might expect a similar shift in employers’ attitudes in relation to perceived conflicts with health

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and safety at work, if they have experience of employing disabled people and overcoming difficulties.

Similarly, a report by the mental health charity Mind, following a two-year inquiry into social exclusion and mental health, found openly discriminatory practices in many organisations (Mind 2000). The discrimination, it concluded, resulted in many people with a mental health disability/condition having a justified fear of discrimination in work which resulted in some individuals not revealing details of past or current mental health problems and discouraging them from applying for jobs. The inquiry also found that employers often felt under-informed or ill-prepared in dealing with mental health issues.

SURVEYS THAT SPECIFICALLY ADDRESS HEALTH AND SAFETY

Prior to the 2002 IRS research, just one previous UK study had examined the issue of health and safety as potential barrier to the employment or retention of disabled people – and even here, safety was just one factor considered among many possible sources of discrimination.

Few employers responding to an Institute for Employment Studies (IES) survey on the recruitment and retention of people with disabilities (Dench et al 1996) said that disabled applicants had been refused employment for a reason relating to their disability; however, those that had been refused, claim the respondents, were rejected for reasons “related to the nature of the work, and/or equipment or health and safety”. This finding agrees with the analysis of employment tribunal citations discussed above (Leverton 2002).

According to IES, “the nature of the work emerged as the most commonly perceived barrier to the employment of people with disabilities”, with more than 60% of employers seeing it as a problem for most of the conditions identified in the survey. Specifically, 75% of employers saw the nature of the work as a barrier to the employment of those with “mental handicap/learning difficulties”; 72% for those with hearing disabilities; 71% sight problems; 67% depression/nervous and mental disorders; 64% mobility conditions; 63% allergies/skin conditions; 60% heart, circulation, chest and breathing problems; and 44% for those with epilepsy.

Where employers indicated that a particular type of disability made it difficult to employ someone for a reason relating to the nature of the work, IES asked the respondents to give a specific reason for this. The responses included issues that were or could be related to safety and health, such as not being able to move around the shop floor, a necessity for physical strength and that the type of work made it “unsafe for disabled person/other workers”. These issues were explored in detail (see below).

Whether the requirement for physical strength was viewed as a safety issue is not made clear, but 49% of employers felt this requirement was a barrier to the employment of people with a heart, circulation, chest or breathing problem; and 32% for those with a disability affecting mobility (it was negligible in most other conditions). Forty-five per cent of employers identified “ability to move on shop floor/between levels essential” as a problem for those with a mobility­related condition; and 24% for those with a heart, circulation, chest or breathing problem (Dench et al 1996).

Forty-two per cent of employers considered that the work could be unsafe for those with epilepsy; 19% said the work could be unsafe for those with allergies or skin conditions; 18% for those with hearing problems; 16% for those with a vision disability; 10% for those with a heart, circulation, chest or breathing problem; 9% for those with depression/nervous and mental disorders; 8% for a mental handicap/learning difficulty; and 6% for a mobility disorder (Dench et al 1996).

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Curiously, 30% of employers claimed that legislation prevents someone with allergies or a skin condition from working at their premises; while this was rarely perceived as an issue for people with other disabilities. The next highest group was people with epilepsy, where 5% of employers thought that legislation precluded employment of people with this condition (Dench et al 1996). The authors did not specify the nature of the legislation, although it is possible that some employers considered either the Control of Substances Hazardous to Health Regulations 1988 (COSHH; now superseded by COSHH 2002) or the Management of Health and Safety at Work Regulations 1992 (MHSW; superseded by MHSW 1999) as relevant to the employment of people with allergies/skin conditions, with the MHSW Regulations and road traffic legislation relevant to the employment of those with epilepsy. It should be borne in mind, however, that the COSHH and MHSW Regulations focus on the prevention or control of exposure to risks; they do not prescribe the removal of people with certain categories of disability from the workplace.

Twenty-two per cent of employers identified “too much pressure/stress” as a barrier to the employment of people with depression/nervous and mental disorders; 5% identified this as a problem for those with heart, circulation, chest or breathing problems; and 2% for those with a mental handicap or learning disability (Dench et al 1996).

While the “nature of the work” was seen as the most commonly perceived barrier to the employment of people with most kinds of disabilities – and as we have seen, this may in part be connected to safety and health issues – employers were also asked to identify other barriers to employment (Dench et al 1996). This was found to vary depending on the nature of the disability, and safety came up as an issue in its own right.

Specifically, 60% of surveyed employers felt that safety was a barrier to the employment of people with epilepsy (the most commonly perceived barrier for those with this condition); 36% identified safety as a barrier to the employment of people with a skin condition or allergy; 23% considered safety to be a problem for those with a mobility-related disability; 23% in relation to a visual impairment; 20% to a hearing condition; and 13% to a “mental handicap/learning difficulty” (Dench et al 1996).

Many respondents identified “difficulties in adapting premises” as a barrier to employment (Dench et al 1996). When asked to expand on this, employers frequently identified too many stairs, lack of lifts, poor access and dangerous machinery – all of which could be perceived as affecting workers’ safety.

Dench et al (1996) acknowledge that “a large scale quantitative survey of this type is not the ideal vehicle for exploring problems associated with the nature of the work”. What the IES study revealed, however, is that perceptions and problems identified by employers are often multifactorial and frequently mix, or even muddle, issues related to the nature of the work and work environment with factors specifically challenging the health and safety of their employees. The current IRS survey has helped to tease out these issues and focuses on health and safety, or more specifically, perceptions of health and safety as a potential source of unfair discrimination against people with disabilities.

GUIDANCE FOR EMPLOYERS

The 1996 IES survey discussed above was undertaken before the coming into force of the employment provisions of the DDA. The current IRS survey may well reflect a change in attitudes of employers as more understand and follow the notion that reasonable adjustments may be used to overcome barriers to employment related to health and safety risks. Indeed, according to the DfEE in its 1999 good practice guide for employers: “The number of occasions where health and safety problems represent an insuperable obstacle to the employment of

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someone with a disability are very few and far between. Experience shows that there is not likely to be a conflict between the DDA and the Health and Safety at Work etc Act. Indeed it is often the case that, where an employer makes a reasonable adjustment for the employment of a disabled employee, any health and safety risk can be significantly reduced” (DfEE 1999).

Similarly, the Disability Rights Task Force concluded: “While the number of occasions where health and safety problems represent an insuperable obstacle to employing a disabled person is very small, instances have been reported where health and safety issues have been cited as a reason for, say, not employing a disabled person. This could be because of an employer’s unwarranted fears or lack of knowledge of particular disabilities. We recognise that some employers have concerns about the safety implications of employing disabled people. We recommend that examples which illustrate these concerns should be investigated and that consideration should be given as to how the concerns might best be addressed (without risking employers becoming more concerned as a result)” (Disability Rights Task Force (1999).

More recently, the NHS Executive and the Department of Health (DoH) have concluded that while “health and safety issues are often of great concern to some employers if they are unfamiliar with the needs of the disabled, such fears are generally unfounded” (NHS Executive/DoH 2000).

The NHS Executive/DoH believes that good practice in health and safety procedures should deal with most problems that arise. Specifically, the NHS Executive/DoH states: “Health and safety law does not override the DDA, but it should be used with care and should not be seen as a way of not employing a disabled person.”

The NHS Executive/DoH lists “typical adjustments” that could be put in place to ensure a disabled person’s safety during an emergency:

· “fire alarms fitted with flashing lights or providing a vibrating pager to alert a hearing impaired employee;

· assigning work colleagues to alert and assist in an emergency; · making sure that employees with learning difficulties fully understand safety procedures

and fire regulations; · ensuring first-aiders are fully conversant with the first aid implications of, for example,

diabetes and epilepsy; and · a thorough lifting and handling assessment and the purchase of appropriate equipment.”

Integrated fire alarm/pager systems to facilitate safety warnings to disabled employees are also used by employers outside the NHS. Centrica, for example, installed such a system (McGeer and Fidderman 2000).

The DDA Code of Practice on employment (DfEE 1996) states: “An employer is not required to make an adjustment – or do anything under the Act – that would result in breach of statutory obligations. For example, if a particular adjustment would breach health and safety or fire legislation, then an employer would not have to make it. However, the employer would still have to consider whether he was required to make any other adjustment that would not breach any legislation.

“For instance, if someone in a wheelchair could not use emergency evacuation arrangements, such as a fire escape on a particular floor, it might be reasonable for the employer to have to relocate that person’s job to an office where that problem did not arise.

“For example, an employer short-listing applicants to fill a junior office post is considering whether to include a blind applicant who the employer believes might present a safety risk moving around the crowded office. A reasonable adjustment might be to provide mobility

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training to familiarise the applicant with the work area, so removing any risk there might otherwise be.”

Aside from considering adjustments to overcome barriers to health and safety, the DDA Code of Practice on employment makes only one other reference to health and safety at work – in the possible justification of a requirement that a disabled job applicant undergoes a medical examination (DfEE 1996). The Code of Practice states that a medical examination would not be justified where the applicant’s condition was relevant neither to the job nor to the work environment. However, using the example of an applicant with a heart condition, the Code adds: “The employer would probably be justified in asking the applicant with the disabling heart condition to have a medical examination restricted to assessing its implications for the particular job in its context. If, for example, the job required lifting and carrying but these abilities were limited by the condition, the employer would also have to consider whether it would be reasonable for him to have to make a change, such as providing a mechanical means of lifting and/or carrying, or arranging for the few items above the person’s limit to be dealt with by another person, whilst ensuring that any health and safety provisions were not breached.” The DDA thus prohibits the blanket exclusion of people with disabilities on the grounds of health and safety.

Recent guidance from the Employers’ Forum on Disability (Employers’ Forum on Disability 2002) acknowledges that health and safety may be a justification for discriminating against disabled employees or applicants “if it can be shown that there is an unacceptable risk in the workplace to the disabled employee’s own or others’ safety.” However, it states that health and safety presents no such barrier in the “vast majority of cases” and that employers must seek reasonable adjustments for any barriers that do exist. Employers should treat these issues on a case-by-case basis and should “make an individual, objective and competent assessment of any risk that may be associated with employment of the particular disabled person.” Employers should do all that is reasonably practicable to remove the risks to health and safety and deal with any residual risks (Employers’ Forum on Disability 2002).

The advice presented by the Employers’ Forum on Disability combines employers’ obligations to meet the requirements of both the DDA and HSW Act. It advises that employers: conduct risk assessments that focus on facts, not assumptions; assess the individual rather than imposing blanket restrictions; discuss with the individual how to overcome any limitations; apply best medical evidence on prognosis and associated occupational hazards; relate the individual to the essential requirements of the job; identify the actual duration and frequency of hazardous situations; and identify potential adjustments (Employers’ Forum on Disability 2002).

4.1 Reasonable adjustments/as far as reasonably practicable

There has been some debate about the relative requirements of the DDA to make “reasonable adjustments” and the duty under the HSW Act and its regulations to ensure the health, safety and wellbeing and to reduce risk “as far as is reasonably practicable”.

The Employers’ Forum on Disability (2002) and Davies and Davies (2000) argue that, in many cases, reasonable adjustments under the DDA will be the same as reasonably practicable measures to ensure health and safety and in most cases the laws complement each other in their requirements to protect disabled people at work. However, tribunals may apply different criteria to what is considered reasonable.

Both Davies and Davies (2000) and the Employers’ Forum on Disability (2002) argue that the financial standing of the employer is not relevant to the judgement of what is reasonably practicable under health and safety law. However, the DDA Code of Practice on employment states: “It is more likely to be reasonable for an employer with substantial financial reserves to

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make an adjustment with a significant cost than for an employer with few resources” (DfEE 1996). The duty to make reasonably practicable adjustments under health and safety law is thus considered to be more stringent that the requirement to make reasonable adjustments under the DDA (Employers’ Forum on Disability 2002). This is not to say that cost does not come into the equation when deciding what is reasonably practicable in complying with health and safety law.

Drawing on case law, the Employers’ Forum on Disability (2002) points out that, in ensuring, so far as is reasonably practicable, the health and safety of their employees, employers must make a calculation that takes into account the amount of risk on one side of the scale, with the sacrifice of money, time or trouble expended in avoiding the risk on the other. An employer thus cannot demonstrate that it has complied with health and safety legislation without first having carried out a risk/cost-benefit analysis (Davies and Davies 2000).

If a disabled person is discriminated against on health and safety grounds, the burden of proof rests with the employer to show that not only was it not possible to make a reasonable adjustment but that it was necessary to discriminate against the individual (ie deny employment) in order to meet the test of reasonable practicability (Davies and Davies 2000). According to Davies and Davies (2000), the employer will justify the discrimination “by demonstrating that he has computed the balance between risk and sacrifice and that the risk is significant – ie the risk remains disproportionately high in relation to the sacrifice of any measures available to avert it . . . A risk that is significant in this sense may be proof that an employer’s discriminatory action was undertaken ‘in pursuance of’ health and safety legislation” (ie in accordance with s.59(1) of the DDA).

Turning to the DDA, the Employers’ Forum on Disability points out that the human and financial cost to the disabled person must be added to the equation; ie the DDA imposes a duty to balance the interests of the employer and the employee. An employer must therefore consider the potential losses, or sacrifice, to a disabled person in not gaining/retaining employment against the cost burden on the employer in making any required adjustments (Employers’ Forum on Disability 2002). As pointed out by Davies and Davies (2000): “A test that balances risk against financial and commercial inconvenience for one affected party, ignoring the interests of the other, cannot provide an equitable means of reconciling competing principles.”

Davies and Davies (2000) conclude that health and safety legislation should be seen as complementing the DDA, but acknowledge that in some cases residual risks may remain after adjustments have been made. “Here, health and safety legislation undisputedly takes priority, If acceptance of the risk would breach health and safety legislation, discrimination is lawful, for discriminatory acts will have been done ‘in pursuance of’ other legislation” (Davies and Davies 2000).

Employers have a duty to make reasonable adjustments only for people who fall under the protection of the DDA; however, all employees are protected by the HSW Act (Davies and Davies 2000). Health and safety legislation thus obliges all employers to ensure the health and safety of all their employees, so far as is reasonably practicable.

4.2 Risk to self – a potential source of conflict

According to Davies and Davies (2000), there are “three tiers” of health and safety barriers to the employment of disabled people:

· ill-founded fears of risk based on ignorance and prejudice which would entail no actual breach of duty;

· genuine risks to health and safety that can be eliminated or reduced to acceptable levels by practicable adjustments; and

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· residual risks that cannot be reduced by reasonably practicable means but which the employer considers (without reference to the wishes of the individual) are unacceptable (Davies and Davies 2000).

The DDA is designed to remove unjustified discrimination against disabled people and should protect individuals both against unfounded and prejudicial fears by employers and against overprotectionism by the employer.

Consider the case where an employer has reduced health and safety risks so far as is reasonably practicable, but where a residual risk remains that is exclusive to the disabled person (who, for example, is unusually sensitive to the hazard). Should the disabled person be excluded from the workplace?

According to the Employers’ Forum on Disability (2002): “Here the risk/cost-benefit balance should reflect the wishes of the disabled employee . . . Where the employee decides that the benefits of working outweigh the risks, his/her self-determination should be respected wherever possible.”

Case law makes clear that where an employer has reduced risk so far as is reasonably practicable, it is lawful for employers and their employees to accept even serious residual risk. The same principle applies where an employee is at special risk because of his/her health condition or disability (Employers’ Forum on Disability 2002).

Employers concerned about potential litigation in the event that the individual suffers ill health or injury should be able to defend their position provided that they have taken reasonable precautions to reduce risk and have informed the employee about the residual risk. “Cases have established that there is no duty at common law to dismiss an employee rather than retain him because there might be some risk” (Employers’ Forum on Disability 2002). Certainly, an employee who acknowledges properly communicated residual risk cannot subsequently prove that the employer was negligent and in breach of its duty of care (Davies and Davies 2000).

While the HSW Act gives protection to employees against unscrupulous employers who might otherwise fail to ensure safety and health at work, the law provides no means whereby an employee could challenge a decision that results in his/her exclusion from the workplace on grounds of safety and health. This creates the potential for “paternalistic protection” (Davies and Davies 2000).

Taken in isolation, health and safety legislation thus creates the possibility that an employer might refuse to employ an employee on the grounds that the residual risks pose an unacceptable burden to the individual, but without taking that individual’s views into consideration. However, accepting those residual risks may allow the disabled person to work and thus, in his/her own opinion, be in his/her best interests. However, such paternalistic protectionism “conflicts with the principle of non-discrimination introduced to the workplace by the DDA” (Davies and Davies 2000).

In conclusion, Davies and Davies (2000) describe the issues raised by their third tier of residual risks as “the real test of legislative and judicial commitment to the cause of civil rights for the disabled.” It is important, they argue, for the acceptability of risk to be re-examined in order that disabled people are not unfairly discriminated against through paternalism.

WIDER POLITICAL DEBATE

As part of the joint Health and Safety Commission (HSC)/government initiative Revitalising Health and Safety at Work (RHSW), the HSC has pledged to “consult on whether the duty on employers under health and safety law to ensure the continuing health of employees at work,

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including action to rehabilitate where appropriate, can usefully be clarified or strengthened. For example, organisations might be required to set out their approach to rehabilitation within their health and safety policy” (Department of the Environment, Transport and the Regions 2000).

This statement, published in June 2000, is one of the first clear indications that government policy is shifting towards bringing the prevention of risks to health and safety under the same umbrella as efforts to help rehabilitate injured and ill workers back into employment and to prevent the slide into permanent disability and economic inactivity.

The RHSW statement goes on to say: “There is a strong economic, social and legal case for taking all practicable steps to rehabilitate workers suffering from injury or ill-health, even where this is not directly work-related, including making reasonable adjustments to working arrangements so that they can return to work. This principle is reinforced by the Disability Discrimination Act 1995 and by the Government’s Welfare to Work programme, in particular for disabled people” (Department of the Environment, Transport and the Regions 2000).

In July 2002, the Health and Safety Executive (HSE) and HSC were relocated to the Department for Work and Pensions from the Department for Transport, a shift that allowed the HSE to come under the aegis of the department with responsibility for rehabilitation of disabled people and for compensation for industrial injuries. According to the TUC the move means that the DWP will oversee the “three key pillars of health and safety – prevention, rehabilitation and compensation” (TUC 2002a). Bringing government policy under the same sponsoring department, argues the TUC, will help to eliminate “glaring inconsistencies and some major gaps in the system” of prevention, rehabilitation and compensation” (TUC 2002b).

The move was also supported by Walters and James (2002) who argued that efforts needed to be made to improve the “administrative linkages that should exist between the prevention of work-related injuries and ill health, on the one hand, and the compensation and rehabilitation of those who suffer such work-related harm, on the other”

According to Walters and James: “There is a need to create a greater degree of synergy between the systems in place in respect of the prevention of work-related harm, the compensation of such harm and the provision of medical treatment and rehabilitation to those who suffer from it. Secondly, that a step forward in this regard would be to locate the Health and Safety Commission and its Executive within the Department of Work and Pensions in order to increase the potential that exists for achieving synergistic benefits between these three areas of activity and to better reflect a preventive agenda across all of them” (Walters and James 2002).

A key element of the RHSW strategy is being examined by the current IRS research. Action point 32 of the statement reads: “The Health and Safety Commission will work in partnership with the Department for Education and Employment and the Disability Rights Commission to ensure that health and safety law is never used as a false ‘excuse’ for not employing disabled people, or continuing to employ those whose capacity for work is damaged by their employment, for example by highlighting this point in relevant publications and guidance.

“This work will be taken forward as part of the Health and Safety Commission’s third strategic theme: ‘to develop health and safety aspects of the competitiveness and social equality agendas’. It is important that health and safety law should not present an inappropriate bar to the employment of disabled people. As part of this work, the Health and Safety Commission will collaborate with the Department for Education and Employment on the production of a planned revised Code of Practice for the elimination of discrimination in the field of employment against disabled persons, following the recommendations of the Disability Rights Task Force report ‘From Exclusion to Inclusion’.” (Department of the Environment, Transport and the Regions 2000).

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5.1 International policy

The ILO’s code of practice on managing disability in the workplace (International Labour Organisation 2001) includes, in its definition of working conditions, “measures taken to protect the occupational safety and health of the worker” along with, for example, job content, hours of work and work organisation. The ILO states that an employer’s disability management strategy should include “promoting a safe and healthy workplace, including provision for occupational safety and health measures, [and] risk analysis of any adaptation, adjustment or accommodation.”

We did not identify a significant body of European Union literature on the health and safety of disabled people at work. For example, a European Disability Forum (2000) paper on employing disabled people includes only a cursory mention of health and safety – and this merely to support the continuing monitoring of health and safety statistics by the European statistical agency EUROSTAT.

6 UNITED STATES – POLICY AND GUIDANCE

The United States’ primary legislation on preventing discrimination against disabled people, the Americans with Disabilities Act of 1990 (ADA), has many similarities to the DDA and indeed was seen by many as a model for the development of the UK law. Both acts apply to virtually all areas of employment, define disability to encompass physical and mental impairment as well as severe disfigurement, and enable actions to be brought in respect of discrimination on the basis of past disability (James and Bruyère 1995). Both also require employers to make reasonable adjustments – or “reasonable accommodations” in ADA terms – in order that a disabled person is not unfavourably discriminated against. Lessons learned in the US, particularly in respect of possible conflicts between the ADA and health and safety laws, are important additions to the knowledge base reported here.

Guidance on the ADA from the US Equal Employment Opportunity Commission (EEOC) includes a statement that might apply equally in the UK as in the US: “Many are excluded only by barriers in others’ minds; these include unfounded fears, stereotypes, presumptions, and misconceptions about job performance, safety absenteeism, costs, or acceptance by co-workers and customers” (Equal Employment Opportunity Commission 1992).

6.1 FITNESS-FOR-WORK TESTS

The ADA effectively prevents employers from using pre-employment fitness-for-work tests and standards to discriminate against disabled people without very good reason. The employer must be able to show that any test or standard is related to the job, consistent with business necessity and that the standard cannot be met by a reasonable accommodation (Bruyère 2002). A risk of future injury is rarely enough to satisfy this requirement of the ADA (Bruyère 2002). An employer is prohibited from making medical enquiries or from insisting on fitness-for-work tests before an offer is made.

Sonnenburg (2000) makes this point clear where the fitness-for-work issues concerns an individual with mental illness: “Assuming that an employer has a legitimate basis for requesting an independent psychiatric exam, it does not have a free rein. The exam must not exceed the scope of the specific medical condition at issue and its effect on the employee’s ability, with or without reasonable accommodation, to perform essential job functions, or to work without posing a direct threat [to health and safety].” We will return to the application of the ADA to mental health disabilities in section 6.8.

Bruyère (2002) points out that the US Occupational Safety and Health Act (1970) (OSH Act) requires employees to test employees in certain instances, for example, audiometric testing for

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employees exposed to noise at work. However, Bruyère concludes: “A survey of the case law does not reveal any significant cases illustrating a conflict between the ADA’s limits on medical inquiries and testing, and OSHA’s testing requirements, which leads this author to surmise that the differing goals and requirements of the ADA and the OSH Act are being harmoniously construed in a common-sense way. Knowledgeable HR professionals can assist in resolving these conflicts early on, determining whether the requirements of both laws can be met or whether the ADA’s conflicting federal law defence [ie that a discriminatory action was taken to comply with another federal law or regulation] is applicable”.

6.2 Reasonable accommodations

Bruyère (2002) points out that even though compliance with a federal health and safety requirement cannot be overridden by a requirement to comply with the ADA – analogous to s.59(1) of the DDA which makes clear that an employer is not required to breach other legislation in order to meet the requirements of the DDA – the employer must first consider reasonable accommodation, such as removing a noise hazard, or transferring to another post, before considering termination of employment. Even where health and safety regulations state, for example, that a respirator must be worn for a certain job, and the disabled person is unable to do this, the ADA requires employers to consider transferring the employee to an equivalent vacant position before termination is considered (Bruyère 2002).

6.3 The “direct-threat” defence

The Americans with Disabilities Act of 1990 makes it unlawful for an employer to discriminate against a person with a disability on grounds of health and safety unless there is a “direct threat” to the health and safety of others in the workplace, and this threat must be significant and substantial. Furthermore, an employer can only use the so-called direct-threat defence if the health and safety risk could not have been overcome by a reasonable accommodation.

Whilst this seems reasonable, it is the direct-threat issue that has prompted much controversy in the field of employment of disabled people. A test case even highlighted possible discrepancies between the language of the ADA itself and the official guidance and regulations drawn up by the US Equal Opportunities Commission. These issues are discussed in section 6.5.

The US Equal Employment Opportunities Commission makes clear that an employer can consider health and safety in hiring or retention decisions (Equal Employment Opportunity Commission 2000a). However, it emphasises that an employer would only be justified in discriminating against a disabled person if they posed a “direct threat” to the health and safety of the individual or others in the workplace. The direct threat must be a “significant risk of substantial harm” and this risk must not be speculative or remote. Furthermore, the EEOC makes clear that employers must consider whether this direct threat can be removed or reduced to an acceptable level by a reasonable adjustment.

The EEOC states: “An employer may not simply assume that a threat exists; the employer must establish through objective, medically supportable methods that there is a genuine risk that substantial harm could occur in the workplace. By requiring employers to make individualised judgments based on reliable medical or other objective evidence rather than on generalisations, ignorance, fear, patronising attitudes, or stereotypes, the ADA recognises the need to balance the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace” (Equal Employment Opportunity Commission 1997).

Employers are not able to err on the side of caution. The EEOC states: “Where an employer refuses to hire a person because it assumes, correctly or incorrectly, that, because of a disability, she/he poses merely some increased risk of occupational injury (and, therefore, increased

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worker’s compensation costs), the employer discriminates against that person on the basis of disability. The employer can refuse to hire the person only if it can show that his/her employment in the position poses a ‘direct threat’. This means that an employer may not ‘err on the side of safety’ simply because of a potential health or safety risk. Rather, the employer must demonstrate that the risk rises to the level of a direct threat” (Equal Employment Opportunity Commission 2000b).

The EEOC offers specific advice on the direct-threat defence for different employment scenarios. For example, an employer may not discriminate against an HIV-positive employee working in the produce department of a supermarket on the basis that the employee is required to work with sharp knives. Scientific evidence precludes the possibility of significant risk of infecting other employees or members of the public so the discrimination would not be justified (Equal Employment Opportunity Commission 2000c).

This advice is echoed by the US Department of Justice’s Civil Rights Division Disability Rights Section. The department states that, although an employer is justified in considering health and safety when deciding whether or not to hire or retain an individual with HIV infection, the circumstances where this would be the case are limited. An employer cannot simply assume that a threat exists and must make a case-by-case judgement based on current reliable medical or other objective evidence (US Department of Justice, date not published).

“Transmission of HIV will rarely be a legitimate ‘direct threat’ issue” says that US Department of Justice and employers are directed to, for example, the US Centers for Disease Control and Infection for current scientific evidence.

The use of the direct-threat defence is very restrictive. For example, having a prior occupational injury does not justify an employer’s decision to discriminate against an individual, although “evidence about a person’s prior occupational injury, in some circumstances, may be relevant to the direct-threat analysis” (Equal Employment Opportunity Commission 2000b). Even a determination that a worker will be unable to perform a job in the future, have excessive sickness absence, or that employment of the employee will lead to increased health insurance or workers’ compensation costs, is insufficient to support a direct-threat defence (Walworth et al 1993).

The issue of when an employee him/herself poses a “direct threat” to the health and safety of others is a vexed question. In particular, it has stirred fiery debate over the employment of people with mental health disorders that might be associated with violent behaviour.

The EEOC notes that an employer would be required to identify the specific behaviour that could present a direct threat and that simply having a history of, or by being treated for, a psychiatric disability does not mean that the individual poses a direct threat. “Whether an individual poses a direct threat must be determined on a case-by-case basis, based on reasonable medical judgment relying on the most current medical knowledge and/or on the best available objective evidence” (Equal Employment Opportunity Commission 2000d).

If an employee is taking medication for a psychiatric condition, the employer would need to consider objective evidence on, for example, whether side effects of the medication could impair safety in operating machinery and, even if so, whether a reasonable accommodation could reduce or eliminate this risk. Even in cases where the condition might lead to violence, the employer must decide objectively whether the individual poses a direct threat of violence (Equal Employment Opportunity Commission 2000d).

According to Sonnenburg (2000), the clearest evidence of a direct threat from a worker with a mental illness is when an employee “threatens a co-worker or supervisor with physical harm”

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and, as a consequence, might be required to undergo a psychiatric examination. However, “an employer’s good faith belief that an employee is a direct threat is also insufficient; an individualised assessment must be based on objective scientific information”.

The enforcement guidance of the EEOC has been criticised for being too simplistic. For example, according to the web-based legal service USLaw.com, the EEOC, in its enforcement guidance (EEOC 2000c), “gives a rather easy example of a direct threat as guidance for employees. The agency poses the hypothetical situation of an employer considering the application of an individual who is ‘mentally disabled’ and who was discharged two weeks earlier by another employer for: (1) telling a co-worker ‘that he would get a gun and get his supervisor if he tries anything again’; (2) engaging in several altercations during his past employment, including one where he had to be restrained from fighting with a co-worker; and (3) punching the wall outside his supervisor’s office. Not surprisingly, the EEOC said the employer would be justified in not hiring the applicant” (USLaw.com 2000).

According to USLaw.com: “The decisions faced by employers in this troubling area of the law are never that easy.” The situation would not be as clear cut, it says, if the worker with a mental illness merely engaged in “glaring and stalking behaviour”, or threatened to destroy property rather than cause direct injury to a fellow employee (USLaw.com 2000).

The web-based service suggests that accommodating such “eccentric or bizarre behaviour by mentally disabled employees” would be unreasonable but advises that each case must be examined on its own facts. It concludes: “These cases appear to support discharge where the ‘direct threat’ to other employees is not ‘imminent’ but merely a potential risk. Arguably, the cases require the threatening behaviour to be substantial or, at least repetitive, and not merely a one-time ‘off-hand’ remark made in the heat of anger. Employers must balance the risk of harm to other employees by allowing a potentially violent employee with a mental disability to remain employed against the risk of liability if the employee is discharged and then sues the employer in an ADA action. When all employees are put on notice that threatening or abusive behaviour of any kind will not be tolerated and where cooperation with other employees and non-threatening behaviour is inserted as an essential function in all job descriptions, the discharge of a potentially violent mentally disabled employee – assuming the potential for violence is supported by objective medical evidence – may be a risk worth taking” (USLaw.com 2000).

In the UK, the Disability Discrimination (Meaning of Disability) Regulations (1996), specifically exclude individuals whose condition gives them a tendency to physical or sexual abuse of others, thus preventing individuals with such a condition from using the DDA in a claim for unfair employment discrimination. Section 6.8 looks specifically at mental illness and the direct-threat defence under the ADA.

6.4 United States – protectionism or paternalism?

A report by the United States House Commission on Education and Labor (1990) (which gives the legislative history to the ADA employment provisions) makes clear that employers must not be overprotective of disabled people who might be at increased risk from exposure to hazards at work. “It is critical that paternalistic concerns for the disabled person’s own safety are not used to disqualify an otherwise qualified applicant,” it states.

An employment court case in the US has focused minds on the direct-threat defence and challenged the employer’s paternalistic right to prevent an employee knowingly taking or remaining in employment where the nature of the employee’s condition is such that the work or work environment would create a special risk to that individual’s health or safety, without risking the health or safety of other employees or members of the public (Ballard 2003).

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In the case of Echazabal v Chevron USA Inc., an oil refinery worker, Mario Echazabal, had applied for work on two occasions (1992 and 1995) at a coker unit at one of Chevron’s oil refineries in California. Echazabal had been working at the refinery since 1972, but had hitherto been employed by contractors. Even though Echazabal was capable of performing the duties of the job, a pre-employment medical revealed that Echazabal’s liver was producing excessive quantities of enzymes owing to his infection with hepatitis C. Chevron decided that exposure to hazardous chemicals and solvents at the plant would increase the risk of further damage to Echazabal’s liver and rescinded the job offer on the basis that the job would have been a “direct threat” to his health and safety. Chevron also instructed the contractor to “immediately remove” him from the refinery or find a post that prevented exposure to the hazardous agents. Echazabal subsequently lost his current job as a coker unit helper at Irwin Industries and sued Chevron and Irwin for, among other things, breaching the ADA by refusing to employ him, or even to let him continue working at the plant owing to his disability. Chevron did not dispute that Echazabal was disabled, and Echazabal did not argue that a “reasonable accommodation” could have been made.

In defending its position, Chevron cited the EEOC regulation that workers should not “pose a direct threat to the health and safety of the individual or others in the workplace”. A federal district court heard the case and ruled against Echazabal, in other words, concluding that there had been no unfair discrimination.

However, the ruling was overturned on appeal, at the US Court of Appeals for the Ninth Circuit (a court whose rulings are binding on the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington and Guam – though the decision may also be adopted by other Circuit Courts of Appeals). It ruled that the “language” of the ADA – that an individual “shall not pose a direct threat to the health or safety of other individuals in the workplace” – implies that the direct-threat defence applies only to threats against others, and not to the individual worker him or herself. It concluded that the ADA specifically defends individuals from paternalistic discrimination and that Chevron had been overprotective. The EEOC regulation cited by Chevron was ruled to be invalid since the language of the ADA itself was plain, and referred only to others.

The Court of Appeals also ruled against Chevron’s argument that performing the job without posing a threat to one’s health is “an essential function of the job”, since job functions are confined to those that constitute a part of the job performance. This fundamental principle could not be altered simply by writing any condition chosen by the employer into a job description.

However, one of the Appeals Court judges dissented against the decision. Circuit Judge Stephen Trott remarked: “I agree with the district court that Mr Echazabal has no case, and I do so for two primary reasons. First, Mr Echazabal simply is not ‘otherwise qualified’ for the work he seeks. Why? Because the job most probably will endanger his life. I do not understand how we can claim he can perform the essential functions of the position he seeks when precisely because of his disability, those functions may kill him. To ignore this reality is bizarre.” (Echazabal v Chevron USA Inc; Irwin Industries Inc).

After the Court of Appeals ruling, guidance from the trade association the Equipment Manufacturers’ Institute (EMI – now consolidated into the Association of Equipment Manufacturers) concluded: “A direct threat to a job applicant’s own health did not provide an employer with an affirmative defence to liability for employment discrimination under the ADA when the employer refused to hire the applicant” (Equipment Manufacturers’ Institute 2001). It thus advised its member companies: “For those EMI member companies whose jobs pose potential health and safety risks to disabled employees, this case demonstrates that it may be necessary to allow such employees to make their own decisions regarding the acceptability of such risks. Under the Ninth Circuit’s rule, a company looking out for the employee’s safety may

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amount to illegal paternalism under the ADA.” The EMI said that the ruling “seemingly flies in the face of OSHA Regulations and other labour laws, which emphasise the need to protect workers from harm”.

Commentators argued that the Echazabal case was important because it raised the key question: who makes the decision on whether to accept the risk – the employee or the employer? The ruling would also present problems where an employer and employee disagreed on whether or not a job carried a risk to health and safety (Greenburg 2002).

Professor Chai Feldblum of Georgetown University, an expert on disability legislation, told the Chicago Tribune: “It poses a question of how we are going to deal with paternalism. Is this an employer who was trying to take care of an employee? Or is it an employer who can still do lots of things to make sure employees are safe, but is taking the easy way out here on the back of one person.” (Greenburg 2002).

6.5 Supreme Court overturns appeal

The case went to the US Supreme Court in February 2002. During the oral hearing, Justice Anthony Kennedy, remarked that employers should not be forced to employ people who want to harm themselves. Describing such a position as “completely barbarous”, he told Echazabal’s legal representative: “You have [for example] an employee who has severe mobility problems near dangerous machines where he could be maimed, and you say that that’s just irrelevant. I think that’s an argument that’s very demeaning to a society that wants to encourage good conduct on the part of employers” (Chevron USA Inc v Mario Echazabal, oral argument before the Supreme Court). The Supreme Court eventually ruled in favour of the employer (Chevron USA Inc v Mario Echazabal, Supreme Court of the United States).

On the substantive issue, the Supreme Court held that the EEOC regulation was lawful in going further than what is precisely written in the ADA. The ADA states that an employer might lawfully discriminate against a disabled person for a number of justifiable reasons. The discrimination might include the use of “qualification standards that screen out or tend to screen out [a disabled] individual”. A job qualification standard could, for example, be “shown to be job-related . . . and . . . consistent with business necessity”, and “may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace”. The EEOC regulation goes further than the ADA by including a direct threat to the employee’s own health and safety in its definition of a justifiable defence. The court ruled that the EEOC had legitimate discretion in setting the limits on what was meant by the statute, particularly given that the words “may include” suggest that the definition was never intended to be exclusive.

The Supreme Court ruled that, when drafting the ADA, Congress had never intended the law to be interpreted exclusively – thus rebutting an argument central to Echazabal’s lawsuit. The court also ruled that Congress had never intended that an employer would not be able to defend a decision to refuse employment of a worker whose disability would threaten others outside the workplace. It said: “When Congress specified threats to others in the workplace, for example, could it possibly have meant that an employer could not defend a refusal to hire when a worker’s disability would threaten others outside the workplace? If Typhoid Mary had come under the ADA, would a meat packer have been defenceless if Mary had sued after being turned away?” (Typhoid Mary, real name Mary Mallon, was an infamous asymptomatic carrier of typhoid fever in the US in the early 20th Century. She worked as a domestic cook and unwittingly spread typhoid to at least 50 people, three of whom are known to have died. Although not guilty of any crime, Mallon was held in isolated custody on North Brother Island, New York. She later failed in an attempt to sue the health department for wrongful imprisonment.)

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Chevron had argued that the EEOC regulation was reasonable because it allowed the company to avoid the risk of violating the Occupational Safety and Health Act 1970 (OSHA). This was a reasonable view, the court concluded, since the decision by Chevron was “job-related and consistent with business necessity”.

According to the Supreme Court: “Although there may be an open question whether an employer would actually be liable under OSHA for hiring an individual who knowingly consented to the particular dangers the job would pose to him, there is no denying that the employer would be asking for trouble: his decision to hire would put Congress’s policy in the ADA, a disabled individual’s right to operate on equal terms within the workplace, at loggerheads with the competing policy of OSHA, to ensure the safety of ‘each’ and ‘every’ worker.” Thus, the Supreme Court decision prevented an unpalatable situation: that US disability discrimination law could be out of kilter with health and safety law.

Finally, on the question of paternalism – or rather the avoidance of it – the Supreme Court said: “It is true that Congress had paternalism in its sights when it passed the ADA, but the EEOC has taken this to mean that Congress was not aiming at an employer’s refusal to place a disabled workers at a specifically demonstrated risk, but was trying to give an even break to classes of disabled people, while claiming to act for their own good in reliance on untested and pretextual stereotypes. Its regulation disallows this sort of sham protection through demands for a particularised enquiry into the harms an employee would probably face.”

6.6 Lessons for the UK

In transferring the lessons of the Echazabal case to the UK, the first point to note is that, had a similar situation occurred in Britain, health and safety laws – notably the hierarchy of control procedures laid down by the Control of Substances Hazardous to Health Regulations 2002 – would have first required the employer to eliminate or reduce the exposure, so far as was reasonably practicable, rather than remove Echazabal from the post.

The Approved Code of Practice to the Management of Health and Safety at Work Regulations 1999 (MHSW ACoP) further states that employers should “identify workers who might be at special risk of harm in the workplace, including young or inexperienced workers, new or expectant mothers, night workers, home workers, those who work alone or disabled staff”. The intention is to protect these workers from harm, not to exclude them from employment. According to the MHSW ACoP, employers should (among other measures): “Combat risks at source . . .; adapt work to the requirements of the individual . . .; [and] give priority to measures which protect the whole workplace and everyone who works there, and so give the greatest benefit (ie give collective protective measures priority over individual measures).”

Thus, if the Echazabal case were transferred to the UK, could Chevron have argued successfully in court that while Mr Echazabal was at special risk because of his hepatitis, other employees were not at risk from exposure to the same hazardous chemicals in the coker plant? If not, the general duties to protect all workers – not just those with disabilities – would have required action to control the risk at source and, if the exposure could be reduced to a level that no longer posed a significant risk, obviate the need to remove the disabled employee from his post.

Clearly, this review does not include a detailed analysis of the conditions at the Chevron plant, but by speculating on how the British courts might have looked at the evidence, we can see how the HSW Act and DDA tend to dovetail rather than create conflict. As discussed above (section 4.3), the legal machinery in the UK has yet to tackle the rights of the disabled employee to choose to accept residual risks, against the right of the employer to protect vulnerable employees from harm; however, the hierarchy-of-control principles would seem to work against conflict arising in the first place.

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6.7 Direct-threat defence and mental health disabilities

Mental health disabilities, the second biggest cause of ADA discrimination charges, tend to provoke suspicion and disbelief not found with physical disabilities. Guiduli (1996) claims that there tends to be pity (though some embarrassment) for those with physical disabilities but that mental health disorders tend to provoke apprehension among the public. Guiduli argues that employers in the US can use the direct-threat defence to unfairly discriminate against people with a mental health disability.

Guiduli argues that while mental illness differs from other disabilities in its manifestations (and the associated misunderstanding by non-specialists) it also differs in the mode of treatment – the use of psychotrophic medication. Physical disabilities, she argues are “easier to deal with”, with standard diagnoses and treatments and more reliable predictions of recovery time.

The direct-threat defence requires an individualised assessment of risk, using reasonable medical judgment and current knowledge. The assessment must determine the likely duration of the risk, the likelihood, nature and severity of the potential harm, and the imminence of the potential harm. Employers are also expected to make a reasonable accommodation for a disabled person who is otherwise qualified for the job.

A direct threat is defined under the ADA as a significant risk to the health and safety of other individuals in the workplace that cannot be eliminated by reasonable accommodations. However, as we have seen, the EEOC guidelines interpret the ADA standard as risk to the individual him/herself or others. Guiduli (1996) criticised the EEOC’s stance for being overprotective and patronising to the individual – a point that later became central to the Echazabal case (above) – and against the US Congress’s desire to empower the individual rather than being paternalistic.

Guiduli claims that, “preceded by their reputation as a dangerous group of individuals, the claims of the mentally ill are vulnerable to the direct-threat defence. By interpreting the defence to have a ‘risk to self’ component, the present EEOC standard justifies an employer’s subjective concern that a mentally ill employee is more likely to engage in self-mutilation or other self­destructive behaviour. The EEOC has provided a crutch, then, for employers who simply do not want disabled individuals in their midst.”

In the case of mental illness, the medical standard used in the direct defence test centres on the prediction of the employee’s dangerousness. However, says Guiduli (1996), “reliance on medical knowledge is especially difficult in the area of mental illness because of the irregular and episodic nature of this impairment. Moreover, the definitions and diagnoses of mental illness remain in constant flux. If the reasonable judgment standard evolves into a battle of experts, a mire of clinical predictions providing little guidance to employers will result. If these basic mental health issues are so bedevilling to a practising psychiatrist, imagine the varying and complexity of issues facing employers who will have to address the needs of mentally disabled employees, who may run the gamut from a salesman with psychotic delusions, to an assembly line worker with attention-deficit disorder, to a bus driver with panic attack disorder.”

According to Guiduli, the EEOC standards “do not adequately shield the mentally ill from the risk that employers will overuse the safety defence with respect to them. Empirical evidence illustrates that employers embrace the myths that disabled employees plague the workplace with safety risks and that those with mental disabilities pose a special danger,” (Guiduli 1996).

Guiduli argues that medication used to treat some mental illness conditions create difficult issues in the context of employment and disability. If the medication is required to stabilise a condition that might otherwise mean that the employee poses a direct threat to safety (in particular to the him/herself) should this mean that the employer can require the employee to

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take the prescribed medication as a condition of employment? If so, should the employer bear the cost of the medication, in that it is a reasonable accommodation to overcome a direct threat to safety?

Neither the ADA, nor guidelines from the EEOC, adequately address these questions, says Guiduli. “The employer’s responses to perceived threats in the workplace and the use of psychotrophic medication present two of the greatest challenges for the application of the ADA to the mentally ill” wrote Guiduli (1996). “Although current standards attempt to protect the mentally ill from unwarranted use of the safety defence, the present direct threat standards fail. Silence on the issue of psychotrophic medication leaves the EEOC interpretation unfinished, especially if the current risk-to-self-or-others standard passes judicial muster. Ultimately, the law must recognise the medical advances that confront the medically ill in society.”

The “risk-to-self-or-others standard” has subsequently been confirmed by the Supreme Court ruling in the Echazabal case – leaving Guidili’s concerns unanswered.

6.8 Lessons for the UK

UK parallels with the health and safety obligations under US legislation and guidance on the Americans with Disabilities Act of 1990 were made in a recent IRS booklet on health, safety and disability at work (McGeer and Fidderman 2000). The language of the ADA seems directly applicable to the confluence of UK disability and health and safety legislation.

According to the IRS guide: “Any determination of a direct threat to health and safety must be based on an assessment of objective and specific evidence about an individual’s present ability to perform job functions, and not on general assumptions or speculations about disability” (McGeer and Fidderman 2000).

McGeer and Fidderman also comment on the example of the employee with epilepsy “wrongly excluded” from jobs involving dangerous machinery. They argue that each evaluation must consider the persons’ reliability in taking anti-convulsant medication and any side effects of such medication. They state that individuals who have no seizures because they regularly take prescribed medication, or who have sufficient advanced warning (“aura”) of a seizure so they stop the hazardous work, would not pose a direct threat to safety and should not be discriminated against.

6.9 United States – employer surveys

Bruyère (2000) surveyed public and private sector employers in the US and found that the largest “continuing barriers to employment and advancement” for persons with disabilities were lack of related experience and lack of requisite skills and training in the applicant or employee with a disability. Bruyère also lists as barriers lack of supervisor knowledge in making an adjustment, and attitudes among co-workers and supervisors towards disabled persons.

Whether these reasons were in any way fuelled by perceptions of risk to health and safety is unknown. However, Bruyère goes on to discuss respondents’ understanding of the interaction between disability discrimination legislation and other employment and health and safety legislation.

Private sector respondents were found to have significantly more uncertainty about the interaction of the ADA with other employment and health and safety legislation than their public sector counterparts (Bruyère 2000). Thirty-three per cent of federal employers and 48% of private sector respondents reported frequent or occasional uncertainty over safety issues involved in returning an injured worker to the job. Similarly, 39% of federal employers and

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7

49% of private sector respondents reported frequent or occasional uncertainty over whether health and safety regulations supersede the confidentiality requirements of the ADA. More positively, safety and/or ergonomics staff were the third most used resource in resolving accommodation and disability non-discrimination issues among employers, with 72% of federal and 54% of private sector employers utilising these professionals. Bruyère suggests that health and safety representatives, among other professionals, may be important resources for use in alternative dispute resolution procedures where conflicts arise with regard to disability.

Forty-six per cent of private sector, and 28% of federal employers were frequently or occasionally uncertain about whether worksite modifications or ergonomic changes constitute “reasonable accommodations”, while 42% of private sector, and 33% of federal employers were frequently or occasionally uncertain about whether or not it is permissible to discipline a disabled employee who is a risk to self or others (Bruyère 2000).

In a UK/US comparative study by the same author, Bruyère (1999) concluded that “US respondents reported significantly less certainty about the interaction of the ADA and other employment and health and safety legislation than their British counterparts . . . Respondents from the UK reported the greatest degree of uncertainty in the area of work-related injury and the DDA.”

THE POPULAR PRESS

Our research unearthed few newspaper references to the health and safety at work aspects of disability management, however two are worthy of note. The first appeared in the Scottish Sunday newspaper, The Sunday Herald (Wilson 2000). Author Steve Wilson’s commentary on the employment provisions of the DDA stands out in that he states explicitly that employers “are not expected to make any changes which would break health and safety laws” but that employers are required to make reasonable changes to the work methods or work environment to accommodate disabled workers. As we have seen, few UK authors have discussed health and safety in this context.

At the opposite extreme, an opinion column in the Daily Mail typifies the prejudicial views about disabled people’s abilities or impairments, and in particular how they might affect others’ safety, that the DfEE Code of Practice is designed to dispel. Columnist Julian Thompson (Thompson 2000) is highly critical of what he calls the “politically correct agenda of human and civil rights” in response to proposals, contained in the final report of the Disability Rights Task Force, to bring the armed forces within the scope of the DDA (Disability Rights Task Force (1999).

According to Thompson: “In recent years, politicians and professional do-gooders have tried to impose a highly damaging, politically correct agenda of human and civil rights on our under­funded and over-stretched armed forces. First it was women. Now they are insisting that disabled people should have the right to join the armed forces.”

Thompson, a Falklands War veteran, wrote: “It is all very well to suggest that disabled people could work as, say cooks or clerks in the Army. War just isn’t that simple. In my brigade in the Falklands I had to use cooks and clerks to dig trenches, man positions and, if necessary, to fight. We would not have had the time to build wheelchair ramps or to protect disabled soldiers who could not fight with sufficient ferocity.”

According to Thompson, “Our fighting men know they may be required to do things which are in breach of all normal health and safety regulations.” Thus, he says: “To put it brutally, I do not want an army with the politically correct quotas of disabled people, women, ethnic minorities and gays . . . So political activists and the enforcers from the European Union must recognise

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that soldiers, sailors and airmen are not civilian employees and that legislation designed to cover civil employment and civil rights is simply not relevant to their condition.”

In the United States, the potential for conflict between safety and disability rights took centre stage in an article, and subsequent letter to the editor, in the US daily newspaper the Washington Post.

First, an article by Kirstin Grimsley claimed that “disabled workers’ rights and public safety concerns in the transportation industry may be on a collision course” (Grimsley 1997). According to Grimsley a spate of ADA lawsuits was “raising concern in industry circles that some efforts to improve job opportunities for the disabled could make the workplace a riskier place for their co-workers and the public.” In particular, she referred to a class action against United Parcel Service over employment decisions based on its belief that truck drivers with vision in only one eye posed a direct threat to safety.

Grimsley gave examples of several fatal accidents involving workers with various disabilities, such as epilepsy, colour blindness and hearing impairment. In one case, a fatal train accident had apparently been caused “because an engineer had concealed from his employer the fact that he was colour blind and had only partial vision in one eye”. The engineer and two others died when a commuter train went through a red signal and hit another train.

Balancing safety concerns and the rights of disabled people puts employers in a difficult position says Grimsley. She quotes a spokesman for the National Chamber of Commerce Litigation Center who describes employers as being “between a rock and a hard place”, fearing legal action for failing to employ disabled people on the one hand, and being found liable for damages if the disabled person causes harm on the other.

A letter to the editor of the Washington Post described Grimsley’s article as “sensational”. Grimsley is accused of choosing to describe incidents involving disabled people “designed more to scare than to educate the reader” (Decker 1997).

In his letter, Curtis Decker, of the Washington-based National Association of Protection and Advocacy Systems, claimed that disabled people are often forced to hide their disability in the knowledge that employers make assumptions based on “fear, myths and stereotypes”. According to Decker: “The ADA is designed to encourage people to disclose their disabilities by providing them with protections from discrimination based on the disability alone. It gives the employee and the employer an opportunity to explore accommodations that enable the employee to perform the essential functions of the job and to evaluate whether there is a risk of a direct threat to the safety of others.”

Decker claims that the fatal incident involving the rail engineer may well have been avoided if the mechanisms afforded by the ADA – such as an offer of medical screening and the “direct threat” analysis – had been fully utilised.

CONCLUSION

This review has noted that while health and safety is cited as a justification for discrimination against disabled people in a significant proportion of DDA-related employment tribunal cases, there is a dearth of rigorous research on the extent to which health and safety issues conflict, or are in harmony, with disability management. There is a major disparity between the importance of the issue – as indicated at employment tribunals – and evidence-based knowledge. This is surprising given the extensive literature and surveys on barriers to the employment of disabled people.

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8

9

A debate which is common to both the UK and the US, where analogous disability and health and safety legislation is in force, concerns the extent to which employers are able to be paternalistic, or overprotective, to disabled people. Protecting the health and safety of disabled people by denying them employment creates further, possibly unjustified, discrimination against individuals who, arguably, should be able to express their right to balance the benefits of gaining and retaining employment against possible risks to their own health and safety.

People with some kinds of disabilities are at greater risk than others of facing barriers to their employment. In particular, people with mental health conditions or epilepsy may face the greatest degree of discrimination on grounds of health and safety – much of which may be unjustified. Media reporting of disability cases that involve potential conflicts with health and safety are rare; however, there is little evidence that the popular press is doing much to dispel prejudicial and unfounded views that disabled people in the workplace pose an unacceptable risk to the safety and health of themselves and others.

The research by IRS will help to fill the gaps in the evidence base of this important subject.

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Greenburg J C (2002). Justices examine refinery’s refusal to hire ill worker. Chicago Tribune, 28 February 2002.

Grimsley (1997). Disabilities Act dilemma: job rights versus job safety; bias suits pose public risk, employers say. Washington Post, 8 April 1997.

Guiduli K A (1996). Challenges for the mentally ill: the “threat to safety” defence standard and the use of psychotropic medication under title one of the Americans with Disabilities Act of 1980. 144 University of Pennsylvania Law Review 1149.

Health and Safety at Work etc Act 1974. Chapter 37. ISBN 0 10 543774 3. HMSO, London.

Health and Safety Commission (2000). Management of health and safety at work. Management of Health and Safety at Work Regulations 1999. Approved Code of Practice and guidance. L21. ISBN 0 7176 2488 9. HSE Books, Sudbury.

House Commission on Education and Labor (1990). Americans with Disabilities Act of 1990, House of Representatives Report no.485, 101st Congress, second session, part 2. Reprinted in: United States Code, Congressional and Administrative News, 267, 330 (1990).

Industrial Relations Services (1997a). Implementing the DDA: an EOR survey of employers. Part 1. IRS Equal Opportunities Review 71, 20–26.

Industrial Relations Services (1997b). Implementing the DDA: an EOR survey of employers. Part 2. IRS Equal Opportunities Review 71, 18–25.

International Labour Organisation (2001). Code of Practice on managing disability in the workplace. Tripartite meeting of experts on the management of disability in the workplace. ILO, Geneva.

Jackson C J, Furnham A and Willen K (2000). Employer willingness to comply with the Disability Discrimination Act regarding staff selection in the UK. Journal of Occupational and Organisational Psychology, 73(1), 119–130.

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James P and Bruyère S (1995). Handling disability – implications of the new law. Occupational Health Review, 58, 21–24.

Johnson A (2002). Job retention and advancement in employment: review of research evidence. In-house report no.98. Department for Work and Pensions. ISBN 1 85197 985 9. www.dwp.gov.uk/asd/asd5/IH98.pdf.

Leverton S (2002). Monitoring the Disability Discrimination Act 1995 (Phase 2). In-house Report no.91.ISBN 1 85197 978 6. Department for Work and Pensions, London. www.dwp.gov.uk/asd/asd5/IH91.pdf.

McGeer P and Fidderman F (2000). Fit for the job: health, safety and disability at work. ISBN 1 870771 51 6. Industrial Relations Services, Eclipse Group, London.

Meager N, Bates P, Dench S, Honey S and Williams N (1998). Employment of people with disabilities: assessing the extent of participation. DfEE Research Series RR69, DfEE Publications, Annesley, Nottingham.

Meager N, Hibbett A (1999). Disability and the labour market: findings from the DfEE baseline disability survey. Labour Market Trends, September, 467–476.

Mind (2000). Creating accepting communities: report of the Mind inquiry into social exclusion and mental health problems. Mind, London.

NHS Executive/Department of Health (2000). Looking beyond labels. Widening the employment opportunities for disabled people in the new NHS. DoH, London. www.doh.gov.uk/nhsequality/lookingbeyondlabels/lbl.pdf.

Ruggeri-Stevens and Saunders (2002). No safe excuses for disability. Health and Safety Bulletin, 311 (August/September), 7–8.

Sonnenberg S P (2000). Coping with mental disabilities in the workplace: tips for employers. Employee Benefit News, June 2001.

Stafford B (2000). Long-term illness and impairment: who needs help with job retention. Paper presented at the Joseph Rowntree Foundation seminar on Job retention in the context of long­term illness, 1 March 2000.

Stuart N, Watson A and Williams J, Meager N and Lain D (2002). How employers and service providers are responding to the Disability Discrimination Act 1995. In-house Report no.96 ISBN 1 85197 977 8. Department for Work and Pensions, London. www.dwp.gov.uk/asd/asd5/IH96.pdf.

Thompson J (2000). Why our army can take only the fighting fit. Daily Mail, 21 December 2001, p.4.

Trades Union Congress (2002a). TUC welcomes health and safety move to DWP. TUC press release 25 July 2002.

Trades Union Congress (2002b). Keeping people at work: bringing prevention, rehabilitation and compensation together - a TUC briefing explaining the arguments for the move to DWP. Available on the TUC website at www.tuc.org.uk/h_and_s/tuc-5291-f0.cfm

US Department of Justice (date not published).Questions and answers: the Americans with Disabilities Act and persons with HIV/AIDS. US Department of Justice Civil Rights Division Disability Rights Section, Washington DC, USA, www.usdoj.gov/crt/ada/pubs/hivqanda.txt.

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USLaw.com (2000). Employee lawsuits: intentional torts and mental disabilities. Employers are liable for violent, deranged employee behaviour. www.uslaw.com/library. (Taken from: Lusky P M (1997). Slam the door on employee lawsuits: keep your business out of court. ASIN: 1564143112, Career Press, 192pp.)

Walters D and James P (2002). Administering prevention, compensation and rehabilitation: the case for more joined-up government. TUC, London, www.tuc.org.uk/h_and_s/tuc-5290-f0.cfm.

Walworth C R, Damon L J and Wilder C F (1993). Walking a fine line: managing the conflicting obligations of he Americans with Disabilities Act and workers’ compensation laws. Employee Relations Law Journal, 19(2), 221–232.

Wilson S (2000). Law gets its act together – employers cannot now discriminate against disabled people after a change in the law. Sunday Herald, 13 August 2000, p.28.

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CHAPTER 2 REVIEW OF UK CASE LAW

1 AIMS

The aim of this research project is to identify the extent to which employers use health and safety requirements as a “false excuse” for not employing sick or disabled persons. The case review examines employment tribunal decisions, as well as those taken at appellate level in the Employment Appeal Tribunal (EAT) and Court of Appeal, in which employers have cited health and safety concerns as reasons for not recruiting or retaining disabled persons, or for subjecting them to some other employment detriment.

This case analysis focuses on the aims listed in the research proposal. Section 1 of the review gives a brief outline of the legal framework. Section 2 addresses the specific requirements of the research project in order to provide statistical information on:

· The scale of employers’ use of health and safety as a reason for not recruiting disabled employees

· The scale of employers’ use of health and safety as a reason for not taking steps to retain disabled employees

· The scale of employers’ use of health and safety as a reason for subjecting disabled employees to some other employment detriment (e.g. restricted duties or a failure to promote)

· The extent to which health and safety reasons are used as an unnecessary barrier to the employment of people with a disability, i.e. as a “false” excuse

· The nature of the perceived health and safety barriers, including how and why employers reach decisions on employing sick and disabled people in relation to health and safety

· Whether people with certain conditions are more likely to have health and safety issues used against them than others

· Whether de facto blanket bans are imposed against certain forms of disability.

Information on differences between industrial sectors, public and private sector, enterprise size, regional and ethnic variation, also listed in the research proposal, is not readily available from tribunal decisions, and is not included.

2 SCOPE OF CASE REVIEW

2.1 “Sick or disabled persons”

The tender specification makes reference to “sick or disabled persons”. This report reviews cases brought under the Disability Discrimination Act’s (DDA) employment provisions (Part II). In order to bring themselves within the protection of the Act, applicants must show that their condition falls within the definition of disability given in section 1 DDA. Persons whose condition does not meet the statutory definition are not “disabled” for the purposes of the Act and their cases fall at this hurdle. They may nevertheless suffer discrimination on the grounds of their condition. A review of cases brought under the DDA will necessarily exclude evidence of discrimination against those who are sick, but who do not meet the DDA’s definition of disability. Evaluation of the extent of use of health and safety requirements as a false excuse for not employing sick people, as opposed to disabled persons, is thus beyond this reports scope.

2.2 Health and safety requirements as a “false excuse”

The tender specification for the research project uses the term “false excuse” in relation to employers’ use of health and safety reasons. The exact meaning of the term is far from certain

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3

and a number of different interpretations may be applied to it. For example, “false” may mean not in accordance with facts; invalid; intended to be misleading, or based on mistaken or irrelevant ideas (Collins Concise English Dictionary). It is capable of covering a wide range of situations in which employers cite health and safety concerns in relation to disabled persons, including disingenuous use to avoid perceived added costs, speculative or mistaken perceptions of risk and paternalistic, but unnecessary, decisions taken in what the employer considers to be the disabled person’s best interests.

Alternatively, and perhaps more appropriately in the context of a case review, “false” might be taken to mean “unlawful”. The assumption here is that where an employer has failed to justify its discriminatory use of health and safety reasons under the DDA, those reasons are false. This review adopts a core definition of “false” as “unlawful” and identifies relevant cases in which justification has failed as instances of “false” use of health and safety reasons.

However, the flip side of this interpretation must be that where an employer succeeds in showing justification under the DDA, its health and safety reasons are valid or “true”. The premise here is that the DDA acts as an effective filter, capable of distinguishing between those cases where reasons are necessary to meet health and safety requirements, and those that are not. Analysis of cases brought to tribunal suggests that this may not always be so.

In summary, for the purposes of this review, “false excuse” includes cases where:

· an employer fails under the DDA to show that it is justified in using health and safety requirements as a reason for subjecting disabled persons to employment detriment; and

· an employer succeeds in showing justification under the DDA, but the alleged discriminatory action may not be necessary to meet health and safety requirements.

· All cases identified as falling into the first category have been reviewed. A sample of cases falling into the second category were reviewed.

CASES REVIEWED

The employment provisions (Part II) of the DDA came into effect on 2 December 1996. The Department for Work and Pensions (DWP) notes that by 1 September 2000 a total of 8,908 claims had been issued.1 6,183 of these cases had reached an outcome, 18.8% of concluded cases being decided by tribunal. During the period, 996 cases reached a main hearing at tribunal and employers sought to rely on the defence of justification in 385 (38.7%) of these. In 79 of these cases (20.5%) employers cited health and safety reasons as justifying their actions.

This review uses the case database developed as part of the DWP’s monitoring of the DDA as a source of employment tribunal decisions up to 1 September 2000.2 Employment tribunal decisions since 1 September 2000 were obtained from the Disability Rights Commission (DRC) in Manchester which receives transcripts of cases directly from employment tribunal offices.

No accurate figures are available for the numbers of claims lodged or decided during the period 1 September 2000 to 31 March 2002, when the follow up sweep of cases for this review was conducted manually at the DRC’s offices. Cases in which health and safety was cited as justification were identified and extracted from all cases received by the DRC, as were a sample of cases in which health and safety issues arose in other contexts. The term “health and safety” was interpreted broadly to include a sample of cases in which concerns about an individual’s fitness for work featured in employers’ reasons, as well as those in which health and safety requirements per se were central.

1 Department for Work and Pensions, Monitoring the Disability Discrimination Act 1995 (Phase 2), In-house report 91, www.dss.gov.uk/asd/asd5/2 Note that at the time of drafting, approximately 50 of these cases have been received as a result of access problems experienced by Incomes Data Services.

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The manual sweep was conducted over a two day period. Although every effort was made to ensure that all relevant cases were identified, the volume of cases to be scanned may have resulted in a few relevant cases being missed

In all, 134 tribunal decisions were identified and reviewed. These form the basis of this report. It must be remembered that only cases reaching tribunal are included. As these represent a small percentage of the number actually commenced (tribunals had decided only 18.8% of concluded cases at 1 September 2000), the figure of 134 is likely to be the tip of the iceberg. Informed sources suggest that the scale of usage of health and safety reasons may be more widespread than the number of cases identified for this review would indicate.3 Views have been expressed that health and safety operates as a subtext behind many disability discrimination cases and that there is a tension between health and safety protectionism and non-discrimination whether this arises as an explicit issue or not.4

Finally, in addition to the resources above, electronic legal databases were scanned to identify and access reported cases, most of these being at appellate level.

SECTION 1

1.1 The legislative framework

The DDA creates two discrete forms of discrimination. Employers have a duty not to treat disabled persons less favourably than others for a reason related to that person’s disability unless they can show that they are justified in doing so.5 Employers also have a duty to make reasonable adjustments to premises or working arrangements where features of either put a disabled person at a substantial disadvantage.6 Again, this is subject to a defence of justification. Discrimination arises from unjustified less favourable treatment, or an unjustified failure to make reasonable adjustments. Less favourable treatment cannot be justified in circumstances where the duty to make reasonable adjustments has been triggered but not met, unless the employer can show that it would have been justified even if the duty to make reasonable adjustments had been met.7

The burden of proof rests with an employer to show that its allegedly discriminatory actions are justified. The burden is discharged where an employer is able to show that the less favourable treatment, or failure to make reasonable adjustments, is for a reason that is “…both material to the circumstances of the particular case and substantial.”8

Within this framework employers may plead health and safety requirements as reasons that are material to the circumstances of the particular case and substantial.

Health and safety issues also arise less directly where an employer’s response to concerns is to conclude that no reasonable adjustments are available that would allow a disabled person to work safely. Where the employment tribunal agrees with the employer’s conclusion, the justification defence will not come into play as no potential breach of duty has occurred. The status of the health and safety reason as either a “false” (though lawful) excuse or a necessary one then depends upon the quality of the enquiry into the availability of reasonable adjustments.

3 Nicola Dandridge, Head of Equality at Thompsons Solicitors and Director of DDA Representation and AdviceProject; Nick O’Brien, Director of Legal Services, Disability Rights Commission.. 4 Ibid. 5 Section 5(1) DDA. 6 Section 5(2) DDA. 7 Section 5(5) DDA. 8 Section 5(3) DDA applies this condition to less favourable treatment, s.5(4) applies it to a failure to makereasonable adjustments.

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Sub-sections 6(3) and (4) DDA impose objective criteria by which the reasonableness of adjustments is assessed by tribunals.

The EAT laid down sequential steps to be taken by tribunals in deciding whether an employer has breached the duty to make reasonable adjustments. It emphasised that tribunals must apply objective tests both to whether steps were reasonable and whether a failure to take such steps was objectively justified. Furthermore, tribunals should not be afraid to substitute their decisions for those of an employer.

Sections 6(3) and (4) DDA and the EAT’s ruling give tribunals teeth to ensure that employers do not use health and safety as an unnecessary reason for avoiding reasonable adjustments that would enable disabled persons to work safely.

Section 59 DDA recognises indirectly the potential conflict between duties under the 1995 Act and health and safety legislation. It provides that nothing done “in pursuance of” another enactment or instrument shall be unlawful under the DDA. Employers may cite s.59 as a quasi­defence to allegedly discriminatory actions done to meet responsibilities under health and safety law. In practice, employment tribunals and the appellate courts prefer to deal with health and safety requirements under the auspices of the justification defence by testing whether those reasons are both material and substantial, rather than by assessing whether the allegedly discriminatory actions have been done “in pursuance of” health and safety law.

1.2 Judicial interpretation of the justification defence

According to the Code of Practice accompanying the employment provisions of the DDA, “material” means that the reason has to relate to the individual circumstances; a “substantial” reason is one that is more than just trivial or minor. Judicial interpretation has added to this guidance.

Considering “material”, the EAT held that materiality should be assessed from the perspectives of both employer and employee so that the interests of both may be balanced. The leading Court of Appeal’s decision on justification, approved this approach and added that material implies a reasonably strong connection between the employer’s reason and the circumstances of the case. It also held that “substantial” means that a reason must carry real weight and be of substance.

The Court of Appeal affirmed that the justification defence sets a low threshold for employers to satisfy. The EAT had held that the defence must succeed where an employer shows that its reason is material and substantial, not that it may succeed. The tribunal has no discretion to substitute its own decision for that of the employer simply because it disagrees with it. The Court of Appeal approved this reasoning and added that an employer’s reason will not meet the low threshold only if:

· it has been taken in the absence of a risk assessment; or · otherwise than on the basis of appropriate medical advice, or · if it is irrational in the sense of lying outside the range of responses open to a

reasonable employer. The decision in the leading Court of Appeal’s descision has important implications for cases where health and safety concerns are pleaded as justification for not employing disabled persons.

SECTION 2

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2.1 Case statistics

A total of 134 cases were analysed for this review. These include decisions reached by employment tribunals, the Employment Appeal Tribunal (EAT) and the Court of Appeal. Table 1 shows the numbers of cases in which health and safety reasons were cited by employers in relation to:

· a failure to recruit disabled persons; · a failure to retain disabled persons; · some other employment detriment.

Table 1 Part II DDA cases in which health and safety reason cited by employer – by employment opportunity

Number of case reviewed Percentage of cases reviewed

Health and safety as a reason for not 26 19.4% recruiting disabled person

Health and safety as a reason for not 84 62.7% retaining disabled person

Health and safety as a reason for some other 24 17.9% employment detriment

TOTAL 134 100%

* n = the total number of respondents

The most common “other employment detriments” were imposition of driving restrictions (7cases) and restriction of normal duties (12 cases). Other detriments were:

· supply of a poor reference for a reason related to disability; · refusal of promotion;· denial of ‘top up’ payments to sickness benefits; · failure to discuss redundancy plans with a disabled employee, and· transfer to another branch of the employer’s enterprise.

Table 2 shows the number of cases in which the employer succeeded in showing that it wasjustified in denying employment opportunity to disabled persons.

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Table 2 Part II DDA cases in which the employer’s justification defence was successful – by employment opportunity

Number of cases % of cases reviewed Justification: success (by %)

Health and safety as a 26 19.4% 22 (84.6%) reason for not recruiting disabled person

Health and safety as a 84 62.7% 51 (60.7%) reason for not retaining disabled person

Health and safety as a 24 17.9% 19 (79.1%) reason for some other employment detriment

TOTAL 134 100% 92 (68.6%)

Employers succeeded in showing that their actions were justified in 68.6% of cases in which health and safety was cited as a reason for not employing disabled persons. Employers’ success rates are notably high in relation to non-recruitment, with employer justifying their actions at tribunal in 84.6% of cases.

Table 3 shows the number of cases in which the employer’s defence of justification did not succeed. In these cases the employer failed to prove that denial of employment opportunity to a disabled person was for a health and safety reason material to the circumstances of the particular case and substantial.

Table 3 Part II DDA cases in which the justification defence failed – by employment opportunity

Number of cases % of cases Justification: reviewed reviewed failed (by %)

Health and safety as a reason for not recruiting disabled person

26 19.4% 4 (15.3%)

Health and safety as a reason for not retaining disabled person

84 62.7% 34 (40.4%)

Health and safety as a reason for some other employment detriment

24 17.9% 2 (9.5%)

TOTAL 134 100% 40 (29.8%)

Two cases reviewed did not proceed to justification, one being a preliminary hearing on whether the case should be permitted to proceed out of time, the other raising a point concerning Health & Safety at Work Act s.7, but failing under the DDA.

As table 3 shows, in almost 30% of cases where employers have sought to justify their discriminatory actions on health and safety grounds, their reasons have failed to meet the low threshold of justification set out in sections s.5(3) and (4) DDA. The figure rises to over 40% in

41

l

relation to the non-retention of disabled persons. The total figure of 30% of cases constitutes a significant core of “false excuses” for not employing sick or disabled persons. These cases meet the definition given in the Introduction to this review, of “false excuse” as a health and safety reason that has failed to justify the employer’s discriminatory action at tribunal. They are considered in more detail in Section 3.

Table 4 shows whether people with certain conditions are more likely to have health and safety issues raised against them than others.

Table 4 Part II DDA cases: distribution of health and safety issues by condition

Condition Incidence of Number of cases in Number of cases in condition number which employer which employer fails of cases justifies actions to justify actions (%

of total cases) Epilepsy 24 18 6 (25%)

Back, neck, upper limb 23 17 6 (26%) impairment

Diabetes 21 15 7 (33%)

Mental impairment 19 12 7 (37%)

Impaired mobility 16 9 7 (44%)

Visual impairment 12 9 3 (25%)

Hearing impairment 7 4 3 (43%)

Post viral syndrome 2 1 1 (50%)

Other 10 7 2 (20%)

TOTAL 134 92 (68.6%) 42 (31.3%)

Statistical analysis of cases shows sporadic use of health and safety reasons against certain conditions, rather than clear evidence of de facto blanket bans. However, relevant detail was frequently not available in case transcripts and a lack of findings should not be taken to indicate that bans are not imposed.

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1

CHAPTER 3 TELEPHONE SURVEY OF SME EMPLOYERS

SCOPE OF SURVEY

A telephone survey of small and medium-sized organisations was conducted by NOP Business. Small organisations were defined as those with fewer than 50 employees, and medium-sized as those with 50-249 employees. The fieldwork was carried out in May 2002. A total of 501 interviews were completed from a representative national sample. The interviews, each of which lasted approximately 25 minutes, were conducted with a senior manager with overall responsibility for the recruitment and retention of staff. Minimum quotas were set by region, employee size and sector.

Of the 501 respondents, 325 were based in England, 76 in Wales, and 100 in Scotland. A separate analysis of the findings for the sample in Scotland and in Wales is contained in Appendix 8. The distribution by sector is shown in the following table.

Table 1 Distribution of respondents by sector

Sector Number of respondents Per cent of respondents(n=501)

Agriculture and forestry

Mining and utilities

Manufacturing

Construction

Wholesale/retail/hotels and restaurants

Transport and communication

Financial administration/real estate

Public administration and defence

Health, education etc

Don’t Know/No answer

9

16

79

27

139

26

73

15

111

6

2

3

16

4

28

5

15

3

22

1

* n = the total number of respondents

Quotas were also set for employee size bands and the distribution by size is shown below.

Table 2 Distribution of respondents by size of organisation

Number of employees in organisation Number of respondents (n=501) Per cent of sample

Under 5 45 9

5-14 109 22

15-49 160 32

50-99 78 15

100-249 109 22

The interview schedule is included in Appendix 1. Some key findings are set out below under the relevant sections.

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2 RECRUITMENT AND SELECTION

Interviewees were asked a series of questions about recruitment practices. Over four-fifths (84%) said that they normally advertised job vacancies. However, this varied by sector – 77% of respondents in manufacturing normally advertised vacancies compared to 95% in the health and education sector.

At the initial job application stage, 54% of respondents said that they asked applicants to state if they have a disability, ill-health condition or injury. The respondents who used recruitment agencies (94 respondents) were asked whether the agency asked job applicants if they have a disability, ill-health condition or injury. Interestingly 50% said that they did not know. Of those who did know the agency’s policy, half said that the agency did not ask, and the other half said that they did.

Interviewees were also asked about their policy prior to making an offer of employment. The responses were divided. Half (50%) said that they asked potential employees if they have a disability, ill-health condition or injury, compared with 48% who do not.

Health screening was carried out as part of the recruitment process by 30% of interviewees. However the proportion rose to 49% in larger organisations with between 100-250 employees.

3 ORGANISATION OF HEALTH AND SAFETY AND OCCUPATIONAL HEALTH SERVICES

A series of questions focused on the personnel responsible for health and safety and for occupational health services within the organisation. Responses are shown below:

Table 3 Organisation of health and safety and occupational health services

Responsibility Yes (%) No (%) Don’t Know (%) Is there a manager in overall charge of health and safety? 86 13

Is there an OH Department? 16 83 1

Does organisation purchase occupational health service 30 66 4 from external provider?

Does organisation use services of an occupational 29 68 2 physician?

Does organisation use services of other doctors? 23 75 2

Does organisation use services of an OH nurse? 14 83 2

Does organisation use services of any other nurse? 7 92 1

The proportion of organisations with specialist personnel varied by size of organisation. Larger organisations were more likely to have a safety specialist in charge of health and safety, to use the services of an occupational physician or OH nurse, and to purchase OH services from an external provider.

RISK ASSESSMENTS

The Management of Health and Safety at Work Regulations 1999 (MHSW) require an employer to make a suitable and sufficient assessment of the risks to the health and safety of its employees. The MHSW Approved Code of Practice to the regulations states that employers, in

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4

5

undertaking risk assessment, should identify groups of workers who might be particularly at risk. Disabled workers are identified as one of these groups.

Interviewees were asked whether they conduct health and safety risk assessments of new employees. Over two-thirds (69%) said that they did. The proportion saying yes, increased from 58% of those with less than 15 employees, to 73% of those with 15-49 employees and 76% of those with more than 50 employees. Asked specifically about whether they conducted health and safety risk assessments of new employees with disabilities, ill-health conditions or injuries, the proportion was lower – 56%. Larger organisations were more likely to conduct risk assessments for these employees, the proportion rising from only 39% in organisations with less than 15 employees to 72% in those with 100-249 employees.

Employers were also asked whether they revisited their health and safety risk assessments. Nearly two-thirds (65%) said they did so in relation to new employees, 54% in relation to new employees with disabilities, ill-health conditions or injuries, and 60% in relation to existing employees who develop, or return to work with a disability, ill-health condition or injury. However, 6% of interviewees said they did not know the answer, while a further 20% did not answer the question.

A broad question was asked as to whether organisations had made any changes to their health and safety arrangements to help them recruit or retain someone with a disability, ill-health condition or injury. Only 15% said they had made changes to recruit someone, compared with over twice as many (34%) which had made changes to keep on someone with a disability, ill health condition or injury. But 3% did not know and 60% did not answer the question.

DISABILITY POLICY Just under half (45%) of interviewees said that they had a disability policy. This proportion varied by sector with considerably higher proportions in the public sector having a policy than in the private sector as shown in the table below.

Table 4 Proportion of respondents with a disability policy by sector

Sector Per cent with disability policy

Agriculture and forestry 11

Mining and utilities 38

Manufacturing 34

Construction 30

Wholesale/retail/hotels and restaurants 46

Transport and communication 42

Financial administration/real estate 33

Public administration and defence 80

Health, education etc 65

All sectors 45

The majority (90%) of 227 respondents in organisations with a disability policy said that the policy took account of both disabled people and those with ill-health conditions or injuries. Over four-fifths (84%) of those with a policy also said that the policy made a reference to health and safety: the lowest proportion was in manufacturing (74%) and the highest in public

45

administration (92%) and the retail and hotels and restaurants sector (91%), followed by construction (88%).

5.1 Employment of disabled people All interviewees were asked whether they employed any disabled people. A total of 160 organisations (32%) said that they did, compared with 66% that did not. Only 2% said that they did not know. Over half (58%) only employed one or two disabled people, with the mean score being 2.31. The interviewer then provided the broad definition of disability set out in the DDA. Interviewees were then asked whether they considered that they employed more disabled people than they had originally estimated. Interestingly 143 organisations (29% of all respondents) said that they employed a larger number of disabled people when the DDA definition was used.

5.2 Overcoming barriers to the recruitment of individuals with a disability, ill­health condition or injury

Interviewees were asked whether their organisation had ever overcome any health and safety difficulties associated with recruiting someone with a disability, ill-health condition or injury. Overall, fewer than one in five (18%) said that this had happened. The proportion in Wales was lower (13%) and in Scotland higher (25%), than in England (18%).

In total, 92 organisations had experiences of overcoming these difficulties. Of the 92, four out of five (79%) said that they had needed to make adjustments. The 73 organisations that had made adjustments were asked what type of adjustments they had made. The responses are shown in Table 5.

Table 5 Adjustments to overcome health and safety difficulties in recruitment

Type of adjustment No of organisations Per cent of organisations which (n=73) had made adjustments (n=73)

Allowing the person to be absent during 64 88 working hours for rehabilitation, assessment or treatment

Giving the person, or arranging for him or 53 73 her to be given, training

Acquiring or modifying equipment 43 59

Altering the person’s working hours 42 58

Providing supervision 34 47

Assigning the person to a different place 28 38 of work

Transferring the person to fill an existing 26 36 vacancy

Modifying instructions or reference 26 36 manuals

Adjustments to premises 22 30

Modifying procedures for testing or 21 29 assessment

Providing a reader or interpreter 9 12

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Interviewees were then asked whether their organisation had ever not offered a job to someone with a particular condition on the grounds or health and safety. A total of 80 respondents (16%) said that this had happened. The responses by type of condition are shown below.

Table 6 Proportion of respondents not offering a job by type of condition

Type of condition Number of organisations not Per cent of all organisations offering a job (n=501) (n=501)

Musculoskeletal conditions 27 5

5

3

3

3

3

2

2

2

2

2

8 2

1

4 1

1

Mobility or dexterity difficulties 24

Sight impairment 17

Skin conditions 15

Heart condition 14

Mental illness 14

Chest conditions 12

Epilepsy 11

Hearing impairment 10

Learning disabilities 10

Diabetes 8

Other neurological conditions

Dyslexia 6

HIV/AIDS

Stomach/liver conditions

The 80 organisations were asked whether any assistance might have helped in recruiting the individual concerned. Just over half (41) thought that some form of assistance would have helped. Expert advice or help from the individual concerned were both cited by 34 organisations

and 21 (26%) which mentioned help from managers. Some form of financial assistance was cited by 18 organisations (23%).

(43%). This was followed by 24 organisations (30%) which mentioned help from co-workers

5.3 Overcoming health and safety barriers to the retention of individuals with a disability, ill-health condition or injury

Overall, 168 organisations (34% of respondents) said that they had overcome health and safety barriers to the retention of an existing employee’s with a disability, ill-health condition or injury. Of these, 144 (86%) had made adjustments in order to overcome these difficulties.

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Table 7 Adjustments to overcome barriers to retention

Type of adjustment No of organisations Per cent of organisations that (n=144) had made adjustments (n=144)

Allowing the person to be absent 108 75 during working hours for rehabilitation, assessment or treatment

Altering the person’s working hours 77 53

Giving the person, or arranging for 65 45 him or her to be given, training

Acquiring or modifying equipment 65 45

Assigning the person to a different 51 35 place of work

Providing supervision 50 35

Transferring the person to fill an 46 32 existing vacancy

Adjustments to premises 38 26

Modifying procedures for testing or 37 26 assessment

Modifying instructions or reference 33 23 manuals

Providing a reader or interpreter 7 5

The interviewees were also asked if they had ever dismissed or retired early someone with a particular condition on the grounds of health and safety. A total of 50 organisations had done so involving 90 individual cases. The only conditions mentioned by 10 or more organisations were: mobility or dexterity difficulties (14 organisations) and musculoskeletal conditions (14) and mental illness (10).

The 50 organisations were asked whether any factors would have assisted in avoiding dismissal. The largest proportion (66%) said they did not know. Of the rest, the highest proportion (28%) cited help from the individual concerned as a factor that would have helped. Assistance from co­workers was mentioned by 22%, followed by help from managers (20%), and expert advice (18%). Only three organisations (6%) mentioned financial help.

Half the respondents said that “the management team” made the decision that the person was unfit for work. Where an individual was specified, the key person in making the decision was the occupational physician in nearly half (46%) of the cases and another doctor in 30% of cases. A considerably smaller proportion cited a personnel officer (28%) or the health and safety advisor (16%).

5.4 Health and safety concerns Respondents were asked a general question about whether they had any health and safety concerns regarding the employment of people with a disability, ill-health condition or injury. Just over one-third (35%) said that they did. The proportion indicating general concerns varied according to the sector as set out in Table 8.

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Table 8 Do you have general health and safety concern regarding the employment of people with disabilities, ill-health conditions or injuries?

Sector Yes, do have No, do not have Don’t No answer concerns (%) concerns (%) Know (%) (%)

Construction

Agriculture and forestry

Manufacturing

Public administration and defence

Transport and communication

Financial administration/real estate

Wholesale/retail/hotels/restaurants

Health, education etc

Mining and utilities

Total

56

44

42

40

35

34

32

30

25

35

41 4

44 11

53 4 1

60

65

64 1

64 4

67 4

69 6

61 3 1

The highest proportions expressing concern are in the construction, agriculture and manufacturing sectors.

All respondents were asked whether they had concerns relating to particular conditions and particular categories of work. The proportion expressing concern is shown in the table below.

49

Table 9 Proportion of respondents with concerns by type of condition and occupation

Type of condition Managerial/pro Technical Admin/ Manual fessional positions (%) clerical positions( positions (%) positions (%) %)

Impaired mobility or dexterity 16 23 9 52

Hearing impairment 18 14 14 20

Diabetes 4 4 3 7

Chest condition 5 9 4 32

Musculoskeletal disorder 10 16 12 55

Epilepsy 15 18 10 36

Other neurological conditions 23 24 18 44 (e.g. MS, Parkinson’s disease)

Sight impairment 21 29 24 48

Heart condition 17 15 11 40

Mental illness 46 36 35 41

Stomach or liver condition 9 9 8 20

HIV/AIDS 12 12 10 16

Skin condition 9 10 7 22

Learning disability 44 35 32 23

Dyslexia 26 22 28 10

Other 5 5 5 7

As shown in the table, for most conditions, higher proportions of respondents express concern in relation to employment in manual jobs. However, in respect of two conditions, mental illness and learning disability, a higher proportion express concerns relating to employment in managerial or professional positions.

When asked about whether they had any health and safety concerns about specific groups, the numbers who responded affirmatively were few. The highest proportion was 7% who expressed concern about people over 50 (33 respondents) and 6% (31 respondents) who expressed concern about people under 21. The proportion was 1% or less for particular ethnic groups.

5.5 Awareness of legislation Interviewees were asked about their awareness of key relevant legislation prior to the interview. Around one in five (21%) said that they were very aware of the Health and Safety at Work Act 1974, and 65% were fairly aware. Only one in 10 was not very aware, and 2% not at all aware.

A higher proportion (35%) said they were very aware of the DDA, and 54% were fairly aware. Only 9% were not very aware, and 2% were not at all aware. Similar proportions expressed an awareness of the duty the DDA places on employers to consider and, if necessary, make reasonable adjustments. Around one in three (36%) was very aware, 53% was fairly aware, and only 10% was not very aware, and 1% not at all aware.

Those respondents in organisations currently covered by the DDA – ie with 15 or more employees – 25% thought that there was a conflict between the operation of the DDA and

50

compliance with statutory health and safety regulations, compared with two-thirds who thought there was not.

Those organisations which had less than 15 employees were asked whether they thought there might be any conflict between the DDA and compliance with health and safety regulations if their organisation were brought within the scope of the DDA. The majority (69%) of the 154 organisations with under 15 employees said no, but one in five (21%) said yes.

5.6 Sources of advice Respondents were asked whether their organisation had ever sought advice, information or support about health and safety issues relating to the employment of people with disabilities, ill­health conditions or injuries. Nearly two out of five (39%) had used HSE publications, 26% had contacted HSE offices and 18% had used the HSE InfoLine. Nearly one in three said they had contacted a local authority inspector. One in five had sought advice from disability employment advisers at local job centres, and 15% advice from disability organisations. The DRC helpline had been used by 6% of respondents.

For every category of advice, a higher proportion of organisations with a disability policy than of those without a policy had sought assistance. For example, 27% of those with a disability policy had used HSE InfoLine compared with 11% of those without a policy. One in three organisations with a disability policy had consulted a DEA compared with only 10% of organisations without a policy.

6 CONCLUSIONS

The findings point to variations in policies between SMEs of different sizes and sectors. For example, larger organisations are more likely to conduct health screening, to have a safety specialist in charge of health an safety, and to use the services of an OH practitioners.

Just under half the organisations had a disability policy, but the proportion was considerably higher in the public than in the private sector. Only one-third of organisations said that they employed any disable people.

Fewer than one in five said that their organisation had overcome any health and safety difficulties associated with recruiting someone with a disability, ill-health condition or injury. This proportion rose to 34% of organisations that had overcome health and safety difficulties to retain an existing employee with a disability or ill-health condition.

Concerns about employing people with a disability or ill-health condition varied according to sector. The highest proportions were in construction, agriculture and manufacturing,

For most disabilities or conditions, higher proportions of respondents expressed concern in relation to employing someone in a manual job. However, in the case of mental illness and learning disabilities a higher proportion expressed concern about employing someone in a managerial or professional position rather than a manual one.

Of those respondents currently covered by the DDA, one in four thought there was a conflict between the operation of the DDA and compliance with health and safety regulations, compared with two-thirds who thought that there was not.

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1

CHAPTER 4 LARGE EMPLOYERS’ SURVEY

A postal questionnaire was sent to a sample of 2,000 large organisations across the UK with 250 or more employees. A sample of 1000 public sector organisations was obtained from the Business Database and a further sample of 1000 private sector organisations was obtained from TRP, another database company. The questionnaires were distributed in September 2002. Each questionnaire was accompanied by a letter explaining that it should be completed by a senior manager with overall responsibility for employment practices, and that in most organisations this would be the human resource/personnel manager. The employers’ schedule is in Appendix 2.

A total of 153 respondents (7.7%) completed the questionnaire. The reasons for the low response rate may be attributed to the length of the questionnaire and the time therefore involved in completion. In addition, the detail requested on recent cases required collection of information from a number of sources and may have deterred some respondents in large organisations. However, it should be stressed that the findings discussed represent the views of the sample of responding employers only.

Two sectors were disproportionately represented in the responses. Forty-nine respondents (32%) were from the health and education sector and 40 (26%) were from the manufacturing sector. The overrepresentation of the manufacturing sector may point to a particular concern with, or interest in, the health and safety issues raised in the questionnaire. Overall 52% of respondents were from the private sector, and 45% from the public sector, including 10% from the NHS. A further 2% were from the voluntary sector.

RECRUITMENT PROCEDURES

The majority of respondents (90%) said that they ask job applicants to state if they have a disability, ill-health condition or injury at the initial job application stage. Ninety-five respondents answered a similar question for those who used recruitment agencies (64% of the total group of respondents). Of those who answered this question, 43 (45%) said the recruitment agency asked applicants if they have a disability, ill-health condition or injury, and six (6%) said they did not. Forty-six respondents (48%) said they did not know what the recruitment agency’s policy was. Over two-thirds of respondents (68%) said that they asked a potential employee whether they had a disability or ill-health condition prior to making an offer of employment.

Over three-quarters (77%) reported that they operated health screening as part of the recruitment process. Of these 118 respondents, 79 (67%) screened all job applicants, compared with 36 (31%) that screened selected applicants only. One hundred and eleven respondents said that they used a questionnaire/health declaration for the screening (94%), and 60 conducted a medical examination (51%). In 27 organisations (23%), the vetting of the screening is primarily conducted by either the occupational health nurse, in 26 (22%) by the HR/personnel officer and in 22 (19%) by the occupational health physician.

Ninety-one respondents (59%) reported that there was an IOSH qualified person in charge of health and safety. Fifty-seven have an occupational health department (37%) and ninety-six respondents (63%) reported that their organisation purchases an occupational health service from an external provider. A total of 117 had access to the services of an occupational physician. Of those that used the services of an occupational health physician, just twenty-seven respondents could identify a formal OH qualification held by the physician. Respondents from 88 organisations reported that their organisation used the services of an OH nurse; of these, just 19 named a formal OH qualification held by the nurse. A further 33 organisations said that they use the services of a non-occupational health nurse.

52

The majority of employers (136, or 89%) said that they reviewed their health and safety risk assessments taking into account new employees. Only nine (6%) did not, and seven did not know. Nearly four out of five (79%) also said that their risk assessments included an assessment of the impact of disability, ill-health conditions and injuries. Risk assessments were reviewed by a health and safety practitioner or advisor in 32% of cases, the management team in 29% of cases and by a health and safety manager in 16% of cases.

Ninety-five percent of respondents said that their organisation reviewed health and safety risk assessments in respect of all employees. Only three organisations said that they did not review health and safety risk assessments when existing employees returned to work with a disability, ill-health condition or injury. Asked whether risk assessments had ever precluded the employment of people with particular disabilities or ill-health conditions, 23% (35 respondents) said they had. Some examples of these are given in box 1 below.

· ] a k

]( ).

· t ( ).

· g .

· / y ( .

Box 1: Examples of risk assessments precluding the employment of people with particular disabilities or ill-health conditions

The [person suffered severe road traffic accident resulting in musculoskeletal disability. They applied for work requiring significant patient handling, but the risassessment indicated significant risk to patients. The [person was re-deployed to another post NHS hospitalA person with an eye complaint [was precluded from] working in a stores departmenwhere they were driving forklift trucks NHS hospital[An employee with] epilepsy, it was unsafe [for them] to work with brush-cuttinequipment (local authority)In confined spaces, swift egress is not possible in the event of fire fumes if physicallimpaired in any way waste collection treatment)

2 DISABILITY POLICY

Nearly three-quarters of respondents (73%) said that they had a disability policy either as a stand-alone policy or as part of a diversity policy. Of those with a policy, 99 (65%) said that the policy took account both of disabled people and those with ill-health conditions or injuries. Fifty-seven of the 112 policies (51%) made a specific reference to health and safety issues.

The majority of respondents said that they did employ disabled people – 138 out of the 153 employers (90%). Only four said that they did not, and a further eleven did not know.

3 STAFF RECRUITMENT

Respondents were asked whether they had ever overcome any health and safety difficulties associated with recruiting someone with a disability or ill-health condition. Over half (59%) said that they had done, 24% said that they had not, and 16% did not know. Of the 90 organisations where steps had been taken to overcome health and safety difficulties, most (56%) reported that this had happened between one and five times in the last three years, while a third (30 respondents) did not know the frequency. In the majority of cases (77, equivalent to 86% of the ninety organisations reporting they had taken steps to overcome health and safety difficulties) it had been necessary to make adjustments. The frequencies with which the various types of adjustment made were reported by these 77 organisations are shown in table 1 below.

53

Table 1 Proportion of respondents making adjustments to overcome health and safety difficulties associated with recruiting an individual with a disability

Type of adjustment No of organisations Per cent of organisations (n=77) that had made that had made adjustments adjustments (base = 77)

Acquiring or modifying equipment 55 79

Allowing the person to be absent during working 45 58 hours for rehabilitation, assessment or treatment

Altering the person’s working hours 39 51

Giving the person, or arranging for him or her to 33 43 be given, training

Adjustments for purposes of access and egress 32 36

Assigning the person to a different place of work 31 40

Modifying the workplace e.g. adjusting 28 36 temperature, lighting etc.

Providing supervision 26 34

Allocating some of the employee’s duties to 26 34 another person

Transferring the person to fill an existing vacancy 20 26

Providing a reader or interpreter 19 25

Other adjustments to premises 19 25

Modifying procedures for testing or assessment 11 14

Modifying instructions or reference manuals 10 13

As shown in the table, the three types of adjustment most frequently cited are: acquiring or modifying equipment; allowing the person to be absent during working hours for rehabilitation, assessment or treatment; and altering the person’s working hours.

One in five respondents had decided not to offer a job to someone with a disability or ill-health condition on the grounds that their condition would present a risk in terms of health and safety. In the 31 organisations that had made such a decision, it had been taken by an occupational physician in twenty organisations (65% of those replying to this question), a personnel officer in twelve (39%), the management team in eight cases (26%), a health and safety advisor in eight (26%), and an OH nurse in six organisations (19%). In the majority of these cases the risk had been identified as being to the disabled person (27 cases, or 87% of responses), to other employees in eleven cases (36%), and to members of the public in eight cases (26%).

Only a small number of respondents stated that there were other concerns involved in the decision. Six said that a breach of health and safety law was involved, and the same number said there was fear of litigation from the person themselves if their condition deteriorated due to risk of injury. Three organisations were concerned about a breach of statutory requirement for the job and the same number had fears concerning the risk of litigation from third parties who might be harmed by employment of the disabled person. Two organisations were concerned about additional pension liabilities.

54

The respondents were then asked whether their organisation had ever not offered a job to someone with a particular condition on the grounds of health and safety. When prompted with a list of specific conditions, a slightly higher number (35 respondents compared with 31 to the general question) said that this had happened. The small number of responses by type of condition is shown below.

Table 2 Number of organisations not offering a job to someone with a particular condition

Type of condition Number of organisations not Percentage of organisations not offering a job (n=35) offering a job (base = 35)

Musculoskeletal conditions 13 37

Mobility or dexterity difficulties 10 29

Sight impairment 9 26

Heart condition 9 26

Epilepsy 9 26

Skin conditions 6 17

Mental illness 6 17

Hearing impairment 5 14

Chest conditions 4 11

Diabetes 4 11

Learning disabilities 0 0

Other neurological conditions 0 0

Dyslexia 0 0

HIV/AIDS 0 0

Stomach/liver conditions 0 0

Some examples given by respondents are shown below:

· Examples of organisations not offering a job to an applicant on the grounds of health and safety risks

· A shortlisted applicant confirmed he had recently had an epileptic episode. This was too recent for us to be confident to allow him to work with moving equipment or drive a forklift truck on a chemical process site (chemical company).

· An electrical engineer, who was required to operate multiple complex pieces of equipment which he was unable to see, as he had very poor vision. No modifications or equipment were possible to assist (alcohol production).

· We have had to turn down insulin dependent diabetics who have applied to drive mobile plant, due to requirements of the Road Traffic Act licensing health requirements (quarrying).

· People with HAVS or with sight in one eye are not employed to use a chainsaw. People with epilepsy are not used to climb masts on medical advice (tree maintenance).

· We cannot offer posts to anyone who has had neck or back injury which would put them at additional risk should they be involved in a physical incident with a student (school).

Only three of the respondents thought that anything more could have been done to allow recruitment of the individual concerned. But, prompted with a list that asked about specific

55

4

factors that could have helped, nineteen respondents indicated that perhaps some additional factors might have helped. Six thought that expert advice would have helped, four thought that the individual could have been more helpful, and three respondents said that more information about disability legislation, how to make adjustments, and financial help, would have been helpful. Two suggested that more help from colleagues might have helped.

STAFF RETENTION

The majority of respondents (88%) said that their organisation had experience of overcoming health and safety difficulties associated with existing employees’ disabilities, ill-health conditions or injuries. Of the 134 respondents who reported that this was the case, two-thirds said that this had happened between one and five times in the last three years and one in ten said that it had happened between six and ten times over the same period.

Adjustments had been necessary in the case of 84% of respondents. The types of adjustments made and the proportion of respondents making them are shown in the following table.

Table 3 Number of organisations making particular types of adjustments

Type of adjustment No of organisations Per cent of organisations (n = 112) that had made adjustments

(base = 112)

Altering the person’s working hours 86 64

Allowing the person to be absent during 80 60 working hours for rehabilitation, assessment or treatment

Acquiring or modifying equipment 78 58

Assigning the person to a different place of 56 42 work

Allocating some of the person’s duties to 56 42 another employee

Transferring the person to fill an existing 55 41 vacancy

Giving the person, or arranging for him or 38 28 her to be given, training

Other adjustments to premises 32 24

Adjustments for purposes of access and 31 23 egress

Help with transport 26 19

Providing supervision 20 15

Providing a reader or interpreter 16 12

Modifying instructions or reference 8 6 manuals

Modifying procedures for testing or 6 5 assessment

56

Altering the person’s hours of work, and allowing them to be absent during working hours for rehabilitation, assessment or treatment, were the two most frequently reported adjustments made.

Asked whether their organisation had ever dismissed someone with a disability or ill-health condition on the grounds that their condition would present a risk in terms of health and safety, a third of respondents (51 organisations) said that they had. In over three-quarters of these cases this decision had been made by an occupational physician (40 cases). In seventeen organisations (33%) the decision had been made by another doctor, and in 16 cases (31%) the decision was made by a personnel officer. In 50 of the organisations (98% of cases) the risk was considered to have been to the health and safety of the disabled person. Nineteen organisations identified a risk to other employees, and in fifteen there was believed to be a risk to members of the public.

The main other concern involved in the decision was fear of litigation from the person themselves if their condition deteriorated due to the risk, mentioned by twenty organisations (39%). Fourteen referred to concerns about a potential breach of health and safety law (28%), and nine to fear of litigation from third parties who might be harmed by the employment of the disabled person (18%).

Fifty respondents gave information on the nature of the particular condition involved in a dismissal. Their responses are shown in table 4 below.

Table 4 Number of organisations dismissing someone with a particular condition

Type of condition Number of organisations not Percentage of offering a job (n = 50) organisations not offering

a job (base = 50) Musculoskeletal conditions 28 56.0

Mobility or dexterity difficulties 19 38.0

Heart condition 16 32.0

Mental illness 14 28.0

Other neurological conditions 13 26.0

Chest conditions 8 16.0

Diabetes 6 12.0

Skin conditions 3 6.0

Epilepsy 3 6.0

Sight impairment 2 4.0

Hearing impairment 2 4.0

HIV/AIDS 2 4.0

Stomach/liver conditions 2 4.0

Learning disabilities 1 2.0

Dyslexia 1 2.0

Employers gave examples of cases in which they had had to dismiss someone due to their condition. A selection of these is shown below:

57

5

Examples of cases in which organisations had dismissed someone with a particular condition · An employee had MS which deteriorated. The employee was dismissed and re-employed on

consultancy basis when he was able to work. He declined work after six months (financial services).

· [One employee was a] diabetic with foot ulcers, the safety footwear was aggravating his condition and making him ill. We had tried various types of shoe and they had all failed to help (food production).

· A person recruited failed to disclose vibration white finger, level 3. The person was employed as a grinder using vibrating tools (steel casting manufacturing).

· After having a heart attack, the employee was unfit to resume his duties. He worked mainly outside and the doctor would not allow him to work in case the cold affected his heart. Our work inside was too heavy for him to undertake (mechanical equipment manufacturing).

· We dismissed a diabetic during his probationary period, who refused to properly medicate himself, which resulted in him having a violent temper and threatening people with violence (food grower and processor).

· A latex sensitivity for a nurse in theatre. So severe, that no redeployment was possible – an ill-health settlement was the outcome (NHS).

Once again, although only four respondents said that anything more could have been done to retain the individual, when prompted with a list of suggested factors, responses were gained from twelve people. The most cited factor that would have helped in retaining the individual was for that individual to have been more helpful. Five individuals gave this response. Three individuals also said that more information regarding how to make adjustments would have been helpful.

HEALTH AND SAFETY CONCERNS

Over a third of the respondents (39%) said that they had general health and safety concerns regarding the employment of people with a disability or ill-health condition.

All respondents were then asked about whether they had concerns relating to particular conditions and particular categories of work. The proportion expressing concern is shown in table 5 below.

58

Table 5 Proportion of respondents with health and safety concerns about employing people with different conditions in different occupations

Nature of condition Managerial/ Technical Admin/ Manual professional positions clerical positions positions Percentage positions Percentage Percentage (base = 153) Percentage (base = 153) (base = 153) (base = 153)

Impaired mobility or dexterity 16 38 14 93

11 25 9 61

Hearing impairment 11 21 14 41

7 14 9 27

Sight impairment 12 51 20 79

8 33 13 51

Diabetes 6 7 3 18

4 5 3 12

Chest condition 10 15 7 60

7 10 5 39

Musculoskeletal disorder 19 36 37 106

12 24 24 69

Epilepsy 18 29 13 58

12 19 9 38

Other neurological conditions 22 38 20 69 (e.g. MS, Parkinson’s disease)

14 25 13 45

Heart condition 27 23 12 66

18 15 8 43

Mental illness 67 61 45 58

44 40 29 38

Stomach or liver condition 10 12 10 20

7 8 7 13

HIV/AIDS 15 23 12 25

10 15 8 16

Skin condition 10 18 8 45

7 12 5 29

Learning disability 55 50 33 22

36 33 22 14

Dyslexia 31 37 34 13

20 24 22 9

59

When asked about specific groups, including people of different age groups and ethnic background, only a handful of respondents (between two and four) expressed any particular health and safety concerns.

6 IMPACT OF THE DDA 1995

Over a third of respondents thought that the DDA had had a major or moderate impact on their organisation in terms of recruitment and retention of people with disabilities, or ill-health conditions.

Thirty-four organisations thought that there was a conflict between the operation of the DDA 1995 and compliance with statutory health and safety duties. Some of their comments are shown below:

Respondents' views on conflicts between the DDA and health and safety law · In a manufacturing environment many hazards exist which could more seriously affect

disabled person. Adjustments cannot overcome all risks. – Manufacturer of electronics products

· It is specialist work, which requires fit and healthy people with no disabilities. – Building contractor

· With industrial illness/disease, it is not cost effective for an employer to employ a new starter who already suffers work-related health problems, either of a physical or a psychological nature. – Mining

· We need to make provisions under the DDA but also comply with the duty of care under the HSWA. This can cause a conflict, particularly in a highly physical work environment. Bed manufacturer

· The DDA is far too “woolly” or not specific enough – whereas Health and Safety has clearer direction. Putting the two together can be difficult. -Manufacturer

· There is clearly a conflict between the ‘duty of care’ a company has to its employees and the demands of the DDA - Manufacturer

· Reasonable adjustment can disadvantage other non-disabled employees and create service difficulties for managers who are charged with delivering services – Local Government Authority

· The individual may feel that they are capable of undertaking tasks, but in some cases the organisation has to err on the side of safety – especially with litigation surrounding duty of care – NHS Trust

7 SOURCES OF ADVICE

A high proportion of respondents (129 organisations, 96%) had sought advice about health and safety issues relating to the employment of people with disabilities, ill-health conditions or injuries.

The most widely cited sources were DEAs at a local Job Centre (mentioned by 51% of respondents), disability organisations (40%), HSE offices (37%), professional organisations (35%) and lawyers (33%). Just over a fifth had consulted the HSE InfoLine (23%) and employer organisations (21%). Sixteen per cent had contacted the DRC helpline.

8 CONCLUSIONS

The survey of large employers indicates that the majority of them do have access to occupational health practitioners either in-house or through the purchase of external services. These organizations were also likely to review their health and safety risk assessments in respect

60

of all employees. Around three-quarters have a disability policy and 90% employ disabled people.

It is therefore notable that high proportions of these employers had experiences of overcoming health and safety difficulties in order to employ someone with a disability or ill-health condition. Many examples were provided of adjustment to the workplace or working arrangements. The three most frequently cited concerned the modification of equipment, allowing the individual to be absent for rehabilitation, assessment or treatment, and altering the person’s working hours.

Around one in five respondents, however, had decided not to offer a job to someone with a disability or ill-health condition on the grounds that their condition posed a risk in terms of health and safety. An even higher proportion – one-third – had dismissed someone with a disability or ill-health condition on the ground that their condition presented a risk in terms of health and safety. In the majority of cases the risk was identified as being to the health and safety of the disabled person: 87% in recruitment cases, and 98% in retention cases.

It is not possible from the responses given to a questionnaire to assess whether these judgments were appropriate or whether some of them could be considered a ‘false excuse’. Only the detailed facts of each case could throw light on this. However, the large number of cases and the range of impairments cited, point to the need for clear guidance to employers on this issue. If one company finds it possible to employ a driver with epilepsy, while another does not on the grounds of health and safety risks, there is clearly a lack of consensus on the impact of specific impairments on ability to do the job.

61

1

CHAPTER 5 OCCUPATIONAL HEALTH PRACTITIONERS’ SURVEY

INTRODUCTION

The occupational health practitioners’ survey was sent to 524 occupational health (OH) practitioners (270 OH nurses and 254 occupational physicians). Sixty-seven responses were returned – a response rate of 13%. Almost half of the respondents were from the private sector (46%), 31% were from the public sector (excluding NHS) and 21% worked in the NHS. Of the private sector respondents, half (52%) were part of an international group of companies, 19% were part of a UK group and 26% were independent firms. The schedule for the survey is found in Appendix 3.

The respondents represent a range of industrial sectors, including: manufacturing (30%); health, social work and education (27%); public administration (21%); and transport and communications (8%). Only one response was received from the retail/hospitality sector (see figure 1). There was also a good geographical spread: 21 respondents represented employers with multiple sites; where locations were given, these were mainly in England (56 respondents), with seven from Scotland and two from Northern Ireland. The majority of respondents (84%) represented large firms (≥500 employees).

Figure 1 Respondents by industrial sector

lth

l MiAgric

Manuf HeaPublic Transport Financia

ning

Retail Construct No reply

2 OCCUPATIONAL HEALTH PROVISION

There was a high level of OH provision among respondents, reflecting the dominance of large organisations in the data set. Three quarters of respondents (75%) were part of an in-house OH service, 84% held a formal OH qualification, and over three-quarters (76%) were part of a team of OH practitioners within the organisation. Indeed, one-third of respondents work in an OH service staffed by at least five OH nurses, and three-quarters (77%) have at least one occupational physician. Just over half (57%) of respondents report to the human resources (HR) manager.

3 PRE-EMPLOYMENT SCREENING

The survey asked several questions about whether or not employers asked prospective employees about any disabilities, injuries or ill-health conditions, or used pre-employment

62

health questionnaires and, if they did so, at what stage during the recruitment process these were used.

Almost three-quarters of respondents (73%) said that they asked prospective employees at the initial job application stage if they had a disability, ill-health condition or injury. Of these 49 respondents, 69% (34 respondents) said they did so to ensure that candidates had full access, 57% (28 respondents) said they used the information to make any necessary arrangements for the job interview, and 35% (17 respondents) did so to ensure people with disabilities were identified prior to shortlisting. Of respondents who did not gather this information at the initial job application stage, 67% (8 respondents) did so when making a formal job offer. If job applicants disclosed a disability or ill-health condition, eight out of ten (79%) of OH professionals said that their advice would be sought, usually at the “job offer” stage.

The use of pre-employment health screening was common among respondents: 91% used pre­employment health questionnaires (57% for all job applicants, 38% when a job offer was made, and 5% for selected applicants only) and 81% said their organisation conducted fitness-for-work, pre-employment medicals. Of the 54 respondents who conducted pre-employment medicals, 22 (41%) said medicals were given to all potential employees, 23 (42%) said only applicants identified as having an ill-health condition prior to job offer were given medicals, while 19 respondents (35%) said only applicants for certain jobs were given medicals. These included jobs in the emergency services, safety critical posts or those involving extensive travel or work with children, working offshore, fork-lift truck drivers, food handlers, animal handlers, and other job-specific health surveillance.

Asked about the confidentiality of pre-employment health questionnaires, 81% of respondents said the questionnaires were returned to the OH department (9.0% went to HR). The majority of respondents (84%) said that the questionnaire was treated confidentially and seen only by OH staff, although 8% said part of the information was made available for the selection process. In all but a handful of cases, the OH department was involved in assessing whether or not an applicant was fit for a job: two respondents said that line managers made the decision and 13 said that managers or HR made the decision on the advice of an OH professional.

4 MANAGING HEALTH, SAFETY AND DISABILITY

The majority of respondents (90%) worked for organisations with a health and safety manager and three-quarters of these (73%) were qualified health and safety practitioners.

OH professionals in the survey were not primarily responsible for conducting risk assessments: in 39 organisations (58%) risk assessments were done by a health and safety manager; and in 26 organisations (39%) by someone else, most often departmental or line managers. Most resp­ondents said that risk assessments were reviewed taking into account all new employees (61%), new employees with disabilities or ill-health conditions (52%), and existing employees who develop (or return to work with) disabilities, ill-health conditions or injuries (66%).

Most organisations (66%) surveyed had a disability policy, either stand-alone or as part of a diversity policy, 19% had no disability policy, and 15% did not respond/did not know. Three­quarters (75%) of these disability policies include both workers with disabilities and those with ill-health conditions and injuries. Sixty-one percent of the policies make reference to health and safety at work.

5 MAKING ADJUSTMENTS

Using the Disability Discrimination Act’s definition of disability, respondents were asked whether or not their organisation employed any disabled people, and if so, whether or

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not they had overcome health and safety problems in order to recruit or retain staff with a disability, ill-health condition or injury. Sixty-four respondents (96%) said their organisations employed disabled people. Of this group, 72% said they had overcome a health and safety problem to recruit a sick or disabled employee, while 91% had done so to retain a sick or disabled member of staff. In almost all these cases, respondents said that adjustments had been necessary. Employers used a range of adjustments (see table 1), the most commonly cited being a flexible approach to working time (altering working hours and allowing time off for treatment and rehabilitation) and the use of specific workplace equipment.

Table 1 Adjustments employers make to overcome health and safety difficulties associated with recruiting and retaining sick or disabled workers

Adjustment No. of employers

Altering working hours 59

Allowing time off for treatment/rehab 57

Workplace equipment 51

Reallocating duties 46

Assignment to different place of work 40

Workplace modifications (eg heat, light) 40

Training 38

Transfer to existing vacancy 35

For access/egress, eg ramps 34

Help with transport 34

Other adjustments to premises 28

Supervision 33

Providing readers/interpreters 22

Modifying instructions 12

Modifying testing procedures 8

Almost half of respondents (46%) say their organisation had decided at some point not to offer a job to a sick or disabled worker on ‘health and safety grounds’, although they said this happened infrequently. Only five of the 31 employers who had taken such a decision had done so more than twice in the past three years, and in two out of three cases, decisions not to employ were made by an OH nurse, physician or another doctor.

Respondents said the health and safety concern was usually for the disabled person themselves, rather than other employees or the public. Respondents said that several legal concerns played a part in such decisions, namely breaches of health and safety law; breach of statutory requirements for the job; and fear of litigation, either by the disabled worker or third parties. None of the respondents said that financial concerns such as payment of ill-health benefits, additional pension liabilities or potential inflation of insurance premiums if the risk transpired) had affected their decision not to employ a disabled person.

Musculoskeletal disorders and mental illness were the most common conditions cited as the reason for not employing someone on health and safety grounds (see table 2 below).

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6

Table 2 Conditions cited by employers as grounds for not employing

Condition No. of employers Musculoskeletal disorders 16

Mental illness 16

Mobility/dexterity 10

Skin conditions 9

Chest conditions 7

Epilepsy 5

Diabetes 5

Hearing impairment 4

Sight impairment 4

Other neurological conditions 4

Heart condition 2

HIV/AIDS 2

Dyslexia 2

Stomach/liver conditions 1

Learning disabilities 1

Only two respondents felt that more could have been done to allow recruitment of people not employed on health and safety grounds, although more respondents felt that access to expert advice (9%) and information on adjustments (8%) would help recruitment in these cases. Only 5% of respondents felt they needed more information about disability legislation, and few identified lack of help from managers (5%), co-workers (6%), job applicants (6%), or financial assistance (6%) as barriers to employing sick or disabled workers in cases where health and safety was perceived to be an issue.

DISMISSAL

Almost half of respondents (48%) said that their organisation had dismissed someone with a disability, ill-health condition or injury on health and safety grounds (see table 3). Of these 32 respondents, 16 reported dismissal of between one and four employees in the past three years, and five reported dismissal of between five and 10 staff. A doctor or nurse was involved in almost all these decisions: 91% of respondents said that an occupational physician decided the employee was unfit; 25% said another doctor had made the decision; and 13% said an OH nurse was responsible. In most cases (88%), the sick or disabled worker was judged to be at risk.

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Table 3 Conditions cited by employers as grounds for dismissing

Condition No. employers Musculoskeletal disorders 21

Mental illness 18

Mobility/dexterity 15

Skin conditions 3

Chest conditions 5

Epilepsy 6

Diabetes 4

Hearing impairment 5

Sight impairment 2

Other neurological conditions 15

Heart condition 8

HIV/AIDS 1

Dyslexia 2

Stomach/liver conditions 2

Learning disabilities 1

As was the case with decisions for not employing someone with a disability, respondents said that several legal concerns played a part in such decisions, namely breaches of health and safety law; breach of statutory requirements for the job; and fear of litigation, either by the disabled worker or third parties. Unlike recruitment decisions, however, some respondents were concerned about payment of ill-health benefits (5%) and pension liabilities (3.0%) where existing employees were concerned. Musculoskeletal disorders and mental illness were most frequently cited as reasons for dismissal on health and safety grounds (see table 2). Nine percent of respondents felt more could have been done to retain the worker.

7 HEALTH AND SAFETY – A “FALSE EXCUSE”?

Over one third of respondents (39%, 26 respondents) felt that health and safety had justifiably been used by a manager within their organisation not to employ someone with a disability or ill­health condition, while 16% (11 respondents) felt that it had been used as a “false excuse”. While there were no marked differences between industrial sector, a smaller proportion of respondents from the public sector (10%) compared with the private sector (16%) said they thought health and safety had been used as a “false excuse”.

8 EXAMPLES OF EFFORTS TO RECRUIT OR RETAIN INDIVIDUALS

Respondents were asked to cite examples in their organisations of exceptional efforts being made to recruit or retain individuals with long-term illnesses or disabilities. The following gave examples that, in their view, related to health and safety issues:

· An OH nurse at a chemical plant in the North-west reports significant efforts made to retain an employee with multiple sclerosis. After assessing the employee’s capabilities, adjustments included installation of ramps, a shorter working week and providing a taxi to and from work.

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· An OH nurse at a large engineering firm in the South-west reports installing a wheel-chair lift and disabled lavatory, and making changes to work practices and assigning a “buddy” to retain a diabetic bilateral amputee.

· An agricultural firm in East Anglia retained an employee who developed a mental illness. As well as providing on-going support, the OH adviser says the employee’s post is now part-funded by a local charitable trust.

· When a storeman at a Scottish distillery lost his sight, the premises was modified, he was retrained as a receptionist/telephonist and the employer provided a reader until he was confident enough to work alone.

· A large, national public-sector employer retained an epileptic forklift truck driver. His forklift was flown back to its manufacturers in Europe to be modified, the workplace and work practices were redesigned, and the worker and his colleagues retrained.

· A large media sector employer in Northern England reports providing assistance in and out of vehicles, in and out of the office, and with toilet needs, for an employee with a congenital lower-limb deformity. The firm also used workplace equipment, including a specialist chair, keyboard and voice-activated software, to retain a worker with arthritis.

· A laboratory worker in a university in the North-west developed visual problems and mental health problems after suffering a brain haemorrhage. He returned to work in a clerical role, on a recuperative programme, supported initially by a co-worker. The OH physician concerned reported working closely with the DAS.

· The OH department of an NHS trust in North-west England reports successfully redeploying a nurse with severe hearing impairment. She spent several weeks working in each of five different departments that she had displayed an interest in until the most appropriate redeployment was found.

· What is notable about these examples is that several of them do not relate to specific health and safety issues, although the respondents clearly thought that they did. The example of the forklift driver, for example, does have health and safety implications, but some of the other examples illustrate adjustments made to the workplace to accommodate an individual with a disability or ill-health condition. These responses point to a lack of clarity on the part of some employers as to what constitutes a health and safety risk.

HEALTH AND SAFETY CONCERNS

A significant proportion (34%) of respondents said that they had general health and safety concerns regarding employment of people with disabilities, ill-health conditions or injuries. The extent of these concerns depends on both the type of disability/condition and the type of job concerned (see figure 2).

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* Due to a printing error, sight impairment was excluded from the list for this question. All 67 respondents were contacted and 42 provided responses to the question.

Higher levels of concern were expressed about employing someone with a mental illness or learning disability in a managerial/professional rather than a manual position. The level of

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concern about HIV/AIDS was low across all grades (ranging from 6% of respondents being concerned about employing someone with HIV/AIDS in a clerical post to 12% in a manual job).

Compared with managerial positions, much higher levels of concern were expressed about employing someone in a manual job who had impaired mobility or dexterity (9% managerial/professional vs 72% manual), a musculoskeletal disorder (18% vs 75%), a hearing impairment (8% vs 39%), a sight impairment (12% vs 62%) a chest condition (8% vs 52%), a heart condition (16% vs 57%), a skin condition (5% vs 48%), epilepsy (24% vs 69%), other neurological condition (24% vs 69%), a stomach or liver condition (13% vs 24%) and diabetes (5% vs 21%).

For technical posts, concerns centred on impaired mobility (40% of respondents were concerned), musculoskeletal disorders (45%), learning disability (51%) and sight impairment (55%). In clerical positions the main concern was about employing someone with a musculoskeletal disorder (46% of respondents expressed concern).

Only a minority of respondents expressed any health and safety concerns over employing people with disabilities or ill-health conditions. There were no differences in the level of concern expressed about male versus female employees, but respondents were more concerned about young (aged ≤21 years) and older (aged ≥ 50 years) workers – 15% of respondents said they had health and safety concerns about young workers with disabilities or ill-health conditions, and the same proportion said they had similar concerns about older workers.

More than one-quarter (28%) of respondents were concerned about the health and safety of disabled people whose first language is not English. Asked to expand on any of these concerns, respondents most often cited concerns about communicating health and safety instructions to non-native English-speakers, and that this group would not find it easy to raise health and safety concerns. One respondent (from a higher education institution) said they were concerned about hepatitis B prevalence in ethnic minorities’ countries of origin.

10 STATUTORY OBLIGATIONS

The majority of OH respondents (54%) feel that the DDA has had a major or moderate impact on recruitment; 33% feel it has had a minor impact and 12% no impact. Compared with recruitment, a larger majority feel (63%) the Act has had a major or moderate impact on retention of disabled employees. Asked what the DDA’s impact on their own role in recruitment and retention of sick or disabled staff, 61% say it has had a major or moderate impact.

More than two-thirds of respondents (70%) feel that there is no conflict between the DDA and compliance with health and safety legislation. However, a quarter (27%) say that there is a conflict between the DDA and statutory health and safety duties (see below).

· “Managers are concerned that it would be easier to breach health and safety law if certain individuals are employed. It adds pressure, increases risk assessment performance and opens up areas of concern” – Emergency service.

Respondents’ views on conflicts between the DDA and health and safety law

· “Some cases require significant input to create a safe environment. Sometimes resources are not always available in an NHS environment” – NHS trust.

· “Particularly in the care of vulnerable groups (patients, children etc) and mental health problems it can be very complex to arrive at a fair and safe decision” – NHS trust.

· “In the medical and allied professions and in teaching the care/safety of the patient/pupil must take priority. This leads to very difficult situations in meeting the needs of the DDA” – Higher education.

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· “We have always been able to reach a suitable arrangement, and in critical cases, the health and safety duties take precedence” – Gas exploration.

· “Health and safety issues take precedence over those of discrimination. We need to be able to justify (if necessary to a tribunal) any decision and ensure that everything possible has been done” – Higher education.

· “It is a balance between ensuring the health and safety of the individual and others while attempting to integrate a disabled person. I have found difficulties with co-workers accepting disabled workers” – Car manufacturing.

· “We are keen to employ the right person regardless of any disabilities or health conditions and support them by adjustment, but the conflict is [that] health and safety legislation is becoming impossible to interpret in relation to employment legislation” – Publishing (multinational).

· “I often feel that there are occasions when the best interests of the employee (patient) and of a benevolent company like ours are overridden by the requirements of the DDA. Sometimes people apply for jobs which would have a negative impact on their health (or a company wants to transfer someone to a new post with negative impact) and it is difficult under the DDA to give good doctor’s advice because of this word ‘discriminate’” – Construction.

· “In my opinion, the DDA is too vague, and it can be used as an excuse for poor behaviour, but my employer is committed to employing and sustaining employment for people with disabilities so it is part of wider equal opportunities/diversity issues” – Local government.

11 OBTAINING HELP AND ADVICE

Asked about sources of advice, information and support about health and safety issues connected with employing people with disabilities or ill-health conditions, the most commonly cited were disability employment advisers at local Job Centres (69%), professional organisations (55%) and disability organisations (51%). Almost half (44.8%) of respondents said they used Health and Safety Executive offices, 27% used HSE InfoLine, but only 13% used the Disability Rights Commission helpline (see figure 3).

Figure 3 Sources of advice

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12 CONCLUSIONS

Nearly three-quarters of occupational health practitioners said that they had overcome a health and safety problem to recruit a sick or disabled employee, while nine out of 10 had done so to retain a sick or disabled employee.

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Nearly half the respondents had experience of their organisation deciding not to offer a job to a sick or disabled person on health and safety grounds. The health and safety concerns were usually for the disabled person themselves, rather than other employees or the public. Almost half the respondents said that their organisation had dismissed someone with a disability, ill­health condition or injury on health and safety grounds. In nearly nine out of 10 cases the sick or disabled worker was judged to be at risk.

One-third of respondents expressed health and safety concerns regarding the employment of people with disabilities or ill-health conditions. But, as with other groups surveyed, the extent of these concerns depended on the type of disability/condition and the type of position. .

Asked directly whether they thought health and safety had ever been used by a manager as a “false excuse”, 16% thought that this had happened.

The majority of respondents did not perceive a conflict between the DDA and compliance with health and safety legislation. But just over a quarter from a wide range of organisations did consider that there was a conflict.

Several respondents gave examples of exceptional efforts being made in their organisations to recruit or retain individuals with long-term illnesses or disabilities. However, the majority of these examples did not relate to overcoming specific health and safety difficulties, but rather to making reasonable adjustments to accommodate particular individuals.

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1

CHAPTER 6 HEALTH AND SAFETY PRACTITIONERS’ SURVEY

INTRODUCTION

The postal survey of health and safety practitioners across the UK was conducted in June 2002. A survey questionnaire was sent to 602 health and safety practitioners on an IRS database. Because of the nature of the questions and subject area being explored, respondents were assured of the confidentiality of all replies. Eighty-five completed questionnaires were returned, giving a response rate of 14%. Table 1. shows the distribution of responses across sectors of the economy. The schedule is in Appendix 4.

Table 1 Distribution of responses across the economy

Sector Number of Per cent (n=85) organisations responding (n = 85)

Mining and utilities 3 4

Construction 6 7

Manufacturing 24 28

Transport and communication 9 11

Wholesale/Retail trade and repairs, hotels and restaurants 4 5

Financial administration, real estate, etc 10 12

Health and social work, education etc 24 28

Public Administration 5 6

Sector unspecified 1 1

Private sector 52 61

Public sector 23 27

NHS 9 11

* n = the total number of respondents

Of the fifty-two private sector organisations, just over a quarter (27%, 23 organisations) were part of an international group of companies. A further 18 companies (21%) were independent. Eleven (13%) were part of a UK group of companies. The responding organisations were distributed across the UK and included several who indicated that they operated nationally or internationally (Table 2.)

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Table 2 Location of responding organisations

Region Number of organisations responding Per cent North East 3 4

North West 7 8

Yorkshire and the Humber 14 17

East Midlands 7 8

West Midlands 9 11

South West 5 6

East of England 4 5

London 11 13

South East 7 8

Scotland 9 11

Wales 4 5

Ireland 1 1

UK wide/multisite 27 32

Headquarters outside UK 3 4

The majority of respondents were based in medium-sized and large organisations. Sixty-one percent were employed in organisations having 500 or more employees and 13% were in organisations of between 250 and 499 employees. Replies from the majority of respondents applied to the whole organisation (64, or 75%) while just 17 (20%) related to part of the organisation only. The majority of responding health and safety practitioners was employed directly; only two provided health and safety services under contract to organisations.

Respondents were asked if their organisation had any formal arrangements for consultation and participation of employees on health and safety matters. Three quarters (64 organisations) reported having safety representatives who were appointed under the Safety Representatives and Safety Committees Regulations, 1977, and the same number reported having a safety committee appointed under the same legislation. Nearly half (38 organisations) consulted directly with employees under the Health and Safety (Consultation with Employees) Regulations, 1996. A quarter (22 organisations, 26%) had a Works Council through which employees could be consulted.

2 THE RECRUITMENT PROCESS

2.1 Involvement of health and safety practitioners in recruitment Health and safety practitioners were asked if they were involved in the staff recruitment process. Only around a third – 31 respondents, or 37% – were involved in recruitment. Of these, five (16%) reported having an advisory role, while four (13%) were involved in assessing an individual’s requirements. Analysis of respondent’s job titles and background indicated that it was mainly those practitioners with a background in health (typically, occupational health) who were involved in recruitment.

Twenty-four practitioners had a background in health, and of these, two-thirds reported some involvement in recruitment (primarily in pre-employment health screening). For those who

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came from a health and safety background, and whose jobs had a more mainstream health and safety focus, the vast majority, 40 out of 53, reported that they had no involvement in recruitment. Of the 13 practitioners who reported some involvement in recruitment, six of them said this was restricted to recruitment to their own department. These two profiles indicate that most practitioners with a health and safety background are unlikely to be involved in recruitment, whereas occupational health practitioners are more likely to be involved than not9.

2.2 Screening for disability and ill-health at recruitment The majority of organisations (78%) asked applicants to indicate when applying for a job whether they had any disability, ill-health condition or injury. Just 12% (10 respondents) indicated they did not ask job applicants for this information.

A smaller proportion of respondents was sure of the situation with regard to applicants recruited via recruitment agencies. While just over a quarter (27%) said that recruitment agencies asked applicants about the existence of disability, injury or ill-health conditions, almost a third of respondents did not know (35%) and a further quarter did not reply.

Almost as many companies asked potential employees about the existence of any disability, injury or ill-health condition prior to making them an offer of employment. Seventy-one respondents (84%) also reported that their organisation typically used health screening as part of the recruitment process, with the majority – 51, or nearly 72% – indicating that this was a requirement for all job applicants. Over a quarter of respondents (27%) indicated that selected applicants were screened.

Where health screening was in operation, the most frequent means by which the health of job applicants was screened was by questionnaire or health declaration (61 companies, or 86% of all respondents). Ten (14%) of the companies that screened at this stage used medical examination, and 26 companies (37%) were reported to use both questionnaire and examination. Where a questionnaire or declaration is used in the screening process, responsibility for vetting the completed form is most likely to reside with an occupational physician (32 organisations, 45% of responses). In a fifth of organisations the occupational health nurse undertook this responsibility, and in 12 organisations (17%) an HR or personnel officer was likely to have this responsibility.

3 MANAGING HEALTH AND SAFETY

3.1 Who takes responsibility for health and safety in organisations? In almost half of organisations (48%) the person charged with managing health and safety was a health and safety manager similar title such as head of health and safety. In a fifth of organisations, responsibility for health and safety was vested in individuals whose roles were less senior: health and safety advisors, health and safety officers, etc. Irrespective of level within the organisational hierarchy, however, they were likely to be a member of IOSH: almost two­thirds (66%) of respondents reported that the person with health and safety responsibilities was a member of IOSH.

3.2 Occupational health provision Over half of health and safety practitioners (47, or 55%) indicated that their organisation had an occupational health department. Thirty-eight organisations (45%) reported that they bought in occupational health provision. Eleven of these also had internal OH provision. Twenty-three

9 Note: five individuals’ job titles indicated that, although they had responsibility for health and safety issues within the organisation, they were not drawn from either an occupational health nor a health and safety background. Those individuals were therefore excluded from these calculations.

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organisations that did not have internal OH services bought-in external OH provision. Eight organisations had no OH provision at all, and seven either did not reply or did not know the answer to this question.

Over three-quarters of organisations had access to an OH physician (67 organisations, 79%). Almost half of responding organisations (38, 45%) also had access to other doctors. Fifty-nine organisations (69%) had access to the services of an OH nurse. Typically, those organisations that had access to the services of an OH physician also had access to the services of an OH nurse – fifty six organisations, or 66% of the sample, reported having access to both. Eleven that had access to an OH physician did not have access to an OH nurse, while just three (3.5%) had access to the services of an OH nurse but not physician. Fourteen organisations (16.5%) had no OH provision. A fifth of respondents reported that their organisations had access to the services of other, non-OH nurses.

3.3 Health and safety risk assessments In conducting risk assessments, the majority of organisations included an assessment of the impact of disabilities, injuries and ill-health conditions (69 organisations, or 81%). When new employees were taken on then the majority of organisations would review their health and safety risk assessments to take into account new employees (73, or 86% of responding organisations).

Reviews of risk assessments are carried out by the management team (39% of respondents), a health and safety advisor or practitioner (34%) or the health and safety manager (31%). In some cases, respondents reported that various grades of staff (e.g. Health and Safety Officers and the Head of Health and Safety) would have responsibility for this role. In most cases though, overall managerial responsibility for the risk assessments resided with the management team (59% of cases) while in a fifth of organisations (21%) the health and safety manager would have this responsibility.

All but two organisations reviewed their health and safety risk assessments taking all employees into account (98%). A high proportion (64 organisations, or 75%) would review health and safety risk assessments when employees who had developed a disability, injury or ill-health condition returned to work.

In just over a quarter of organisations (29%), these risk assessments had led to the decisions not to offer jobs to people with disabilities, ill health conditions or injuries, or that it was not possible for an employee to continue working in a particular role. For example:

A young woman with controlled epilepsy working as a pool lifeguard started having daytime fits which precluded continued employment in that role – Local Authority

Other examples were provided of generalised risk assessments that had led to the decision that it was not possible for individuals with particular impairments to be employed in certain roles:

· Blind people are not allowed to work in the Delivery Suite. People with Severe Respiratory Condition would not be allowed to work with chemicals known to be respiratory sensitisors - this would be determined pre-employment – Healthcare Trust

· Severe acne [precludes employment] in food manufacturing, epilepsy in drivers, severe asthma in food manufacturing [due to the] dust - Food Manufacturer and Retailer

· Carpal Tunnel syndrome [means they cannot undertake] repetitive, machine-paced tasks -Food Processing Company

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3.4 Disability Policies Nearly three-quarters of organisations (63 respondents, or 74%) had a disability policy, either as part of a more general diversity policy or as a stand-alone disability policy. The majority of these policies (55, or 87% of those organisations that had a disability policy) took account of people with ill-health conditions or injuries as well as people with disabilities. Fifty-nine per cent of these policies (37 respondents) made reference to health and safety.

4 STAFF RECRUITMENT

4.1 The employment of people with disabilities While the majority of health and safety practitioners (80 respondents, or 94%) reported that their organisation employed people with disabilities, fewer (40 respondents, or 47%) knew how many disabled people were employed by their organisation.

Of the 85 respondents, 79 of the health and safety practitioners were able to provide information on the numbers of employees employed by their organisation. The majority of practitioners(34) were employed in organisations with between 500 and 4999 employees. A further eleven were employed in organisations with a workforce totalling between 250 and 499, and ten responded from organisations employing in excess of 10,000 individuals.

Practitioners were asked how many employees with disabilities there were within their organisation. Many respondents reported that they did not know how many employees with disabilities were employed, and several commented that this information was not collated across the organisation. Just 35 respondents provided estimates of number of employees with disabilities, and as would be expected, the number of employees with disabilities increased with size of workforce.

Sixteen of the respondents from organisations employing between 500 and 10,000 employees (38%) were able to provide a figure for the number of employees who had disabilities. Eight respondents from organisations with fewer than 5000 employees indicated that fewer than ten of their employees had a disability (between 2% and .2% of the workforce). A further six respondents from organisations of this size reported that their organisation employed between eleven and 100 employees with disabilities (between 2.2% and 1% of their workforce). In organisations having 10,000 and above in their workforce, one respondent thought there were ten employees with disabilities, while others gave estimates from between 11-50 to over 500.

Health and safety practitioners were asked if their organisation had ever decided that they could not offer a job to an applicant because of concerns that their disability, injury or ill-health would present a risk in terms of health and safety. Twenty-nine respondents indicated that they did not know if this had ever happened (34%), but 18 (21% of the whole respondent group and 33% of those who could answer this question) indicated that this had happened within their organisation at some point in the past. Asked how many times this had happened in the past three years, four respondents indicated that this had happened just once, two reported it had happened twice, the same number reported it had happened five times, and one respondent reported it had happened three times in their organisation. One respondent indicated that there had been fifteen occasions on which fears about health and safety in connection with the potential recruit’s condition had led to a decision to not offer a job to an applicant.

Where these decisions regarding health and safety risks relating to certain conditions had been made, they were most often made by occupational physicians (9 cases) and/or the management team (7 cases). Other individuals likely to be involved in such a decision were a health and safety advisor (5 cases), a personnel officer (4) or an occupational health nurse (4).

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Typically, the main concerns were for the risk to the person with the disability or ill-health condition themselves, (in 17 cases) but the safety of other employees and the public were also a concern (10 and 9 cases, respectively). In addition to concerns for the potential risk to individuals and the public, employers were also worried about the situation constituting a potential breach of health and safety law (7 cases), concerns about breaching the statutory requirements for the job (6 organisations) fear of litigation from the potential employee should their condition deteriorate whilst in employment (5 organisations). Table 3 shows the conditions that had led organisations to not offer a job to someone because of fears that their condition posed a risk in terms of health and safety:

Table 3 Conditions leading to decision not to offer applicant a job on grounds of health and safety concerns

Number of respondents Per cent of all Per cent of respondents replying to question respondents answering question (n= 15) (Base = 85) (Base = 15)

Musculoskeletal conditions 14 17 93 (e.g. back/neck/wrist pain)

Epilepsy 11 13 73

Heart condition 9 11 60

Mental illness 9 11 60

Mobility or dexterity 8 9 53

Sight impairment 8 9 53

Skin conditions 8 9 53

Hearing impairment 5 6 33

Diabetes 5 6 33

Chest conditions 5 6 33

HIV/AIDS 3 4 20

Stomach/liver conditions 2 2 13

Dyslexia 2 2 13

Other neurological 1 1 7 conditions

Learning disabilities 1 1 7

In only four of these cases did respondents feel that more could have been done in order to facilitate recruitment of the individual concerned. However, 11 respondents identified factors that might have helped with recruiting the individual(s) concerned (see Table 4 below):

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Table 4 Factors that might have helped organisations recruit individuals with disabilities

Number of organisations Per cent of all respondents (n=11) (Base=85)

Help from managers 5 6

Expert advice 3 4

Financial help 3 4

More information about 3 4 disability legislation

More information about how 3 4 adjustments could be made

Help from co-workers 2 2

Help from the individual 1 1 concerned

4.2 Overcoming barriers to the recruitment of people with disabilities Respondents were asked if their organisation had ever overcome any difficulties in order to be able to recruit an individual with a disability, injury or ill-health condition. A majority of organisations (61, 72%) reported that they had done so. Most organisations that had been involved in making adjustments to facilitate the employment of individuals with disabilities had made several different types of adjustment. Responses are shown in Table 5:

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Table 5 Types of adjustment made by employers to facilitate the recruitment of people with disabilities

Number of Per cent of organisations Per cent of all organisations who had made organisations (n=85)

adjustments (n=61) Acquiring or modifying 46 75 54 equipment or workstation

Allowing the person to be 43 69 51 absent from work for rehabilitation, assessment or treatment

Altering the person’s working 36 59 42 hours

Adjustments for purposes of 32 53 38 access and egress (e.g. ramping)

Modifying the workplace e.g. 29 48 34 adjusting lighting, humidity etc

Help with transport 27 44 32

Assigning the person to a 26 43 31 different place of work

Providing training for the 26 43 31 person

Allocating some of their duties 25 41 29 to another person

Other adjustments to premises 22 36 26

Transferring the person to fill 20 33 24 an existing vacancy

Providing supervision 20 33 24

Modifying procedures for 11 18.0 21 testing and assessment

Providing a reader or 11 18.0 21 interpreter

Modifying instructions or 6 10 7 reference manuals

Other 3 5 4

5 STAFF RETENTION

5.1 Retention of staff with disabilities Respondents were also asked if their organisation had ever made any adjustments to overcome health and safety difficulties to retain an employee who had developed an ill-health condition, injury or disability. Slightly more organisations (71 respondents, 84%) had done this than reported making adjustments in order to recruit new employees (72%). In particular, more

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organisations reported that they had allowed the individual to be absent during work time for rehabilitation, assessment or treatment, had modified the workplace, acquired equipment or provided supervision than had been the case for those recruiting people with disabilities.

Table 6 Types of adjustment made by employers to facilitate the retention of staff with disabilities

Number of Per cent of organisations Per cent of all organisations who had made adjustments organisations

(n=71) (n=85) Allowing the person to be 53 75 62 absent from work for rehabilitation, assessment or treatment

Acquiring or modifying 50 70 59 equipment or workstation

Altering the person’s working 50 70 59 hours

Assigning the person to a 45 63 54 different place of work

Allocating some of their duties 38 54 45 to another person

Modifying the workplace e.g. 37 52 44 adjusting lighting, humidity etc

Transferring the person to fill an 36 51 42 existing vacancy

Providing training for the person 35 49 41

Adjustments for purposes of 31 44 37 access and egress (e.g. ramping)

Other adjustments to premises 26 37 31

Help with transport 25 35 29

Providing supervision 25 35 29

Modifying procedures for 10 14 12 testing and assessment

Providing a reader or interpreter 10 14 12

Modifying instructions or 6 9 7 reference manuals

Other 3 4 4

Additional adjustments made included offering rehabilitation, making special parking arrangements and installing a loop induction system for a deaf member of staff.

5.2 Dismissal of staff In 34 organisations (40%), health and safety practitioners were aware of cases in which members of staff had been dismissed due to their condition presenting a risk in terms of health and safety. Fourteen of these had occurred more than three years ago. Respondents were asked the number of times the employer had had to dismiss someone due to health and safety concerns

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in the previous three years. No employer with fewer than 50 employees reported any such dismissals. The majority of dismissals had occurred in large organisations. There were 13 reports of dismissals from organisations employing over 500 employees, and often these were reports of more than one instance. Table 7 gives details of the frequency of dismissal due to health and safety concerns by size of organisation for the 19 for which the information on size was provided.

Table 7 Number of dismissals due to health and safety concerns in past three years, by size of organisation

Size of Number of instances in last three yearsorganisation

1 2 3

50-99 1 - -

100-249 2 - -

250-499 2 - 1

500+ 2 2 3

4 6 15 20 75

- - - - -

- - - - ­

- - - - ­

2 1 1 1 1

In organisations that had decided that the health and safety risk was too great to continue with employment of the individual concerned, most often an occupational physician made this decision (in 32 organisations, or 38% of cases). Other individuals likely to be involved in making such decisions were personnel officers (13 organisations, or 15%) or the management team (11, 13%). In nine organisations (11%) another doctor had been brought in to advise. In eight organisations the OH nurse had played a role in the decision.

5.3 Nature of the risk When considering the 34 cases, the most important factor was fear of a risk to the health and safety of the individual him/herself (32 cases, 94% of all cases). A further seventeen respondents (50% of cases) indicated that the fear had been for the safety of other employees, while thirteen (38%) were concerned about the safety of members of the public. Ten respondents (29%) indicated that additional factors had been concern that the organisation was breaching health and safety law and the same number feared litigation arising from the individual themselves were their condition to deteriorate while employed. Table 8 shows the range of conditions that had led organisations to dismiss someone from work:

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Table 8 Disabilities believed to present a risk to health and safety and leading to dismissal

Number of Per cent of all Per cent of organisations organisations organisations who had dismissed staff

(n=85) (n= 32) Musculoskeletal conditions 20 24 63

Heart condition 17 20 53

Mobility or dexterity 11 13 34

Mental illness 10 12 31

Other neurological conditions 9 11 28

Other 8 9 25

Chest conditions 7 8 22

Epilepsy 6 7 19

Sight impairment 3 4 9

Stomach/liver conditions 3 4 9

Hearing impairment 2 2 6

Diabetes 2 2 6

Skin conditions 2 2 6

HIV/AIDS 1 1 3

In only four cases did respondents believe that more could have been done. Six said they did not know whether more could have done. Presented with a list of factors that might have helped them to retain the member of staff, six respondents indicated that some possibly might have helped. Help from managers was mentioned by four respondents, while two respondents endorsed each of the following factors: more information about disability legislation, more information about how to make adjustments, expert advice and financial help. One respondent indicated that help from co-workers would have helped, and one indicated that the individual themselves could have helped.

HEALTH AND SAFETY CONCERNS

Nearly a third of health and safety practitioners had some general health and safety concerns regarding the employment of people with disabilities, injuries of ill-health conditions. In many cases though, their concerns were restricted to the likely impact of the condition on certain categories of work, as shown in Table 9.

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Table 9 Employing disabled people: proportion of respondents with concerns relating to the health and safety of people with different conditions in different occupations

Managerial/ Technical Admin/ Manual Professional positions (%) clerical positions (%) positions (%) (n=85) positions (%) (n=85) (n=85) (n=85)

Impaired mobility or dexterity 6 20 8 66

Hearing impairment 6 12 6 33

Sight impairment (n=33)* 12 48 15 55

Diabetes 1 4 1 18

Chest condition 4 8 4 34

Musculoskeletal disorder 9 13 35 65

Epilepsy 8 21 8 45

Other neurological conditions 12 19 12 46 (e.g. MS, Parkinson’s disease)

Heart condition 21 19 12 53

Mental illness 39 29 21 34

Stomach or liver condition 7 6 5 17

HIV/AIDS 6 8 5 11

Skin condition 2 9 2 29

Learning disability 21 24 11 15

Dyslexia 13 19 12 9

Other 1 4 1 1

*Due to a printing error sight impairment was omitted from the original questionnaire. All 85 respondents were contacted and of these 33 provided a response on sight impairment.

The other types of disability that people mentioned were colour blindness, ototoxicity and blindness.

It is interesting to see that there is considerable variation in the perception of health and safety concerns according to type of condition and job category. Overall, practitioners were more likely to express concerns about manual positions. For example, 66% of practitioners have concerns about impaired mobility or dexterity for people in manual positions, compared with only 6% who have concerns in relation to managerial and professional positions. The highest proportion expressing concern about mental illness is in relation to people in managerial and professional positions – 39%, compared with 34% for manual positions, 29% for technical positions and 21% for administrative or clerical positions.

6.1 Concerns relating to specific groups of people Only small numbers of respondents had specific concerns relating to particular groups of disabled individuals, such as men or women, groups from specific ethnic backgrounds or of particular ages. The one group that did cause concern in over 20% of respondents was people whose first language is not English. Examples of the concerns expressed are given below:

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Health and safety concerns relating to specific groups of disabled individuals · People whose first language is not English can cause problems with certain assignments. A

full day’s health and safety induction is given, [but] there can be communication problems. · Ensure communications regarding health and safety are understood [by] feedback being

received from those individuals concerned. · For individuals whose first language is not English, staff must ensure that there is an

understanding of health and safety issues. · People whose first language is not English may not understand written instructions, safe

systems of work etc, creating possible health and safety related accidents/incidents. · Many people do not have experience in safety within many situations in life conflict etc.

Communication in safety is paramount – English must be clearly understood to avoid misunderstanding.

6.2 Statutory obligations Respondents were asked to indicate the extent to which the Disability Discrimination Act 1995 had had an impact on their organisation in terms of their recruitment of people with disabilities, injuries or ill-health. Five (6%) thought there had been a major impact. Twelve (14%) felt there had been no impact at all, while 40 (47%) felt that any impact had been minor. A further 20 (24%) felt that any impact had been moderate, and seven felt unable to gauge the impact.

Nearly a third of respondents (31%) felt that the DDA 1995 had had no impact on the retention of staff with disabilities in their organisation. The same number reported that any impact of the DDA on retention had been minor. Nineteen respondents (22%) felt that there had been some moderate impact, and just five (6%) reported the legislation as having had a major impact.

A similar distribution of responses was seen when respondents were asked to consider the impact of the DDA on their job in terms of the recruitment and retention of people with disabilities. Six (7%) felt the impact had been major, 22 (26%) felt the impact had been moderate, and 26 (31%) felt it had been minor. A quarter (21 respondents) felt there had been no impact whatsoever.

Health and safety practitioners were asked if they felt there was any conflict between the DDA and their compliance with statutory health and safety requirements. Just ten respondents (12% of the group) felt that there was some conflict.

Respondents' views on conflicts between the DDA and health and safety laws

· “Conflict sometimes arises when assigning temporary workers – disability may make a tolerable risk intolerable because of the nature of the disability.” - Recruitment agency

· “Comparing DDA95 to the Management of H&S 99, (Reg.3) Risk Assessment, I find it conflicts if risks to the employee have been identified and action needs to be taken, i.e., if the employer can’t change or move the employee elsewhere within the company, would the employer [be considered to be] discriminating against the employee?” - Print and direct mail company

· “I understand health and safety always takes precedence over disability.” – Pharmaceutical manufacturer

· “We are required under HASA 74 to employ competent, trained people and to ensure they can complete the duties expected under section 7/8. The Act, if followed to the letter, does not allow disabled people to do the same thing (how can they?) in a normal production arena. It may impose extra responsibility on the non-disabled employee.” - Confectionery manufacturer

SOURCES OF ADVICE

Finally, respondents were asked what sources of advice, information and support they had used in connection with health and safety issues relating to the employment of people with disabilities, injury or ill-health. Table 10 shows the most frequently used sources of advice:

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Table 10 Sources of advice

Number of organisations Per cent of organisations n=85 HSE offices 38 45

Professional organisations 34 40

Disability organisations 33 39

DEA advisors at local Job 32 38 Centre

HSE InfoLine 25 29

Trades Unions 22 26

Lawyers 22 26

Local Authority inspectors 15 18

Other employer organisations 14 17

Charities 10 12

Disability Rights Commission 9 11 helpline

Confederation of British 8 9 Industry

Other 7 8

Conclusions

The majority of health and safety practitioners indicated that their organisation screen for disability and ill-health at recruitment. The most frequent means of screening was by questionnaire or health declaration. However, only a minority of health and safety practitioners was involved in recruitment, and they were not involved in the vetting of health questionnaires.

The majority of organisations include an assessment of the impact of any disability, injury or ill­health condition when conducting risk assessments, and a majority reviewed these when new employees joined. Three-quarters also reviewed risk assessments when an employee developed a disability or injury or became unwell. Reviews of health and safety were undertaken by a health and safety advisor or manager in two-thirds of cases, and by managers in a third of cases. In just over a quarter of organisations, these risk assessments had led to the decision not to offer a job to a person with a disability, injury or ill-health condition, or had decided it was not possible for an individual to continue working in a particular role.

When such decisions were made, most often the concerns were for the risk to the person with the disability or ill-health condition, but the safety of other employees and the public were also a concern. Employers were also concerned about potential breaches of health and safety law.

Over two-thirds of organisations had overcome difficulties in order to recruit or retain individuals with a disability, injury or ill-health condition. However, in more than a third of organisations, health and safety practitioners were aware of cases in which members of staff had been dismissed due to their condition presenting a risk in terms of health and safety. The most important factor in these decisions was the potential risk to the individual themselves. Again, though, there were also fears for other members of staff and the public, and fears about potential breaches of health and safety law. A further concern was the possibility of litigation from the

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individual were their condition to deteriorate.

In total, nearly a third of health and safety practitioners had health and safety concerns regarding the employment of people with disabilities, injuries or ill-health conditions. There was considerable variation in the perceptions of potential health and safety risks arising from different types of condition for specific employee groups. More practitioners had concerns relating to manual workers than for other groups for all but three of the specified conditions. For mental illness, practitioners had more concerns regarding managers, while for learning disabilities and dyslexia, health and safety practitioners had most concerns regarding technical workers.

Nearly half the respondents (47%) considered that the DDA had had a minor impact in their organisation on the recruitment of people with disabilities, injuries or ill-health conditions. Nearly one-third (30%) thought the legislation had a moderate or major impact. A similar proportion (28%) thought the DDA had had a moderate or major impact on the retention of disabled staff, while one-third thought it had had a minor impact and one third thought it had had no impact.

Just a small proportion (12%) believed there to be any conflict between the requirements of the DDA and statutory health and safety requirements.

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CHAPTER 7 HEALTH AND SAFETY REPRESENTATIVES’ SURVEY

INTRODUCTION

The survey examines workplace health and safety representatives’ attitudes to the health and safety issues affecting the employment of disabled or sick staff. It forms part of a joint Disability Rights Commission/HSE research project evaluating the extent to which concerns about health and safety are affecting the recruitment and retention of people with disabilities, ill health conditions or injuries. The schedule is in Appendix 5.

A postal questionnaire was sent to 7,932 safety representatives listed on the TUC’s database, eliciting a response rate of 581 (7%). This response rate, according to the TUC, is in line with other surveys using this database. Previous TUC surveys have elicited a response from around 800-1,000 respondents, but for considerably shorter questionnaires, dealing directly with union issues. In a recent trade union survey, over half the safety representatives responding said that they only did one hour or less on health and safety, often because their employers would not let them spend more time. It is therefore possible that some of the representatives would not have had the option to complete the detailed survey in work time. In addition the representatives were surveyed by the Labour Research Department earlier this year, and that too may have reduced the response.

Participants were asked for:

· information about their employers’ procedures, policies and actions; · details of their own involvement in the health and safety aspects of recruiting and retaining

staff with disabilities; and · their own attitudes to the potential health and safety risks associated with specific

conditions.

Around half the 581 survey respondents (51%) work in public sector organisations, while just over a third (37%) work in the private sector, 10% within the NHS and 2% in the voluntary sector. Large organisations are most heavily represented, with 59% of respondents working in organisations employing 500 or more people; 9% in companies employing 250 to 499; 11% in those with 100 to 249 employees; and 6% and 7% respectively in those employing between 50 and 99 and less than 50 employees.

Just over three-quarters (77%) of respondents have completed the basic 10-day health and safety representative course, and most (59%) work in organisations with their own occupational health (OH) department. A similar proportion (60%) says their organisation uses the services of an occupational physician and 61% have access to an OH nurse.

The vast majority of organisations represented are UK-based, although some are based in continental Europe, Asia, Canada and the US. Most respondents (56%) are employed in ‘health and social work, education’ and public administration, while one in five works in manufacturing and 12% in the transport and communications sector. Around 3% come from mining and utilities, with similar numbers in the ‘retail/wholesale trade and repairs, hotels and restaurants’; and ‘financial administration, real estate etc’. Sectors represented by a just a few respondents are construction, and agriculture, forestry and fishing.

The uneven spread of respondents across sectors (particularly the very small numbers in certain sectors), as well as the bias to large organisations, limits the potential for identifying any significant differences between occupational sectors and between large, medium and small

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enterprises. However, some differences do emerge from the responses, which may be worth investigating further. There is also some evidence of differences in policies, procedures and attitudes between public and private sector employers.

2 POLICIES AND RISK ASSESSMENTS

Most respondents (57%) work in organisations with a disability policy – either as a stand-alone policy or as part of a wider diversity policy. However, nearly a quarter (23%) does not know whether their organisation has such a policy and 18% say it does not. When asked if the policy takes account of both disabled people and those with ill health conditions and injuries, 44% of all respondents answer yes, compared with 19% who say no. Less than a quarter (22%) of respondents say the policy makes reference to health and safety issues.

Disability policies are least common in manufacturing, where only 38% say their organisation has a policy. This compares to 67% in ‘health, social work, and education’, and 72% in public administration. Organisations in the private sector are considerably less likely to have a disability policy than those in the public sector, with 41% of respondents in the private sector saying their organisation has a policy, 68% in the public, and 65% in the NHS.

Respondents were also asked how disability and long-term ill health and injury issues are incorporated in risk assessment procedures in their organisation. The majority (58%) of respondents say their employers review assessments taking into account new employees, with around half (49%) saying their employer includes an assessment of the impact of disability, ill health and injury. However, a third say risk assessments do not include this as a factor and 15% do not know. The person most likely to be reviewing risk assessments is the person in charge of health and safety (65%), followed by a health and safety practitioner or the management team (both 18%).

Just over one in ten respondents (12%) say that risk assessments have precluded employment of people with particular disabilities, ill health conditions or injuries, while 37% say it has never happened and almost half (48%) say they do not know. When asked to provide examples, respondents’ replies include instances where people have been stopped from doing specific types of work in certain departments, or have been unable to continue working. Replies included:

· “Due to epilepsy, as they are not allowed to use certain machines, and asthma sufferers within similar areas.” (from a respondent in manufacturing)

· “Hearing disability stopped employees from driving forklift trucks.” (manufacturing) · “WRULDS – not allowed to undertake jobs which involve a lot of keying.” (financial

administration, real estate etc) · “They do not think any disability is acceptable in workshops.” (health and social work,

education etc)

Musculoskeletal problems are most commonly mentioned, followed by mobility problems, asthma and hearing impairment. Also mentioned three times or more are epilepsy; pregnancy; heart conditions; sight problems; statutory job requirements for police, railways, fire and prison service; and skin disorders.

3 EMPLOYMENT AND RECRUITMENT

Just over three quarters (76%) of respondents say their organisation employs some disabled people based on the broad definition of disability as outlined in the Disability Discrimination Act 1995 (“a physical or mental impairment which has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities”). Just 18% say their organisation does not employ any disabled people.

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Safety representatives working in public administration and ‘financial administration, real estate etc’ are most likely to say some disabled people are employed (83% in each sector), compared with 78% in ‘health and social work, education’, and 50% in construction. Respondents working in the public sector are more likely to have disabled employees in the workforce (81%) than in the private sector (68%). The proportion saying their employer employs some disabled people also declines with size of firm: 84% for firms with over 500 employees; 74% for those with 250-499; 66% for 100-249; 60% for 50-99; and 56% for organisations employing less than 50.

Of the 443 safety representatives that say their organisation employs disabled people, 257 (58%) do not say how many are employed; 30% say between one and ten; 4% say 11 to 20; and around 3% say between 21 and 50.

The figures indicate that employers are more likely to make changes to their health and safety arrangements to retain rather than to recruit staff with disabilities, injuries or ill health conditions. Just 17% of respondents say their employer has made changes to help recruit a disabled person, while 42% say this has not happened and 40% do not know. This compares to 39% that say changes have been made to help retain a staff member, 29% that say no changes have been made and 31% that do not know. Public sector organisations are more likely than private companies to have made changes for both recruitment and retention purposes.

Table 1 Health and safety changes made – recruitment/dismissal

All respondents (%) Public sector Private sector respondents (%) respondents (%)

Yes No Don’t Yes No Don’t Yes No Don’t know know know

H&S changes to recruit a 17% 42% 40% 22% 35% 42% 11% 53% 35% disabled person

H&S changes to retain a 39% 29% 31% 42% 25% 31% 22% 38% 28% disabled employee

* n = the total number of respondents.

OVERCOMING HEALTH AND SAFETY DIFFICULTIES

The respondents were also asked more generally if their employer has ever overcome any health and safety problems associated with recruiting or retaining staff with disabilities, ill health conditions or injuries. Again, employers seem more willing to overcome problems connected with existing employees’ disabilities, than those associated with recruiting disabled staff.

Asked if their employer has ever overcome any health and safety difficulties associated with recruiting a disabled or sick staff member, almost one in three (29%) answer yes, 20% say no, and 45% do not know. The proportion of respondents answering ‘yes’ ranges from 40% in public administration to just 17% in transport and communications, and 6% in mining and utilities.

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Table 2 Has your employer overcome any H&S difficulties associated with recruiting a member of staff with a disability, ill health condition or injury?

Sector Total Yes No Do not know respondents

Agriculture, Forestry and fishing 2 2 (100%) - -

Mining and utilities 18 1 (6%) 2 (11%) 14 (78%)

Construction 14 4 (29%) 5 (36%) 4 (29%)

Manufacturing 115 27 (24%) 28 (24%) 50 (44%)

Transport and communications 69 12 (17%) 20 (29%) 34 (49%)

Retail/wholesale trade and repairs, 20 5 (25%) 5 (25%) 8 (40%) hotels and restaurants

Financial administration, real estate 18 6 (33%) 4 (22%) 7 (39%) etc

Health and social work, education etc 204 63 (31%) 35 (17%) 96 (47%)

Public administration 119 48 (40%) 17 (14%) 45 (38%)

All respondents 581 168 (29%) 116 (20%) 260 (45%)

Overall, public sector employers appear more willing to overcome difficulties than those in the private sector, with 35% of respondents in the public sector and 33% in the NHS answering yes to this question, compared with 19% in the private sector.

Changes to working hours and physical adjustments to premises are the most common changes made by employers. Given a choice of adjustments, the most popular reply is ‘allowing a person to be absent during working hours for rehabilitation, assessment or treatment‘, mentioned by 22% of all safety representatives. Next most popular are ‘adjustments for the purposes of access or egress (e.g. ramping)’, and ‘acquiring or modifying equipment or workstations’, each mentioned by 20%. Least cited are ‘modifying instructions or reference manuals’ and ‘modifying procedures for testing or assessment’, both mentioned by 4% (see table 3).

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Table 3 Adjustments to overcome health and safety difficulties associated with disabilities, ill health and injury (recruitment and retention)

Type of adjustment To recruit To retain no. safety no. safety reps (%) reps (%)

For purposes of access and egress – e.g. ramping 116 (20%) 128 (22%)

Other adjustments to premises 86 (15%) 92 (16%)

Transferring the person to fill an existing vacancy 66 (11%) 142 (24%)

Altering the person’s working hours 91 (16%) 170 (30%)

Assigning the person to a different place of work 90 (16%) 172 (30%)

Help with transport 41 (7%) 57 (10%)

Allocating some of the person’s duties to another person 61 (11%) 116 (20%)

Allowing the person to be absent during working hours for 126 (22%) 204 (35%) rehabilitation, assessment or treatment

Giving the person, or arranging for him/her to be given training 81 (14%) 107 (18%)

Modifying the workplace, eg temperature, lighting, humidity etc 77 (13%) 111 (19%)

Acquiring or modifying equipment or workstation 117 (20%) 159 (27%)

Modifying instructions or reference manuals 25 (4%) 30 (5%)

Modifying procedures for testing or assessment 23 (4%) 25 (4%)

Providing a reader or interpreter 31 (5%) 38 (7%)

Providing supervision 51 (9%) 66 (11%)

All adjustments are more likely to have happened in the public sector than in the private and allare more likely in firms employing over 500 staff, compared with smaller companies. Forexample, 28% of respondents from the public sector say their employer has made adjustmentsfor access or egress (compared to 12% in the private sector), and 22% say there have been otheradjustments to premises (compared to 7% in private organisations).

Just over one in ten (12%) safety representatives say they were involved in the process ofmaking adjustments. Of these:

· 24% had recommended adjustments;· 16% had consulted with members; · 15% had participated in a workplace risk assessment; · 10% been involved in assessing the individual’s requirements; · 7% had represented the individual at meetings with management; and · 4% had an advisory role.

EMPLOYMENT DENIED

Overall, about one in ten safety representatives (65 respondents - 11%) say their employer has decided not to offer a job to someone with a disability, ill health condition or injury because it presented a risk to health and safety, while 14% say their employer has never done this. Of those answering yes, 43% fail to say how many times it has occurred in the last three years,

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while 19% say once, 19% twice and 6% three times. Four respondents say it has happened over 10 times, with one of these saying 25 times. The disabled person is most often perceived as being at risk, according to 70 respondents (12% of all survey respondents), while 46 (8%) say the risk is to other employees and 30 (5%) say to members of the public.

A decision not to employ someone on health and safety grounds is most likely to be made by the management team (mentioned by 43% of those identifying the person responsible) followed by an occupational physician (37%), and a personnel officer (34%). Just 8% say a health and safety adviser and 1% the health and safety manager or person in charge of health and safety.

Legal problems are most often seen as other factors involved in the decision. Fear of litigation from the person involved should their condition deteriorate further is the most popular ‘other concern’, mentioned by 26 respondents (5% of all survey respondents and 40% of those saying other concerns were involved). Eighteen respondents (3% of all respondents) say a breach of health and safety law, 16 say fear of litigation from third parties, and 14 say a breach of the statutory requirements for the job concerned.

Twenty one respondents (4% of all respondents and almost a third of those saying their employer has ever not offered a disabled person a position) say they were involved in making the decision. Assessing the individual’s requirements, consulting with members and representing the individual at meetings with management are the most popular forms of involvement, each mentioned by 3 respondents or 14% of those that had been involved in the decision. When given a choice of factors that might have helped in recruiting the individual concerned, ‘expert advice’, and ‘more information on disability legislation’ are each chosen by 49 respondents: 40 respondents choose ‘help from managers’, 40 ‘more information about how adjustments could be made’, 27 ‘help from co-workers’, 24 ‘help from the individual concerned’, and 23 ‘financial help’.

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Overall, respondents working in manufacturing, transport and communications are more likely to report that their employer has ever decided not to offer a job to a person with a disability (17% in each), than those in ‘health and social work, education etc’, and public administration

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(8% each). There are lower and higher figures in other sectors but the numbers of respondents are very small. Again, the public sector is slightly less likely to say this has ever happened – 10% compared to 14% in the private and 4% in the NHS.

There are notable differences in the proportion of respondents identifying those responsible for the decision. In the private sector, it is most likely to be a personnel officer (8% of all respondents), followed by the management team (7%). In public sector organisations, it is most likely to be an occupational physician (6%), followed by the management team (5%).

STAFF RETENTION AND DISMISSAL

Employers are clearly more willing to overcome health and safety difficulties associated with existing employees’ conditions, than those associated with recruiting disabled staff. Well over half (329 respondents -57%) the safety representatives say their employers have overcome such difficulties (compared to 29% when asked about recruitment). Just 13% say their employers have not overcome health and safety related difficulties and a quarter say they do not know.

Table 4 Has your employer ever overcome any H&S difficulties associated with employees disabilities, ill health or injuries ?

Sector Total Yes No Do not know respondents

Agriculture, Forestry and fishing 2 1 (50%) - -

Mining and utilities 18 8 (44%) 2 (11%) 8 (44%)

Construction 14 9 (64%) 2 (14%) 2 (14%)

Manufacturing 115 66 (57%) 18 (16%) 27 (24%)

Transport and communications 69 35 (51%) 12 (17%) 21 (30%)

Retail/wholesale trade and repairs, hotels 20 10 (50%) 4 (20%) 5 (25%) and restaurants

Financial administration, real estate etc 18 9 (50%) 1 (5.6%) 7 (39%)

Health and social work, education etc 204 107 (53%) 24 (12%) 60 (29%)

Public administration 119 82 (69%) 11 (9%) 21 (18%)

All respondents 581 329 (57%) 74 (13%) 151 (26%)

Once again, employers in the public sector seem slightly more willing to do this (59% of respondents), compared to 52% in the private sector.

As with recruitment, the most common adjustments involve changes to working hours, although assigning the person to a different place of work is more popular for retention purposes than recruitment. Just over a third (35%) of all respondents, or 62% of those saying their employer had overcome health and safety difficulties, say the individual involved was allowed time off during working hours for rehabilitation, assessment or treatment, while 30% (52% of those answering yes) say working hours were altered, 30% (52%) say the person was assigned to a different place of work, and 27% (48%) say acquiring or modifying equipment or workstation. (See Table 1)

In the private sector, the most popular adjustments are allowing time off for rehabilitation, assessment or treatment (33%), assigning the person to a different place of work (32%), and

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transferring the person to an existing vacancy (26%). In the public sector, allowing time off for rehabilitation is still most popular (36%), but the second most common is acquiring or modifying equipment (34%), followed by altering working hours (30%).

Safety representatives are more likely to be involved in decisions relating to retention than in recruitment decisions, with 22% (128 respondents) saying they had been involved (compared to 4% or 21 respondents in recruitment decisions). Almost a quarter of these say they had represented individuals at meetings with management, 20% had recommended adjustments, 13% had played an advisory role, and 10% had consulted with members. Just 9% had been involved in the assessment of the individual’s requirements and 6% had participated in a risk assessment of the workplace.

6.1 Dismissal on health and safety grounds Despite an overall willingness to make changes to retain staff, over one in three respondents (216 safety representatives - 37%) says their organisation has ever dismissed (including the provision of early retirement) someone with a disability, ill health problem or injury on the grounds that their condition would present a health and safety risk (22% say this has never happened). Almost a quarter (23%) of those reporting that their employer has ever dismissed someone say that it has happened once in the last three years, 17% say it has happened twice, 11% three times, and around 3% say between 11 and 20 times. The person most likely to have made the decision is an occupational physician (identified by 58% of those saying a dismissal has occurred), followed by the management team (45%), a personnel officer (40%), and another doctor (26%). Just 10% say a health and safety advisor or the person in charge of health and safety.

There are some sectoral differences in the proportion of respondents saying a dismissal has taken place, with the private sector considerably more likely to have done this (46%) compared to the NHS (39%), the public sector (31%), and the voluntary sector (10%). An occupational physician is most likely to have made the decision in the NHS and the public sector, while in the private sector it is the management team. Those in manufacturing (51%) and transport and communications (52%) are more likely to report a dismissal than those in public administration (24%) and ‘health and social work, education etc’ (31%).

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Table 5 Has your employer ever dismissed someone with a disability, ill health condition or injury ?

Sector Total Yes No Do not know respondents

Agriculture, Forestry and fishing 2 2 (100%) - -

Mining and utilities 18 10 (56%) 2 (11%) 5 (28%)

Construction 14 3 (21%) 8 (57%) 3 (21%)

Manufacturing 115 59 (51%) 21 (18%) 30 (26%)

Transport and communications 69 36 (52%) 9 (13%) 22 (32%)

Retail/wholesale trade and repairs, 20 8 (40%) 7 (35%) 4 (20%) hotels and restaurants

Financial administration, real estate etc 18 5 (28%) 3 (17%) 8 (44%)

Health and social work, education etc 204 63 (31%) 41 (20%) 89 (44%)

Public administration 119 29 (24%) 33 (28%) 53 (45%)

All respondents 581 216 (37%) 125 (22%) 214 (37%)

The health and safety risk is most commonly perceived as being to the disabled person themselves (according to 82% of those that say such a dismissal has taken place and 29% of all respondents), followed by other employees (31% and 11%), and the public (10% and 7%). When asked about other concerns involved in the decision, fear of litigation from the person involved if their condition should deteriorate is most common. This is followed by payment of ill health benefits, breach of statutory requirements for the job, and a breach of health and safety law.

Musculoskeletal disorders (identified by 19% of respondents), impaired mobility and dexterity (16%), heart conditions (12%) and mental illness (11%) are the conditions most likely to have resulted in dismissal on the grounds that they posed a health and safety risk. Around 6% also mention other neurological disorders such as MS and Parkinson’s Disease, and chest conditions.

Far fewer safety representatives say they were involved in the dismissal process than in helping to overcome difficulties to retain staff, with just 11% (66 respondents) indicating an involvement. Of these, about a third (35%) say they represented the individual at meetings with management, 12% had consulted with members, and 5% had been involved in the assessment of the individual’s requirements.

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Chart 2 Dismissal for health impairment

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Overall, more respondents agree with the dismissal decisions than disagree. Well over half (56%–122 respondents) of the 216 claiming that their employer has ever dismissed a disabled or sick person on the grounds that they were a health and safety risk agreed with the decision: about 40% (85 respondents) disagreed. Around half (107 respondents) also state that nothing more could have been done to prevent the dismissal, while just over a third (78 respondents – 36%) say more could have been done.

Of those saying more could have been done, the vast majority feels that more information about disability legislation, expert advice, help from managers and more information about how adjustments could be made would have been most useful in helping to avoid the dismissal (See Table 6).

Table 6 Factors that may have helped avoid dismissal

Factors No. of respondents (% - n=78) More information about disability legislation 74 (95%

Expert advice 73 (94%)

Help from managers 73 (94%)

More information about how adjustments could be made 67 (86%)

Financial help 33 (42%

Help from co-workers 31 (40%)

Help from the individual involved 28 (36%)

CONCERNS FOR HEALTH AND SAFETY

To ascertain the safety representatives’ own attitudes to employing disabled or sick staff in certain types of work, survey participants were asked whether they would have concerns about

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the health and safety implications of employing people with listed conditions in managerial/professional, technical, administrative/clerical, and manual posts. (See Table 7)

Table 7 Proportion of respondents with health and safety concerns about employing people with different conditions in different occupations

Condition No. and proportion of safety representatives with health and safety concerns (Base = 581)

Managerial/ Technical posts Administrative/ Manual professional clerical posts posts posts

Impaired mobility or dexterity 58 (10%) 134 (23%) 52 (9%) 307 (53%)

A hearing impairment 52 (9%) 84 (15%) 54 (9%) 154 (27%)

Diabetes 21 (4%) 22 (4%) 18 (3%) 53 (9%)

A chest condition 34 (6%) 52 (9%) 31 (5%) 192 (33%)

A musculoskeletal disorder – e.g. 64 (11%) 128 (22%) 114 (20%) 317 (55%) back, neck or wrist pain

Epilepsy 67 (12%) 124 (21%) 60 (10%) 221 (38%)

Other neurological conditions 94 (16.2%) 136 (23%) 93 (16%) 269 (46%) (e.g. MS, Parkinson’s Disease

A heart condition 98 (17%) 97 (17%) 58 (10%) 260 (45%)

Mental illness 231 (40%) 194 (33%) 163 (28%) 199 (34%)

A stomach or liver condition 41 (7%) 44 (8%) 34 (6%) 79 (14%)

HIV/Aids 43 (7%) 49 (9%) 33 (6%) 77 (13%)

A skin condition 31 (5%) 51 (9%) 27 (5%) 115 (20%)

A learning disability 166 (29%) 155 (27%) 105 (18%) 76 (13%)

Dyslexia 103 (18%) 112 (19%) 121 (21%) 59 (10%)

* Due to a printing error sight impairment was excluded from the list for this question.. Due to the nature of the database it was not possible to contact respondents to remedy this omission.

Mental illness emerges as the condition most likely to cause concern in all but manual jobs, where musculoskeletal disorders cause most concern. Forty percent of respondents say they would have concerns about employing someone with a mental illness in a managerial/ professional position (though 36.5% say they would not), 33% in a technical position (40% do not have concerns), and 28% in an administrative/clerical post (48% have no concerns). Those working in the private sector are more likely to see mental illness as a cause for concern in managerial (42%) and manual positions (48%) than those in the public sector (36% and 25% respectively).

Learning disabilities and dyslexia also feature high on the list of conditions that raise health and safety concerns amongst safety representatives. Almost one in three respondents (29%) has concerns about employing people with learning difficulties in managerial positions, 27% in technical positions, and 18% in administrative jobs. Learning disabilities are the second most important concern for both managerial and technical positions. Dyslexia also features highly, being the second most common concern in administrative/clerical positions and third in managerial. Twenty one percent say it would raise concerns in administrative jobs, 18% in

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managerial jobs, 19% in technical positions and 10% in manual work (where it features well down the list of concerns). Epilepsy also causes concern, though more for technical (21%) and manual (38%) positions than for managerial (12%) and administrative posts (10%).

Musculoskeletal conditions such as back and wrist problems particularly cause concern when employing people in a technical, clerical and manual capacity. For technical positions, 22% say they would have concerns about employing someone with a musculoskeletal disorder, compared to 20% in relation to clerical work (the third most popular cause for concern). This rises to 55% for manual workers, where it is the top cause of concern. For managerial jobs, musculoskeletal disorders would be a source of concern for 11% of respondents.

As might be expected due to the nature of the work, the proportions of safety representatives expressing concerns are highest for almost all categories in relation to manual work. The top five conditions most likely to cause concern are musculoskeletal disorders (55%), impaired mobility or dexterity (53%), other neurological disorders such as MS, Parkinson’s Disease etc (46%), a heart condition (45%), and epilepsy (38%). Relatively high proportions also have concerns about mental illness (34%), chest conditions (33%), hearing problems (27%), and skin conditions (20%).

Across all types of jobs, safety representatives are least likely to have concerns about employing people with diabetes (4% both for managerial and technical positions, 3% for administrative jobs and 9% for manual work). Skin conditions and chest conditions also give little concern across all occupational groups, apart from manual. When asked to list any other conditions that might give them concerns, two respondents raise drink/drug problems in relation to administrative or managerial positions, while four raise sight/blindness for technical positions, three for manual and one each for managerial and administrative posts.

STATUTORY OBLIGATIONS

Respondents were also asked for their views about the impact of the Disability Discrimination Act (DDA) and whether they perceive any conflict between the operation of the DDA and compliance with health and safety duties. While 45% see no conflict between the two, one in five (20%) believes there is some conflict, and almost a third (31%) say the do not know. Overall, respondents in public administration appear less likely to see a conflict (12%) than respondents in transport and communication (28%). There are no discernible public/private sector differences in the proportion of respondents saying they see a conflict, but more see no conflict (48%) in the public sector/NHS than in the private sector (40%).

Respondents' views on conflicts between the DDA and health and safety laws

· When asked to expand on the nature of the conflict, many respondents focus on how the physical/mental prerequisites of some jobs mean that it may not be possible to comply with both health and safety requirements and the DDA. For example:

· the two conflict “where the rights of the individual for fair employment conflict with safety or the physical nature of the job…” (from a respondent in health and social work, education etc)

· “Certain disabilities preclude persons to be employed or continue in employment by the very nature of the profession/employment/job.” (transport and communications)

· “There are certain disabilities that make it positively dangerous to work in my industry, yet there seems to be pressure from the Act to employ these people and carry out modifications and training.” (mining and utilities)

· “We would like to comply, i.e. employ disabled persons, but the nature of the job makes it unsafe.” (transport and communications)

· Other respondents say organisations have insufficient resources to allow people with disabilities to operate safely, and some talk about the general difficulties connected with making significant adjustments or modifications both to accommodate the Act and meet health and safety requirements:

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· “Some jobs are very difficult to do with certain disabilities and it is a problem to find resources that would allow certain disabilities to operate effectively with some work. If resources were unlimited it would be no conflict just how to manage it.” (health and social work, education etc)

· “…the costs involved with compliance to allow us to recruit disabled people would be prohibitive.” (manufacturing)

· “Due to the nature of some jobs and work environments, it may not be possible to comply fully with legal requirements without significant modifications.” (health social work, education etc)

· “Costs of providing reasonable care of workers (are) expensive. Employing people with disabilities is a drain on profit. Employers want maximum flexibility from their workforce.” (manufacturing)

· “Namely that costs of suitable modification may be costly. Minor modifications will and have been carried out.” (transport and communications)

“Reasonably practicable DDA assessment for this college estimates £500,000 minimum for compliance. We do not have such a sum.” (health and social work, education etc)

There are also several references to a tendency for employers to use health and safety risks as an excuse not to employ disabled people. For example: “If an employer wishes to remove a disabled person from their employment he can always find a health and safety reason to do so.” (health and social work, education etc)

Over half the respondents said that the DDA has only had a minor impact or no impact (29% said a minor impact and 23% no impact). Just 9% think it has had a major impact and 21% a moderate impact. In relation to health and safety legislation, the picture is broadly similar with 29% saying it has had minor impact and 22% no impact. Only 8% think it has had a major impact but 24% see it as moderate.

Although one in ten respondents (11%) believes the DDA has had a major impact on their functions as a safety representative in terms of recruiting and retaining employees with disabilities, the majority thinks its effects have been only limited, with 27% saying it has had a minor effect and 28% no effect. Nearly a quarter (23%) reports that it has moderately effected their work. When asked about the effects of health and safety legislation on their work in the recruiting and retention of disabled and sick employees, 60% say it has had no or only minor impact, while 19% see it as moderate and 8% as major.

9 OBTAINING ADVICE

Respondents were finally asked about their employers’ use of advice and information about the health and safety issues connected with employing disabled people. The most popular source emerges as trade unions, with almost a third (32%) of respondents saying their employer had contacted them. HSE offices are the next most common source (22%), followed by professional organisations and lawyers (17% each), local authority inspectors (15%), and disability organisations (12%). Only 6% had consulted the Disability Rights Commission helpline.

10 CONCLUSIONS

The findings from the survey highlight some different practices between sectors, as well as differences between the public and private sector.

· Nearly three out of five representatives were working in organisations where risk assessments are conducted taking into account new employees. Just over one in 10 said that there had been an occasion where the risk assessments had precluded the employment of people with disabilities or ill-health conditions.

· Less than one in three respondents said their employer had made changes to overcome health and safety difficulties to help recruit a disabled person, compared with three out of five who said that the changes had been made to help retain an employee. Respondents in

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the public sector were more willing to overcome health and safety difficulties than those in the private sector.

· Around one in 10 safety representatives said their employer had decided not to offer a job to someone with a disability, ill health condition or injury, because it presented a risk to health and safety. A higher proportion, more than one-third said that their organisation had dismissed someone with a disability or ill health condition on health and safety grounds. In both cases the health and safety risk is most commonly perceived as being to the disabled person themselves.

· Mental illness is cited as the condition most likely to cause health and safety concerns in all but manual jobs, where musculoskeletal disorders cause the most concern.

· One in five respondents perceived there to be some conflict between the DDA and health and safety laws, compared with more than two in five who did not think there was and one­third who did not know.

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CHAPTER 8: EMPLOYER CASE STUDIES

METHODOLOGY FOR EMPLOYER CASE STUDIES

As part of this project it was decided to interview 20 employers to provide case histories of how policy towards the employment of people with disabilities or ill-health conditions is affected by health and safety requirements and how it is implemented in practice. The employers were selected primarily on the basis of their responses to the employers’ survey, and a few were chosen from the responses to the OH practitioners and health and safety practitioners’ survey. Potential case studies were written to in advance to request their participation and this was followed by a telephone call. Anonymity was promised to all who participated.

Some of those contacted declined to participate. In some cases this was due to pressure of work, in others it was because they did not consider they could provide any information additional to their survey response.

Seventeen case studies have been completed. This analysis is based on 16 interviews as one was rescheduled by the respondent too late for inclusion. A further case study was agreed by a respondent who was not then available to schedule an interview in time for this report. The topic guide for the interview is contained in Appendix 6.

The case studies were selected to provide examples from different sectors. Of the 17, 11 are in the private sector and five in the public sector and one large national charity. The private sector includes case studies from manufacturing, financial services, healthcare and agriculture. The public sector includes further education, healthcare, local government and other major public sector organisations which cannot be identified. A range of organisations of different sizes was also chosen.

In selecting the case studies, priority was also given to organisations that indicated that they had sought to overcome health and safety barriers to recruit or retain people with a disability or ill­health condition.

Because all participants were guaranteed anonymity, it has been decided not to provide mini­case studies which might identify the organisations. Instead, the key issues which emerged from the case studies are discussed below. Where quotations are provided, these extracts do not contain any information that might identify the informant.

1 EMPLOYMENT POLICIES

Of the 16 organisations, two did not have a written policy on the employment of disabled people and one informant was not clear, as the organisation had recently undergone a merger. However, the nature of the written policy varied considerably – some were simply a sentence or two within an equal opportunities or diversity policy. Others were detailed stand-alone policies.

There did not appear to be any overlap between an organisation’s employment policy and its health and safety policy. All respondents said that the disability policy/statement made no reference to health and safety issues, and they did not know of any reference to disabled employees within the health and safety policy.

2 RECRUITMENT PRACTICES

All informants were asked at what stage in the recruitment process an applicant would be asked to state if they have a disability, ill-health condition or injury. The policy varied considerably as

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did the notion of what constituted good practice. The majority of organisations said that they included a question on the application form. Most said that this was purely to enable the recruiters to make any necessary adjustments for the recruitment procedure, others appeared to be using it as an initial filtering process. One large public sector organisation acknowledged that the purpose of the question and the accompanying health questionnaire was “to rule out people with particular disabilities which are thought to conflict with a particular job”.

Those organisations that did include a question on the application form also differed in their approach. Some had a tear-off slip that was not seen by those involved in shortlisting, while other organisations included the question as an integral part of the form. A private health organisation includes a question about whether the applicant considers himself or herself to have a disability. But this is prefaced by the statement that an interview is guaranteed to disabled people who meet the minimum criteria for the post.

One private sector organisation said that because of the DDA, managers were actively encouraged not to ask for any information concerning a disability or ill-health condition until the job offer stage. At that point a confidential health questionnaire is sent out with the job offer and returned to the OH nurse and occupational physician.

It is clear that organisations differ in what they regard as the appropriate stage of the recruitment process to enquire whether an applicant has a disability.

HEALTH SCREENING

A few organisations said that a confidential health questionnaire was sent out to all applicants, while others, like the example above, said that it was only sent out with job offers. Those who sent it out with the job offer said that the purpose was to identify if any adjustments were required.

It is clearly important that trained occupational health professionals assess the information gathered in this way. There were several examples from our case studies of how this was done.

In an agriculture and research organisation, OH professionals carry out the health screening. In one case, a job applicant applied with a degenerative disease. The OH nurse and the occupational physician carried out an assessment of the individual following the completion of the health questionnaire. The job involved lifting heavy sacks. The applicant’s manual handling duties were restricted and some transferred to another person. The OH practitioners considered there to be health risks to the individual if the adjustments were not made. As a result of the adjustments it was possible to recruit the individual.

4. RISK ASSESSMENTS

All the case study organisations conduct risk assessments. Most said that they did not specifically include an assessment of the impact of disability or ill-health in the risk assessments. Instead they would re-evaluate the risk assessments if a new employee with a disability joined, or when an existing employee developed a disability.

Some organisations said that risk assessments had never precluded the appointment of someone with a disability. Most examples that were given were restricted to manual jobs. For example, one manufacturing employer said that people with asthma were precluded from working in some parts of the factory and people with musculoskeletal disorders could not be employed in manual handling. Rather than attempt to modify the work process the company attempted to match people to the most suitable jobs “where the disability or ill-health would not be a problem”.

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In another example, manufacturing company, an assessment by the occupational physician advised that it was not possible to recruit an applicant with epilepsy. The job involved working with moving machinery and driving a fork lift truck. In the light of the fact that the applicant had had epileptic episodes in the past six months, it was decided that he could not safely undertake the work. The risk was identified as being to the disabled person and to be in breach of health and safety law.

In one company in the financial services sector, the risk assessment resulted in a decision not to employ someone who had suffered a heart attack.

“The man was offered the job of team leader on the IT help desk, a potentially highly pressurised job which at times can involve long, unpredictable, stressful hours of work and responsibility for maintaining business critical systems. The job was offered to someone who had not disclosed that two years ago he had had a serious heart attack and was still taking medication.

In the pre-employment screening this was discovered, and the company doctor advised that it was not possible to employ that person in that job. Consequently (and the fact that the applicant had not disclosed the condition) the man was not appointed.”

According to the informant the man had already resigned his old job and threatened to complain that he had been discriminated against under the DDA, but in the end he did not complain. In this case it appears that the risk identified was solely to the health of the individual concerned, but that the individual appeared to be willing to take that risk.

RETENTION

As found in the postal surveys and telephone interviews, employers appear willing to consider a wide range of adjustments to retain an employee who becomes disabled or develops an ill­health condition. The FE College gave several examples of retention. They included the two following cases:

· A lecturer developed a mobility difficulty. He was assessed by an occupational health assessment agency. The College had to make changes to the evacuation procedures, sort out the handrail and ensure that people would be on standby to assist in any evacuation.

· An individual working as a caretaker did not appear to be fulfilling the requirements of the job in terms of report writing. He then admitted that he had dyslexia. The College had him assessed and then provided specialised printed materials and IT training. “Once he gets to a certain standard, we have a computer waiting for him with voice recognition software. He will then be able to generate reports, and sort out delivery notes and purchase orders. That probably £3,000 outlay, but the chap would have had to get involved in the evacuation process. It’s likely he would have had to read instructions on evacuation, so health and safety wise, it was difficult.”

In both cases, the employer sought advice from both occupational health practitioners and the Disability Employment Advisers in determining the necessary adjustments. In view of the fact that it is the employer who is sometimes seen as citing evacuation procedures as a health and safety risk in employing disabled employees, it is interesting that in this example, the personnel manager did note that there had been a lot of problems in this case and others confirming with the fire service what is an acceptable policy for evacuation.

Mental illness is a condition that some employers admitted they found difficult to manage. The agriculture and research organisation, however, gave an example of how someone who developed a mental illness had been retained:

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“An individual developed a mental illness that reduced his ability to function in the job. He was retained and supported through ongoing problems. But when he developed a personality disorder, the medication affected his reaction time and ability to drive larger vehicles. So he was both a risk to himself and to other people if he drove those vehicles. He was assessed by the occupational physician and moved into an area that did not involve driving. Recently after a second episode, his hours have been reduced and made more flexible. As he improves the hours are gradually being increased.”

In the national charity, an example was provided of making adjustments to enable the employee to continue working in a changed environment:

“An employee undertaking printing work, who is blind, was moving from an enclosed work space onto the ‘printing floor’, a large and busy work area populated with printing machinery. Risk assessment was carried out first, by the organisation, and second by an independent consultant. The adjustments made were to enable the individual to continue to work safely in an industrial environment. They included additional railings around the workstation and orientation training for the individual.”

An example of considerable effort being put into overcoming health and safety difficulties for a driver with epilepsy is described in the box below.

The experience of one public sector organisation

· “The health and safety executive guidance notes on driving fork lift trucks would say poorly controlled epilepsy would prevent you driving a fork lift truck, but we’ve managed to employ a driver with severe uncontrolled epilepsy to drive a fork lift truck, by redesigning the truck, changing the lay out of the depot, by changing the fail safes, by retraining and redesigning the workplace and adding new harnesses to the truck.

· This individual was employed with his condition. At the time of which his epilepsy became uncontrolled he was already employed and we explored redeploying him and he was offered alternative employment as the initial response, but he was dissatisfied with that and asked the organisation to try harder with that.

· We could probably have legitimately said it was justifiable to not make that level of adjustment in that case but there are some cases where it is important for us as an organisation to work out solutions and what is possible.

· The fork lift truck situation was a good example of how the filter system works. The line manager as part of the risk assessment identified that this individual needed some further adjustments and assessments so there was a referral to the occupational health unit to start with, and the initial advice was this person has poorly controlled epilepsy and it is inadvisable for them to be driving a fork lift truck as they didn’t meet the best practice guidelines that were in place at that time.

· The line manager then went to look at redeployment options, but the individual with their union said they didn’t want this to be explored. The union were asking us to do more and that is when the disability strategy group – a cross-business working group with all the various stakeholders, equal opps, disability specialists, occupational health, the legal advisers - did a brainstorm of what more could be done. We then went back to the manufacturers of the truck to discuss further modifications. The occupational health people went to work with the line manager in the depot to look at what could be done to redesign the work process within the depot itself, delineating the working area, making adjustments so the truck couldn’t cross into other working areas if there was a problem.

· The HR dept worked with the line manager with training and information for other workers in the depot, with the individuals consent. T the legal people were monitoring the process all the time.

· The line manager signed off the money for the adjustments. He would have been given strong advice that this would be a reasonable course of action to be taken and if the line manager had not had the budget available then we would look for the budget elsewhere.

· In an organisation as big as ours, we’ll have extremes. And the fork lift truck case has cost us a lot of money, but has also taught us a lot that we can apply to fork lift truck drivers elsewhere. £10,000 is not a lot against the cost of that case going to court, because by the time we’ve gone through all the costs of defending our practice you can spend a lot of money.”

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6 HEALTH AND SAFETY AS AN ‘EXCUSE’

During the case study interviews, attempts were made to solicit views on whether health and safety reasons were often cited as an excuse for not employing or retaining a disabled person. Although examples were provided of not recruiting someone because their disability or ill­health constituted a health and safety risk, it appeared that the employers concerned had gone through a process of conducting risk assessments and OH advice.

A few of the employers were asked directly if they thought health and safety was ever used as an excuse in their organisation. However, this line of questioning proved fruitless, as no one was prepared to say that this had happened in their own organisation. It was tantamount to admitting that they had contravened the DDA legislation. What some of them did say, however, was that there was sometimes an unfounded perception of risk on the part of the line managers, and that this reflected that their lack of knowledge about certain conditions. This in turn is seen as contributing to the reluctance of some employees to disclose that they have any disability or ill-health condition.

One occupational health advisor in a private sector organisation said that “There is the potential for using health and safety as a false excuse not to employ someone, because sometimes line managers are afraid to employ someone with a disability. I work with line managers who want 110% of a person. If they do not have any medical knowledge they are not sure how to treat them. It is a problem of perception rather than an actual problem.”

The informant in a large public sector organisation stressed the importance of addressing perceptions about disability: “I think communication is the most important part of the process, it underpins everything we get right and everything we get wrong. We need to address some of the false beliefs out there, that employing someone with a disability will cost more money and they won’t be as effective.”

The manager in the FE College also highlighted the importance of raising awareness amongst its managers: “One of the key lessons we have learned is the importance of the language we use. We have stopped our managers talking about sending people for ‘medicals’ – a medical sends the wrong message. An “occupational health assessment” relates to the job and assessment implies continuation of employment.”

7 THE DDA AND HEALTH AND SAFETY LEGISLATION

All the case study respondents were asked whether they perceived any conflict between health and safety requirements and their duty to comply with the DDA. Opinions were divided.

The respondent in the local authority considered that there is a conflict:

“The DDA is flawed, as there are paragraphs stating that health and safety is more important than the DDA – do not put people’s health and safety at risk to comply with the DDA. The Health and Safety at Work Act does take precedence over other legislation. It opens a door to allow people to discriminate against people, using health and safety as a false excuse, and that it lawful. Outside of the workplace this is used as an excuse to stop people accessing goods and services – ‘we’d like to let you in, but you are a risk to health and safety’”.

So too did the human resources manager in an asset management company:

“The DDA has made life more difficult for employers. It may allow some individuals to ‘play the system’ – i.e. try and get an advantage when they are not ill. The law is not clear enough on the issue of stress. Medically it is not illness, but it may be covered by the DDA. In the case of the IT team leader [cited earlier] the DDA meant that the company was taking a risk in not

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employing him, a risk which did not exist before the DDA but it was the right decision to take. The DDA and the health and safety legislation is slightly contradictory and you have to deal with issues on a case by case basis.”

In contrast, the informant in a manufacturing organisation did not perceive any conflict:

“The health and safety side is about having appropriate procedures and making sure risk assessments are carried out to be confident that we are not going to put people in situations of undue risk. The DDA is also trying to achieve that, while also putting a positive spin on making sure that we do not sell people short. One has to be fair to the individual whilst also having a duty of care to make sure we look after that individual and the rest of his or her colleagues. It seems to me they are two sides of the same coin. I have not found a conflict between the two.”

CONCLUSIONS

Recruitment policies and practices were found to differ considerably as did the notion of what constituted good practice with respect to application forms and when health questionnaires were sent out.

All the organisations conducted risk assessments and several examples were provided of assessments which had resulted in decisions not to appoint someone with a disability or ill health condition.

Some of the case study organisations had undertaken a wide range of adjustments to retain employees who became disabled or developed an ill-health condition.

None of the case studies admitted to using health and safety requirements as a “false excuse”. However, they were aware that there was a potential for this to happen.

Opinions differed over whether there was a conflict between the requirements of complying with the DDA and with the health and safety legislation.

In discussions with the case study informants, it became apparent that the vast majority of examples of overcoming health and safety difficulties were in fact examples of making adjustments to workstations or working arrangements. Very few appeared to concern safety issues where the person, other employees or the public could be at risk in terms of health and safety.

Some employers were clearer than others about specific health and safety issues and many of these examples concerned jobs involving driving, or manual jobs in chemical processes or other hazardous environments. But in other cases generalised concerns were voiced which did not appear to be specifically related to health and safety. The informant in one financial services organisation, suggested that it would be hard for a wheelchair user to work as a financial consultant because of the problems of frequently getting in and out of the car when visiting clients.

The fact that employers were not always clear about what constituted a health and safety risk was also affected by their access to information and advice. Some of the case study employers had sought detailed guidance from OH professionals about how a specific impairment might affect a person’s ability to do a particular job. Others had turned to the HSE for guidance and the Disability Employment Advisers for information on adjustments.

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CHAPTER 9 INDIVIDUAL CASE HISTORIES

SUMMARY

To date, 16 interviews have been conducted with disabled people who feel that their employment has been affected by health and safety considerations made by potential or an existing employer. The topic guide is in Appendix 7.

Case histories were obtained using the following means: contact with disability organisations, trade unions and law centres, and with the help of other people with research other related professional interests who are known to the research team.

Case histories have been particularly difficult to obtain for two reasons: they are generally not known to relevant organisations; and where they are, individuals are either difficult to contact or are reluctant to agree to be interviewed.

Every effort was made to interview a nationally representative group of informants in terms of gender, age, type of disability, occupational group and region. Although difficulty in obtaining individual case histories meant that the research team interviewed all individuals nominated by referring organisations. As a result, apart from one interview conducted in south Wales, all interviews were carried out in England.

Additionally, the research team were unable to locate subjects from the group aged 30 or under.

Main findings 1. Only a minority of people interviewed had any experience of a potential employer raising

health and safety concerns relating to their disability when they applied for a job.

2. However, most suspected that on at least one occasion an employer had rejected their application because they were considered to be a safety risk without health and safety explicitly being mentioned.

3. Three informants had direct experience of health and safety barriers being given as a reason for their rejection.

4. In general, Informants who said employers had raised concerns about their disability potentially being in conflict with health and safety rules when applying for a particular position, reported that the perceived risk was to them and was less likely to be to fellow workers, customers or members of the public.

5. None of our informants who provided examples of instances where health and safety rules impacted on job application was aware of any risk assessment being undertaken with respect to their employment.

6. Eight informants provided examples of instances where employers expressed concerns regarding their disability and their ability to work safety. In two of these cases the individual was subject to overtly detrimental treatment. All eight informants who have confronted health and safety difficulties at work say they have been treated unfairly.

7. Case histories highlight the following examples of where health and safety rules have impacted on the careers of disabled people:

· a man with epilepsy who was demoted for health and safety reasons;

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· a woman who uses a wheelchair who felt disadvantaged by the application of uniform fire evacuation procedures across the organisation;

· three individuals who say their employer failed to remove health and safety barriers therefore exacerbating the work-related effect of their disabilities;

· a blind PA who was told her special equipment affected the health and safety of other staff; · an office manager with a hip injury who was dismissed because her return to work would be

a danger to safety; and · a paramedic with a back injury whose employer refused to allow him to return to work or

make reasonable adjustments.

Additionally, a small number of informants expressed the following concerns:

· the increased pace of work adversely affects the health and safety of employees with sensory impairment;

· employers believing that health and safety regulations automatically over ride disability discrimination legislation; and

· employer fear of litigation relating to health and safety will damage the general employment prospects of disabled people.

LOCATING INDIVIDUALS FOR CASE HISTORIES

Individual case histories are an integral feature of the research.

Early in the research programme it was decided to approach a number of organisations andrequest their help in identifying individuals for case histories.

A limited number of case histories were identified through employer surveys.

· Approaches were made to the following organisations:· all major UK disability charities; · trade unions; · law centres; and · local disability groups.

A letter explained that the aim of the project is to investigate to what extent concerns abouthealth and safety requirements are affecting the recruitment and retention of people with adisability, ill-health condition or injury in different types of employment.

Furthermore, it was made clear that the research involved a number of employer surveys andcase studies and that we wished to conduct confidential interviews with disabled people who feel that their job prospects have been affected by health and safety considerations made by potential or existing employers.

The correspondence sent to organisations emphasised that health and safety can cover a widerange of activities in the workplace and for the purposes of our research, health and safety issueswill not necessarily have led to an individual not receiving a job or being dismissed. And thatwe would like be informed of number of scenarios and outcomes.

Regrettably, very few organisations were able to help. A few replied to our request withoutprompting. Overall, help was received from three national disability charities, the Law CentresFederation, individual law centres and personal contacts. A number of disability organisationsput time and effort into assisting the research project. Unfortunately, many could either notidentify relevant cases, or when they did, they had difficulty contacting the individualconcerned, or the individual was unwilling to participate in an interview.

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Similarly, a number of law centres contacted the research team with relevant cases but were unable to obtain an individual’s consent to be interviewed.

3 METHODOLOGY

A schedule was devised for conducting semi-structured interviews with disabled people (see Appendix 6). The schedule, designed for a 30-40 minute interview was intended to solicit detailed information from each informant including:

· personal details, including age range, disability and educational attainment and receipt of job training;

· occupation and current employment situation; · experiences of making job applications where an employer has raised health and safety

concerns relating to their disability and any steps the employer took to remove a potential risk; and

· experiences during employment where an employer has raised health and safety concerns relating to their disability and any steps the employer took to remove a potential risk.

Informants were assured that interviews were confidential and that their names and the names of their employers or employers they applied for work with will not be published.

4 NUMBER OF INTERVIEWS CARRIED OUT

Sixteen interviews were carried out with disabled people (a further four are possible).

Information volunteered during the interviews has been analysed, and can be categorised as follows:

· individual experiences of applying for a job where an employer may have expressed health and safety concerns about the applicant:

· instances where health and safety rules have been used a reason for an individual not obtaining one or more jobs;

· individual experiences where am employer may have expressed health and safety concerns about the employee;

· instances where health and safety rules have been used as a reason for dismissal; · instances where health and safety rules have resulted in detrimental treatment of an

individual, for example demotion; and · individual concerns regarding the impact of health and safety rules on the current and future

employment of disabled people.

5 PROFILE OF INTERVIEW SUBJECTS

Every effort was made to interview a nationally representative group of informants in terms of gender, age, type of disability, occupational group and region (Table 1).

A wide range of both occupations and disabilities are represented in the group of interviewees. Although the difficulty in obtaining individual case histories, outlined in 3 above, was that the research team was required to interviewed all individuals nominated by referring organisations. As a result, apart from one interview conducted in south Wales, all interviews were carried out in England.

Additionally, the research team were unable to locate subjects from the group aged 30 or under.

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6

Table 1 Profile of interview subjects No. Gender Occupation Age Disability

1 Male Technical writer 31-40 Epilepsy

2 Female Financial services supervisor 31-40 Spina Bifida

3 Male Supervisor machine operator 41-50 Mental illness

4 Female Training officer 51-60 Blind

5 Male Call centre operator 41-50 Mental illness and neck injury

6 Female PA 31-40 Blind

7 Male Secretary/administrator 41-50 Sight and hearing impairment

8 Female Senior office manager 51-60 Diabetes and hip injury

9 Female Recording studio technician 41-40 Spinal injury

10 Female Health visitor 51-60 Diabetes

11 Female University lecturer 51-60 Sight impairment

12 Male Paramedic 31-40 Spinal injury

13 Female HR assistant 31-40 Spinal injury

14 Male Trainee solicitor 31-40 Sight impairment

15 Male Housing manager 31-40 Arthritis

16 Male Teacher 41-50 Sight impairment

* n = the total number of respondents.

APPLYING FOR WORK

Only a minority of people interviewed had any experience of a potential employer raising health and safety concerns relating to their disability when they applied for a job.

The majority of informants had been working for the same employer for the past five years but many could relate earlier instances where safety issues had been raised.

A woman with a spinal injury and using a wheelchair expressed a view typical of those interviewed:

“In the early years I applied for jobs and was often rejected. I remember one employer saying I would be a fire risk.”

Most suspected that on at least one occasion an employer had rejected their application because they were considered to be a safety risk. Essentially, the difficulty informants had in answering this question is that in general, job applicants are rarely given a reason for rejection.

Almost all our informants made some comment on what they see as the dilemma inherent in declaring a disability when making a job application. Four informants said they would automatically inform a potential employer of their disability prior to interview. Others are less confident and felt that declaring a disability may result in them not being invited to interview.

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Typical experiences expressed by three informants are as follows:

“Mostly I would get the standard rejection letter, so you never really know if it is your disability that goes against you.” (woman with mobility impairment)

“When I left college and applied for jobs and did not get any interviews. As soon as I stopped declaring I was blind I started being invited for interview.” (woman with sight impairment)

“It has always been at the back of my mind that my disability is an issue for employers. I was always being asked questions like, how do you manage to get around?” (man with sight impairment)

Three informants had direct experience of health and safety barriers being given as a reason for their rejection.

A blind training officer, formerly a secretary, describes her experiences:

“One employer came right out with it, saying that although I was the best qualified applicant he could not accept the responsibility of employing me. Others were more covert and asked questions about how I would cope, expecting that I would admit to not coping.”

“On one occasion I applied for a job as a secretary to a senior manager. The manager I was going to work for was very wary of employing me. He was concerned about my safety when travelling to and from work. Once the situation was explained to him, he employed me and things worked out very well.”

“Some very funny things can happen at job interviews. People often can’t imagine how I would manage stairs, despite the fact I had walked up stairs to attend the interview. Often, their concerns were because they wanted me to do all sorts of other jobs apart from the one I was being interviewed for, like make tea and do shopping.”

A woman who was made redundant after sustaining a hip injury recounted her experience of having her job application rejected:

“I applied for a job for which I was well qualified, and initially the employer was very interested in my application. He interviewed me on the telephone. I told him that I was using a wheelchair but I was likely to make a full recovery following surgery. He said he would not be able to employ me because my office would be on the first floor. He was very reasonable and suggested I contact him again once I had made a full recovery.”

One informant, an experienced health visitor, described her experience of being rejected for a position on health and safety, and other grounds, once the employer learned she had diabetes.

She said that at the final stage of the selection process, and once she had been made an officer of employment which was subject to satisfactory references, the employer learned that she had recently experienced a hypoglycemic attack.

The stated reasons for the employer’s decision not to employ her was that she might experience a hypoglycemic attack in a client’s home or in the street while at work. It was suggested to her that if she had an attack in someone’s home, then she may fail in her duty to be aware of circumstances relating to child protection.

The informant pointed out that in her experience, attacks are rare, and when they do occur, she receives physical warnings that an attack is likely to happen and is able to withdraw from work

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situations in order to take appropriate action and avoid losing consciousness.

She also pointed out that her potential employer suggested that she may become aggressive when having an attack, although there is no evidence that on the small number of occasions when she had experienced a hypoglycemic attack, she has ever been aggressive.

Nature of risk In general, Informants who said employers had raised concerns about their disability potentially being in conflict with health and safety rules when applying for a particular position, reported that the perceived risk was to them and was less likely to be to fellow workers, customers or members of the public.

An blind informant who worked as a PA reported:

“They purported to worry about me. That I might fall down the stains and sue them. But what amazes me about these people is that when you are on their premises they treat you like a piece of china. But once they have decided that you are a safety risk, they will quite happily wave you off down the busiest road in town. How they think you cope then, but can’t at work, absolutely baffles me.”

None of our informants who provided examples of instances where health and safety rules impacted on job application was aware of any risk assessment being undertaken with respect to their employment. Similarly, none reported employers taking any steps or making adjustments to overcome perceived health and safety difficulties.

7 EXPERIENCES DURING EMPLOYMENT

Eight informants provided examples of instances where employers expressed concerns regarding their disability and their ability to work safety. In three of these cases the individual was subject to overtly detrimental treatment. All eight informants who have confronted health and safety difficulties at work say they have been treated unfairly.

7.1 Demotion for health and safety reasons

A technical writer with epilepsy described how he was re-deployed at a reduced salary because his employer decided that was unable to work safely as a production operator working shifts.

“I had an aura followed by a seizure while at work. I was not a risk to anybody. I took sick leave following this and on my return to work the occupational health physician said I could no longer work alone; at unprotected heights; next to moving machinery or work the nightshift.”

“When my condition improved, the company maintained these restrictions, which means I have re-deployed and penalised financially by not being able to work nights.”

“The company re-deployed me against the advice of my GP and neurologist, who argued that it was better for me to get back to normal duties as soon as possible. My neurologist was of the opinion that there was no reason why I could not do the same basic tasks as everyone else with a few minor adjustments.”

In this case, as in all other case histories where employers consider there is a health and safety risk inherent in a disabled person doing a particular job, the perceived risk is to the individual.

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7.2 Effects of across-the-board policies

An informant with mobility impairment, working for a large multinational company, gave an example of an instance when she felt uncomfortable when fire evacuation procedures for staff using wheelchairs were made uniform across all sites.

“In the event of fire colleagues were happy to carry me down stairs in my wheelchair. But then I was told that this could no longer happen for health and safety policy reasons. Instead I was to use a fire evacuation chair which I feel is unsuitable and potentially more dangerous.”

“I said that the fire chair was not suitable for me because transferring from wheelchair to fire chair could damage my spine. The response was that it was the only chair available and was the type used at head office – a one size fits all approach.”

“I moved to another job in the company and eventually the five evacuation procedures were changed on the advice of the fire service and in consultation with me. Two safe havens have been made. Additionally, electronic doors have been fitted that are both security and fire doors, which are quick-release in the event of a fire.”

7.3 Failure to remove health and safety barriers Three informants describe how their employers failed to take steps to remove hazards which impacted on their health and safety.

A call centre operator with long-term impairment cased by neck injury describes how a number of employers failed to adhere to his request for adjustments which resulted in his resignation.

“I worked in a number of jobs where I have been physically uncomfortable because of my height, back and neck problems. On these occasions, I was never fully aware of what could be done for me. So I tended to make do, which I realise now caused me further problems. In my last job I requested a special chair, but was told that my current chair was adequate. They did raise my desk, but there was no suggestion that my workstation could be altered in any way.”

An office manager who has asthma describes a similar experience.

“There was a photocopier in the office and it was really affecting my breathing. I told the boss and he said there was plenty of ventilation in the office and refused to move it. I got the health and safety inspector in and she got him to move it into another room.”

A recording studio technician with a spinal injury described an experience where she felt the employer had not gone far enough in removing a health and safety barrier affecting her employment.

“I could not gain access to the studio as the doors needed adapted. The doors are dangerous for someone with my condition, but my employer said it would be too expensive to made them easier to open.”

“I pointed out all along that I was struggling and it was hurting me. They did not pay any attention at all until they received a report from an ergonomist engaged through the local Disability Services Team.

7.4 Safety of other employees A PA, who is blind, described how her presence was though to be detrimental to the health and safety of other employees.

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“On one occasion I was told by a supervisor that I could not work with her team because I took up too much room and talking computer and Braille machine would disturb other staff.”

7.5 Dismissal Two informants provided examples of where health and safety rules had resulted in dismissal.

An office manager with a hip injury describes her experience:

“I broke my hip and while I was recovering in hospital I became very concerned that the junior covering my job could not cope. A week after coming out of hospital I rang my employer and said that although I was using a wheelchair I could come into work for tow days a week to help out. Quite to my surprise I was told by the personnel manager that I would be a fire risk and my coming into work would represent a risk to myself and everybody else. I could have accessed the building without difficulty and worked in a back office on the ground floor.”

“The personnel manger told me this without taking advice from anybody. He said there would be difficulty with the company’s insurers if I returned to work in a wheelchair. I rang the insurance company and they assured me that it would not be a problem.”

“Soon after my initial injury I was told that I needed a complete hip replacement and I was likely to be off work for a further three months. I rang the company immediately to inform them of my situation. Shortly afterwards, I received a letter from the company saying that they would make no undertaking to allow me back to work until a proper risk assessment had been carrier out. On the day the risk assessment was supposed to be carried out I received a letter to say that due to my prolonged absence (it had been less than two months) the employer had made arrangements for my work to be carried out by other staff and I was made redundant.”

A paramedic with a spinal injury, and claiming constructive dismissal, described his experience.

“I went on sick with a back injury and my employer refused to provide rehabilitative or redeployment duties. I was told repeatedly by the personnel manger that I could not work safety. My doctor believed I could work safety so the impression was that they were using my disability as a health and safety reason for getting rid of me. They said I would sustain other injuries if I returned to work. I had the back condition for a number of years but health and safety issues were only raised in last six months of my employment.”

“I feel that I was treated very unfairly. They (the employer) were saying the occupational health reports were not in-depth enough to give them the information they needed to return me to a safe working environment.”

7.6 Risk assessments undertaken In general informants were either unaware that their jobs had been subject to risk assessment or said that no risk assessment had taken place.

A supervisor machine operator with a mental health condition says his employer conducts risk assessments for all shop floor jobs but not for supervisors. The individual describes how he is experiencing considerable work related stress which would be apparent to his employer if his job was subject to risk assessment.

The issue was resolved when the individual discussed his health problems with managers and it was mutually agreed that he should transfer from his supervisor’s job to become a machine operator.

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7.7 Health and safety concerns A small number of informants voiced concerns in three areas. Firstly, how the increased intensity of work impacts on the health and safety of people with sensory impairment, particularly sight impairment. Secondly how employers perceive that the Health and Safety at Work Act automatically overrides the Disability Discrimination without considering their duty to make reasonable adjustments to remove safety barriers. And thirdly, how the increased pace of change of health and safety regulation and general activity over recent years is impacting on the employment prospects of disabled people.

A university lecturer with sight impairment described her concerns regarding the health, safety and wellbeing of people with sight impairment who undertake demanding jobs.

“Employers will generally provide physical support for visually impaired staff. But quite often you also need manual support. People tend to think in terms of wheelchair access but not about the needs of people with sensory impairment.”

“If you work in high powered job you need to achieve an acceptable level of output. No allowances are made and I have no flexibility in my system whatsoever. For someone with a sight impairment, working flat-out and working long hours gives rise to physical and psychological strains that will inevitably impact on health and safety. The implications are that late in the day an employer discovers that they have an employee who has been reduced from an extremely competent employee to one who is suffering from physical and psychological stress.”

A visually impaired trainee solicitor described how at his induction training he was told that adherence to health and safety legislation and rules had complete priority over disability discrimination legislation.

A visually impaired teacher expressed concerns that health and safety regulation will lead to a deterioration in the employment prospects of visually impaired teachers.

“I am concerned about the increased culture of litigation and risk assessment and its impact on the employment of people with visual impairment. I taught in the mainstream for many years and was never treated as a special case. I was involved in many extra curricular activities such as school trips abroad etc.”

“Now, schools are far more averse to risk than they used to be. This constant attention to risk will is already hindering the employment of disabled teachers in schools. It is a particular problem in science teaching, which is seen as hazardous.”

“It used to be acceptable for visually impaired people to teach a wide range of subjects including science. But now you get the impression that if something goes wrong the blame will be put on the school for employing a disabled teacher.”

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CHAPTER 10: CONCLUSIONS

1 INTRODUCTION

The five surveys reported in the preceding chapters investigate to what extent concerns about health and safety requirements are affecting the recruitment and retention of people with a disability, ill-health conditions or injury. A review of the findings point to differences in the policies, practices and concerns of organisations of different sizes and from different sectors, but also in the views of particular groups, namely health and safety and OH practitioners, HR managers and safety representatives.

This analysis draws on the data from five surveys:

· A telephone survey of 501 small- and medium-sized organisations (less than 250 employees).

· A postal survey returned by 153 employers with 250 or more employees · A postal survey returned by 67 occupational health practitioners (OH practitioners). · A postal survey returned by 85 health and safety practitioners (H&S practitioners). · A postal survey returned by 581 health and safety representatives (safety representatives).

The majority of employers participating in the telephone survey worked for small organisations (63% were employed by organisations with fewer than 50 staff). In addition to the survey of large employers, large firms dominated the three postal surveys: 84% of respondents to the OH practitioner survey, 61% of respondents to the H&S practitioner survey and 59% of respondents to the safety representatives’ survey worked for organisations with at least 500 staff.

These differences in organisational size are reflected in the level of OH provision among respondents to each survey, with 55% and 59% of respondents to the H&S practitioner survey and safety representatives’ survey, respectively, having an occupational health department compared with only 16% of SMEs in the telephone survey.

Public sector organisations dominated the OH practitioner and safety representatives’ survey, while the majority of H&S practitioners worked in the private sector (see table 1).

Table 1 Proportion of private and public sector respondents % Public sector % Private sector

OH practitioners 67 31

Health and Safety practitioners 38 61

Safety Representatives 61 37

Large employers 45 52

* n = the total number of respondents.

RECRUITMENT

Across the surveys, 90% of large employers, 78% of health and safety practitioners, 73% of OH practitioners and 54% of small and medium sized organisations (SMEs) say that their organisations ask job applicants if they have a disability, ill-health condition or injury.

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2

This question is more commonly asked by larger employers. While 39% of respondents in firms with 5–14 staff said that they asked job applicants to disclose a disability, injury or ill-health condition, compared with 65% of respondents in firms with 100–249 employees. Among the three sectors best represented within the SME survey – manufacturing, wholesale/retail/ hospitality and health/education etc – this question was more commonly asked in manufacturing (48%) than in wholesale/retail/hospitality (38%) or health/education etc (39%).

Within the SME survey, larger firms (60% of those with 100–249 staff) are also more likely than smaller organisations (45% of those with 5–14 staff) to ask potential employees whether or not they have a disability prior to making a job offer.

Within the H&S practitioner survey, this question is more commonly asked by private sector employers (52% do so) compared with the public sector (23% do so). However, it must be noted that 61% of H&S practitioners surveyed were not involved in the recruitment process

Where recruitment agencies are used, a high proportion of respondents do not know what the agency’s policy is. For example, of the 94 respondents in the SME survey who used recruitment agencies, 50% said they did not know whether the agency asked job applicants if they have a disability, ill-health condition or injury. Over a third (35%) of health and safety practitioners whose employers used agencies also did not know whether the agency asked applicants about disabilities or ill-health conditions. Among the larger employers, 30% did not know what the agencies’ policies were.

3 HEALTH SCREENING

The respondents in the practitioner surveys were most likely to be in organisations where health screening was carried out. The proportion among OH practitioners was 91% and among health and safety practitioners was 86%, compared with 72% of large employers and 30% of SMEs. Of the large employers, 77% said that they operated health screening as part of the recruitment process.

Again within the SME survey, larger firms (49% of those with 100–249 staff) are much more likely than smaller organisations (13% of those with 5–14 staff) to operate health screening as part of the recruitment process.

4 RISK ASSESSMENTS

The majority of organisations review risk assessments of the work environment of new employees, but the proportion is highest amongst large employers and health and safety practitioners. Almost nine out of 10 large employers (89%), eight out of 10 health and safety practitioners (81%), 69% of respondents in SMEs and 58% of OH practitioners and health and safety representatives say that their organisations review risk assessments taking into account new employees.

Again within the SME survey, larger firms (49% of those with 100–249 staff) are much more likely than smaller organisations (13% of those with 5–14 staff) to operate health screening as part of the recruitment process.

Within the safety representatives’ survey, there are no significant differences between the private and public sectors in the proportion of respondents saying that their organisations review risk assessments taking new employees into account (60% v 56%) or that their organisations’ risk assessments include an assessment of the impact of disability, ill-health conditions and injuries (44% v 49%).

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Table 2 Risk assessment

OH H&S Safety Large practitioners practitioners representatives employers

My organisation reviews risk 61% 86% 58% 89 assessments taking into account all new employees

My organisation reviews risk 66% 75% 43% 98 assessments taking into account existing employees who become disabled or ill

Risk assessments include n/a 81% 49% 79 assessment of the impact of disabilities

There is evidence in some of the surveys that risk assessments have precluded employment of people with particular disabilities, ill-health conditions or injuries. More than a quarter (29%) of health and safety practitioners said this had happened, as did 20% of large employers and 12% of safety representatives.

5 DISABILITY POLICY

Larger employers are also more likely to have a policy for the employment of disabled people than smaller organisations. Overall, 73% of large employers, 74% of health and safety practitioners, 66% of OH practitioners, and 45% of SMEs say that their organisation has a policy regarding the employment of disabled people. Over half (57%) the safety representatives say their employer has a policy but nearly a quarter (23%) do not know whether or not there is a policy. Of those with a policy, however, 87% of health and safety practitioners, 65% of large employers, 84% of SMEs, 75% of OH practitioners, and 44% of safety representatives say that the policy takes account both of disabled people and of those with ill-health conditions and injuries.

Within the SME survey, larger firms (66% of those with 100–249 staff) are also more likely than smaller organisations (28% of those with 5–14 staff) to have a disability policy. Sectoral differences are also evident in the SME survey, with considerably higher proportions in the public sector having a policy than in the private sector: 80% of respondents in public administration/defence and 65% in health/education said their organisations had a disability policy, compared with 46% in retail/hospitality and 34% in manufacturing.

Not all policies refer to health and safety. Among OH practitioners and H&S practitioners whose organisations had a policy, 61% and 59% respectively referred to health and safety.

The safety representatives’ survey is large enough to examine sectoral differences, revealing that in public administration, disability policies are almost twice as common as in the manufacturing sector. Only 38% of safety representatives in manufacturing said that their employer had a disability policy, compared with 67% in ‘health, social work and education’ and 72% in public administration. This reflects the significant higher proportion of public sector organisations with a disability policy (68%) compared with the private sector (41% of which have disability policies).

6 OVERCOMING BARRIERS TO RECRUITMENT

A large majority of respondents to the OH practitioner, H&S practitioner and safety representatives’ survey say that their organisations employ disabled people (96%, 94% and

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76%, respectively), compared with only a third (32%) of SMEs in the telephone survey. Within the SME survey, there were no regional differences in the proportion of firms with disabled employees.

Organisational size and sectoral differences are evident from the safety representatives’ survey, with 81% of respondents in public sector organisations saying that they have disabled colleagues, compared with 68% in the private sector. Safety representatives working in public administration and ‘financial administration, real estate etc’ are most likely to report that their organisations employ disabled people (83% in each sector), compared with 78% in ‘health and social work, education’, and 50% in construction. The proportion of safety representatives saying that their employer employs some disabled people declines with size of firm: 84% for firms with more than 500 employees; 74% for those with 250–499; 66% for 100–249; 60% for 50–99; and 56% for organisations employing less than 50 people.

From the SME survey it is also clear that large firms are more likely to employ disabled people: 65% of organisations with 100–249 staff employed disabled people, compared with only 13% of organisations with 5–14 staff. Among the three sectors best represented within the SME survey – manufacturing, wholesale/retail/hospitality and health/education etc – 41% in health/education have disabled staff, compared with 30% in manufacturing and 26% in retail etc.

There is a large variation in the proportion of respondents within each survey stating that their organisation has overcome health and safety difficulties to recruit someone with a disability, injury or ill-health condition.

Of the SMEs, only 18% (n=92) of respondents said that their organisation had overcome health and safety difficulties to recruit someone with a disability, injury or ill-health condition. Twenty-nine percent of safety representatives said that their organisation had overcome health and safety difficulties to recruit someone with a disability, injury or ill-health condition (ranging from 40% in public administration to 17% in transport and communications, and 6% in mining and utilities). Nearly three-fifths of large employers had overcome such difficulties. But the highest proportion (72%)was among OH practitioners and H&S practitioners.

There was, however, close agreement between respondents to all five surveys about the adjustments that their organisations used most frequently in order to help recruit someone with a disability. Flexible working hours, time off for treatment and buying/modifying equipment were in each group’s top three.

Despite the relatively small sample size (n=92), organisational size appears to be strongly associated with the proportion of SME respondents reporting overcoming health and safety difficulties to employ someone with a disability or illness. Thirty-two respondents (29%) in organisations with 100–249 staff said their organisation had done so, compared with only 12% in organisations with 5–14 staff

In the safety representatives’ survey, large firms (≥500 staff) and public sector organisations were more likely to have made adjustments to recruit a disabled person, compared with SMEs or private sector firms.

In the safety representatives’ survey, large firms (≥500 staff) and public sector organisations were more likely to have made adjustments to recruit a disabled person, compared with SMEs or private sector firms.

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7 REFUSING EMPLOYMENT FOR HEALTH AND SAFETY REASONS

All survey groups were aware of instances where a disabled person was not offered a job due tohealth and safety reasons, ranging from 46% of OH practitioners to 11% of safetyrepresentatives (see table 3).

Table 3 Has your organisation ever decided not to offer a job to someone with a disability, ill-health condition or injury on the grounds that their condition would present

a risk in terms of health and safety?

Yes % No % Don’t Know %

OH practitioners 46 33 17 H&S practitioners 21 44 34 Safety representatives 11 14 74 SMEs 16 81 3 Large employers 20 56 22

OH practitioners, H&S practitioners, large employers and SMEs all cited musculoskeletaldisorders as the most common condition resulting in a decision not to employ on health andsafety grounds (this question was not posed in the safety representatives’ survey). Respondentsto the H&S practitioner survey, however, cited epilepsy as the second most common reason notto employ, whereas for OH practitioners and among SMEs epilepsy was a much less common concern. After musculoskeletal disorders, OH practitioners cited mental illness andmobility/dexterity as the second and third most common conditions resulting in a decision not toemploy on health and safety grounds, while mobility and sight impairment were the second andthird most common conditions cited among SMEs. Mobility or dexterity difficulties were alsothe second most common conditions cited by large organisations, followed by sight impairment,heart conditions and epilepsy.

7.1 Nature of risk Where respondents indicated that their organisation had on occasion decided not to offer a jobto someone with a disability, ill-health condition or injury on the grounds that their conditionwould present a risk in terms of health and safety, the nature of the perceived risk was explored.(This question was not asked in the telephone survey of SMEs, but introduced subsequently intothe postal surveys.)

The respondents were most likely to identify the risk as being to the disabled person (see table4).

Table 4 In cases where your organisation decided not to offer a job to someone with a disability on health and safety grounds, who was judged to be at risk?

Nature of health and safety risk OH practitioners % H&S practitioners % Large employer % Disabled person 81 94 87

Other employees 32 56 36

Members of the public 45 50 26

Asked whether any other concerns were involved in the decision, fear of litigation by the person themselves if the condition worsened was cited most often by OH practitioners and large employers, and breach of health and safety law by H&S practitioners and large employers.

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However, due to the small number of respondents involved, care must be taken in interpreting these findings.

7.2 Overcoming barriers to retention Employers are clearly more willing to overcome health and safety difficulties associated with existing employees’ conditions than those associated with recruiting disabled staff. This was evident across all surveys: 91% OH practitioners, 88% of large employers, 84% of H&S practitioners, 37% of safety representatives and 34% of SMEs reported that their organisations had overcome such difficulties in order to retain existing employees.

As in the case of recruitment, there is a strong association with organisational size. Within the SME survey, 53% of organisations with 100–249 reported overcoming health and safety difficulties to retain staff with disabilities, compared with 17% of organisations with 5–14 staff. Within the SME survey, a larger proportion of public sector organisations reported overcoming such difficulties (67% of respondents in public administration/defence and 41% of those in health/education etc) compared to the private sector (22% of respondents in retail/ hospitality).

Time off for treatment and flexible working hours were listed among the three most common adjustments cited by respondents to all surveys. Assigning the person to a different place of work was placed in the top three adjustments in the safety representatives’ survey, and allocating duties to other staff was placed in the top three adjustments among SMEs.

7.3 Dismissal on health and safety grounds Between 10% and 48% of respondents said their organisation had dismissed an employee on the grounds that their disability, health condition or injury would present a risk to health and safety. Across the surveys, 48% of occupational health practitioners, 40% of health and safety practitioners, 37% of safety repress

7.4 Nature of risk in dismissal cases In the vast majority of cases across all surveys, respondents said that the health and safety risk had been to the disabled person concerned (see table 5). SMEs had not been asked this question

Table 5 In cases where your organisation decided to dismiss someone with a disability on health and safety grounds, who was judged to be at risk.

Nature of health OH practitioners H&S practitioners Large employers Safety reps %and safety risk % % %

Disabled person 88 94 98 79

Other employees 36 50 37 30

Members of the 31 38 29 18 public

These findings on the nature of the health and safety risk in both recruitment and dismissal cases clearly have considerable significance in view of the legal issues discussed in both the literature review (Chapter 1) and the case law review (Chapter 2). They indicate the prevalence of what may be described as a paternalistic approach where employers give priority to protecting the health of safety of disabled people to the extent of denying them employment.

7.5 General health and safety concerns Between 32% and 49% of respondents said they had general concerns regarding the employment of people with disabilities, ill-health conditions and injuries. Across the surveys,

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49% of large employers, 35% of SMEs, 34% of occupational health practitioners and 32% of health and safety practitioners reported such concerns.

However, there were wide variations by type of condition and by job category in the proportion of respondents expressing health and safety concerns. For example, conditions such as impaired mobility or dexterity were more likely to give rise to concern in relation to manual jobs than managerial or professional positions. Overall, 72% of OH practitioners said they would be concerned about employing someone in a manual job with impaired mobility or dexterity, compared with 61% of large employers, 52% of SMEs, 53% of safety representatives and 66% of H&S practitioners.

Higher levels of concern were expressed about employing someone with a mental illness or learning disability in a managerial/professional rather than a manual position. For example, 46% of OH practitioners said they would be concerned about employing someone with a mental illness in a managerial post, as did 44% of large employers, 46% of SMEs, 40% of safety representatives and 39% of H&S practitioner. For technical posts, mental illness and learning disabilities were among several areas of concern. For administrative or clerical positions, the main concern was usually about employing someone with a musculoskeletal disorder.

Only a tiny minority in each survey expressed any health and safety concerns about employing men or women or particular ethnic groups. A slightly higher proportion expressed concerns about employing people whose first language is not English, because of the problems around communicating safety information. With respect to people from different age groups, the only groups eliciting any concern were people under 21 and people over 50, but the numbers expressing these concerns were again very small.

8 CONFLICT BETWEEN THE DDA AND COMPLIANCE WITH STATUTORY HEALTH AND SAFETY DUTIES

The proportion in each survey perceiving a conflict between the DDA and health and safety requirements varied between each group of respondents. Of the SMEs currently covered by the DDA – ie with 15 or more employees – 25% thought that there was a conflict. Of those organisations with fewer than 15 employees, 21% thought that there might be a conflict if they were brought within the scope of the DDA. More than a fifth of large employers (22%) thought there was a conflict. Twenty-seven percent of OH practitioners, 20% of safety representatives, but only 12% of health and safety practitioners also perceived a conflict.

Significant differences emerged in opinions on the impact of the DDA on recruitment and retention of disabled workers. Over half (54%) of OH practitioners felt that the Act has had a major or moderate impact on recruitment, and 63% felt the Act has had a major or moderate impact on retention. However, SMEs, safety representatives and H&S practitioners feel the Act has had less impact. Within the SME survey, the Act appeared to have had most impact in public administration/defence, where 43% said it had had a moderate impact.

On recruitment, 21% of SMEs, 30% of safety representatives and H&S practitioners say the Act has had a major or moderate impact, and on retention 28% of H&S practitioners and 32% of safety representatives say the Act has had a major or moderate impact on retention.

9 SOURCES OF ADVICE

Compared with respondents to the other surveys, the SMEs involved in the telephone survey were much less likely to have sought advice on health and safety issues in connection with employing disabled people. Only 26% of SMEs reported contacting Health and Safety Executive offices, compared with 45% of OH practitioners and H&S practitioners. Not

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surprisingly, trade unions were the most frequently cited sources of information for safety representatives. In all five surveys, very few respondents cited using the Disability Rights Commission helpline (ranging from 6% of SMEs and safety representatives, to 11% of H&S practitioners, 13% of OH practitioners and 16% of large organisations).

There were significant differences in the frequency of use of Disability Employment Advisers (DEAs) at local job centres. DEAs had been used by 69% of OH practitioners, 51% of large employers, 38% of H&S practitioners, 20% of SMEs and just 10% of safety representatives. Several respondents in the OH practitioners’ survey mentioned having close and productive relationships with the local DEA, but there appears to be a lower level of awareness of DEAs’ work among trade unions, H&S practitioners and SMEs.

10 CASE STUDY RESEARCH

The case study research involving both employers and individual case histories contributes to an understanding of the survey findings discussed above.

In-depth case study interviews were completed with 17 employers to provide case studies of how policy towards the employment of people with disabilities or ill health conditions is implemented in practice.

Recruitment policies and practices were found to differ considerably as did the notion of what constituted good practice with respect to application forms and health screening.

All the organisations conducted risk assessments and examples were provided of assessments which had resulted in decisions not to appoint someone.

Some of the case study organisations had undertaken a wide range of adjustments to retain employees who became disabled or developed an ill-health condition.

None of the case studies admitted to using health and safety requirements as a “false excuse”. However, they were aware that there was a potential for this to happen.

Opinions differed over whether there was a conflict between the requirements of complying with the DDA and with the health and safety legislation.

In discussions with the case study informants, it became apparent that the vast majority of examples of overcoming health and safety difficulties were in fact examples of making adjustments to workstations. Very few actually concerned safety issues where the person, other employees or the public could be at risk in terms of health and safety.

Some employers were clearer than others about specific health and safety issues and many of these examples concerned jobs involving driving, or manual jobs in chemical processes or other hazardous environments. But in other cases generalised concerns were voiced which did not appear to be specifically related to health and safety.

The fact that employers were not always clear about what constituted a health and safety risk was also affected by their access to information and advice. Some of the case study employers had sought detailed guidance from OH professionals about how a specific impairment might affect ability to do a particular job. Others had turned to the HSE for guidance and the Disability Employment Advisors for information on adjustments.

Sixteen interviews were conducted with disabled people who feel that their employment has been affected by health and safety considerations made by potential or an existing employer.

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Case histories were obtained using the following means: contact with disability organisations, trade unions and law centres, and with the help of other people with research and other related professional interests who are known to the research team

Although only a minority of people interviewed had any experience of a potential employer raising health and safety concerns relating to their disability when they applied for a job, most suspected that on at least one occasion an employer had rejected their application because they were considered to be a safety risk.

Three informants had direct experience of health and safety barriers being given as a reason for their rejection.

In general, informants who said employers had raised concerns about their disability potentially being in conflict with health and safety rules when applying for a particular position, reported that the perceived risk was to them and was less likely to be to fellow workers, customers or members of the public.

None of our informants, who provided examples of instances where health and safety rules impacted on job application, was aware of any risk assessment being undertaken with respect to their employment.

Eight informants provided examples of instances where employers expressed concerns regarding their disability and their ability to work safety. In two of these cases the individual was subject to overtly detrimental treatment. All eight informants who have confronted health and safety difficulties at work say they have been treated unfairly.

11 KEY ISSUES

Overall, the research provides evidence of organisations taking steps to overcome barriers to the recruitment or retention people with a disability, ill health condition or injury. Equally there is evidence of a substantial number of organisations who responded to the survey deciding not to recruit someone with a disability or ill health condition on the grounds of a health and safety risk. Similarly many organisations cite examples of dismissing someone on the grounds of a health and safety risk.

It is not possible for this research to determine in respect of individual cases whether or not these decisions are justified, or whether health and safety risks are simply being used as an excuse. While some survey respondents indicated that they thought health and safety was being used as an excuse, this could only be established with full knowledge of the facts.

However, what this research has highlighted is:

· Health and safety is frequently being used as the rationale for non-recruitment or dismissal of a disabled person.

· Organisations vary considerably in their recruitment procedures towards people with a disability or ill health condition and there is no consensus about at what stage applicants should be asked to disclose a disability or ill-health condition.

· There is considerably more evidence of employers overcoming health and safety difficulties to retain rather than recruit someone with a disability, ill health condition or injury.

· Impairments are not viewed or treated the same by all employers. For example, an impairment, such as epilepsy, may be viewed as a health and safety concern by some employers and not by others. Employers in particular sectors, such as manufacturing, are also more likely to express health and safety concerns about employing people with any impairment.

· There is a lack of understanding among some employers over what constitutes a health and

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safety risk. Lack of knowledge about particular conditions or disabilities can result in overly cautious assessments of the individual’s capacity to do a job.

· Some employers are more willing than others to undertake adjustments to overcome health and safety difficulties and larger organisations tend to have more access to specialist expertise, including OH practitioners and health and safety practitioners, to help them do so.

· The surveys point to a widespread tendency on the part of the responding employers to identify the health and safety risk in terms of a risk to the individual applicant or employee. This may result in what the literature and case law reviews have identified as paternalistic or excessively cautious approaches.

· Further guidance may be required to ensure that employers are clearer about the range of options and adjustments open to them to consider when faced with an applicant or employee with a disability or ill-health condition.

A significant proportion of all participants in the research expressed the view that there was a conflict between the DDA and the health and safety requirements.

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APPENDIX 1

HSE/DRC SURVEY: THE EXTENT OF USE OF HEALTH AND SAFETY REQUIREMENTS AS A FALSE EXCUSE FOR NOT EMPLOYING SICK OR DISABLED PEOPLE – TELEPHONE

QUESTIONNAIRE

Introduction

Good morning/afternoon. I am ............. calling from NOP Business, an independent research organisation. We are conducting a survey in partnership with the IRS Research on behalf of the Health and Safety Executive and the Disability Rights Commission.

We would like to speak to the most senior person here who has overall responsibility for the operation of employment practices, specifically decisions regarding both the recruitment and termination of staff.

The main aim of the survey is to find out about the operation of health and safety provisions and how they affect the recruitment of people with a disability, ill-health condition or injury.

The survey relates to what actually happens within your organisation. All information collected will be treated in the strictest confidence. We will not publish the names of organisations or individuals who participate in the survey.

The interview should take no longer than 20 minutes.

Interviewer note: stress, as necessary, that:

· survey participation is voluntary, although the HSE and the DRC are keen that we gather reliable information from a wide range of establishments, to get a comprehensive picture of how, if at all, health and safety rules are affecting disabled people. It is, therefore, important that as many organisations as possible take part, and that the information we obtain is accurate.

· organisations have been randomly chosen from an electronic business database; · we would be happy to call back at a more convenient time to conduct the interview; · no information about individuals or organisations will be identified in the results of the

survey, or passed to any government department, the media or any other body. · if the respondent wishes reassurance about the legitimacy of the survey they can contact Bal

Sahota at the HSE on 020 7717 6249, or June Manson on 020 7717 6229

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Question A Company/respondent details A2 Where is your main site located?

CODE TOWN AND COUNTY

And is this in England, Wales or Scotland

A1 What is your job title?

A3 Do you operate on more than one site?

1. yes

2. no

A4 Can I confirm the main product or service of your organisation is;

1. Agriculture and forestry

2. Extractive industries

3. Utility supply

4. Wholesale or retail trade and repairs, hotels and restaurants

5. Manufacturing

6. Construction

7. Transport, storage and communication

8. Financial administration, real estate, renting and business activities

9. Public administration and defence

10. Health and social work, education, other community, social and personal service activities

IF NO CHOOSE SIC FROM LIST

A5 How many people are employed within your organisation?

1. under 5

2. 5-14

3. 15-49

4. 50-99

5. 100-249

A6 Can you tell me the percentage of full-time and part-time employees you employ?

1. full-time

2. part-time

A7 Can you tell me the percentage of men and how many women you employ?

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1. men nos.

2. women nos.

A8 I am going to ask about the categories of jobs within your organisation and the numbers of people employed in each.

1. managers and professionals nos.

3. technical occupations eg technicians, computer programmers nos.

4. administrative and secretarial occupations nos.

5. skilled trades occupations

(eg. skilled roles in metal working, construction,

textiles and food preparation) nos.

6. personal service occupations eg hairdressers, caretakers, domestic staff nos.

7. sales and customer services occupations nos.

8. process, plant and machine operators nos.

9. elementary occupations (unskilled)

(eg. assembly workers, labourers and drivers) nos.

A9 Are there formal arrangements for seeking the views of employees and encouraging their participation from any of the following?

1. recognised trade unions

2. works councils

3. consultative committees

4. workplace representatives

5. safety representatives

yes 1

no 2

don’t know 3

Question B Staff turnover B1 How many employees have you recruited in last three years?

number don’t know

B2 How many staff have left the organisation in the last three years?

number don’t know

Question C Recruitment and selection

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C1 Do you normally advertise job vacancies?

Yes

No

3. don’t know

C2 How are vacancies advertised? – press

job centre

recruitment agency

internet

word of mouth

other (please specify)

C3 At the initial job application stage do you ask applicants to state if they have a disability, ill-health condition or injury?

1. yes

2. no

3. don’t know

C4 If you use a recruitment agency, does the agency ask job applicants if they have a disability, health condition or injury?

1. yes

2. no

3. don’t know

C5 The next section covers your normal selection methods, the process by which you would normally assess an applicant’s suitability for employment within your organisation.

Do you use any of the following recruitment methods

1. job application forms

2. CVs

3. occupational tests

4. telephone interviews

5. face-to-face interviews

yes 1

no 2

Don’t know V

C6 Prior to making an offer of employment, do you normally ask the potential employee if they have a disability, ill-health condition or injury?

1. yes

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2. no

3. don’t know

C7 Do you operate health screening as part of the recruitment process?

1. yes

2. no

3. don’t know

Question D Employment policies D1 Do you have a manager who is in charge of personnel matters?

1. yes

2. no

3. don’t know

D2 Do you have a manager who is in overall charge of health and safety?

1. yes

2. no

3. don’t know

D3 IF YES TO D2

Is the person in charge of health and safety a safety specialist?

1. yes

2. no

3. don’t know

D4 Do you have an occupational health department?

1. yes

2. no

3. don’t know

D5 Do you purchase an occupational health service from an external provider?

1. yes

2. no

3. don’t know

D6 Do you use the services of an occupational health physician?

1. yes

2. no

3. don’t know

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D7 Do you use the services of any other doctors?

1. yes

2. no

3. don’t know

D8 Do you use the services of an occupational nurse?

1. yes

2. no

3. don’t know

D9 Do you use the services of any other nurse (eg. a non-occupational health nurse)?

1. yes

2. no

3. don’t know

D10 Do you conduct health and safety risk assessments of new employees?

1. yes

2. no

3. don’t know

D11 Do you conduct health and safety risk assessments of new employees with disabilities, ill-health conditions or injuries?

1. yes

2. no

3. don’t know

D12 Do you revisit your health and safety risk assessments in relation to:

1. new employees yes/no/don’t know

2. new employees with disabilities, ill-health conditions of injuries

3. existing employees who develop, or return to work with a disability, ill-health condition or injury

yes 1

no 2

don’t know 3

D13 Have you made any changes to health and safety arrangements to help you to recruit someone with a disability, ill-health condition or injury?

1. yes

2. no

3. don’t know

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D14 Have you made any changes to health and safety arrangements to help you to keep on someone with a disability, long-term health condition or injury?

1. yes

2. no

3. don’t know

D15 Do you have a disability policy?

1. yes

2. no

3. don’t know

D16 Does the policy take account of both disabled people and those with ill-health conditions or injuries?

1. yes

2. no

3. don’t know

D17 Does the policy make any reference to health and safety?

1. yes

2. no

3. don’t know

Question E Employment of sick or disabled people E1 Do you employ any disabled people?

1. yes

how many

2. no

3. don’t know

E2 The Disability Discrimination Act 1995 defines disability as: a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. This definition will include people with long­term impairments or health problems, lasting a year or more, which have a substantial impact on their ability to undertake normal day-to-day activities. This might include epilepsy, arthritis, diabetes, learning difficulties, as well as more commonly­identified disabilities — like mobility impairments, sensory impairments etc.).

Now, using this broad definition of disability, would you say that you employ

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1. more disabled people?

2. the same number?

as in the answer you gave to the previous question?

3. If more, what is your revised estimate?

E3 Has your organisation ever overcome any health and safety difficulties that were associated with recruiting a member of staff with a disability, ill-health condition or injury?

1. yes

2. no

don’t know

IF NO OR DK GO TO E6

E4 If yes, were any adjustments necessary?

1. yes

2. no

3. don’t know

E5 If yes, were any of the following adjustments made?

1. adjustments to premises

2. allocating some of the person's

duties to another person

3. transferring the person to fill an existing vacancy

4. altering the person's working hours

5. assigning the person to a different place of work

6. allowing the person to be absent during working

hours for rehabilitation, assessment or treatment

7. giving the person, or arranging for him or her to be given, training

8. acquiring or modifying equipment

9. modifying instructions or reference manuals

10. modifying procedures for testing or assessment

11. providing a reader or interpreter

12. providing supervision

13. other (please specify)

yes 1

no 2

Don’t know V

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E6 Deleted

E7 I am going to read you a list of disabilities and health conditions. Has your organisation ever decided not to offer a job to someone with one or more of the following disabilities or ill-health condition on the grounds that their condition would present a risk in terms of health and safety?

1. mobility or dexterity difficulties

2. hearing impairment

3. diabetes

4. chest conditions

5. musculoskeletal conditions (eg. back pain,

neck pain and wrist pain)

6. epilepsy

7. other neurological conditions

(eg. MS and Parkinson’s Disease)

8. sight

9. heart condition

10. mental illness

11. stomach/liver conditions

12. HIV/AIDS

13. skin conditions

14. learning disabilities

15. dyslexia

16. other (please specify)

yes 1

no 2

don’t know 3

IF YES TO ANY GO TO E9

E8 Deleted

E9 Overall, do you think that any of the following factors have helped in recruiting the individual concerned?

1. expert advice

2. financial help

3 help from managers

4. help from co-workers

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5 help from the individual concerned

6. other help (please specify)

yes 1

no 2

don’t know V

E10 Moving on to your existing employees, has your organisation ever overcome any health and safety difficulties that were associated with an existing employee’s disability, ill-health condition or injury?

1. yes

2. no

3. don’t know

E11 If yes, were any adjustments necessary?

1. yes

2. no

3. don’t know

IF NO OR DK GO TO E13

E12 Were any of the following adjustments made?

1. adjustments to premises

2. allocating some of the person's duties to another person

3. transferring the person to fill an existing vacancy

4. altering the person's working hours

5. assigning the person to a different place of work

6. allowing the person to be absent during working hours for

rehabilitation, assessment or treatment

7. giving the person, or arranging for him to be given, training

8. acquiring or modifying equipment

9. modifying instructions or reference manuals

10. modifying procedures for testing or assessment

11. providing a reader or interpreter

12. providing supervision

13. other (please specify)

yes 1

no 2

Don’t know V

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E13 Deleted

E14 I am going to read you a list of disabilities and health conditions. Has your organisation ever dismissed someone (including the provision of early retirement) with the following disabilities or ill-health condition on the grounds that their condition would present a risk in terms of health and safety?

1. mobility or dexterity

2. hearing impairment

3. diabetes

4. chest conditions

5. musculoskeletal conditions (eg. back pain,

neck pain and wrist pain)

6. epilepsy

7. other neurological conditions

(eg. MS and Parkinson’s Disease)

8. sight

9. heart condition

10. mental illness

11. stomach/liver conditions

12. HIV/AIDS

13. skin conditions

14. learning disabilities

15. dyslexia

16. other (please specify)

yes 1

no 2

don’t know 3

E15 Deleted

NEW Who decided that someone with a disability, ill-health condition or injury was unfit for employment on the grounds that their condition presented a risk in terms of health and safety?

An occupational physician

Another doctor

An occupational health nurse

A health and safety advisor

A personnel officer

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The chief executive/managing director

The management team

Other (specify)

E16 Overall, do you think that any of the following factors helped in avoiding the dismissal?

1. expert advice

2. financial help

3 help from managers

4. help from co-workers

5 help from the individual concerned

6. other help (please specify)

yes 1

no 2

Don’t know V

Question F Health and safety concerns F1 Do you have general health and safety concerns regarding the employment of people

with disabilities or ill-health conditions or injuries?

1. yes

2. no

3. don’t know

F2 In terms of health and safety, I am going to ask you if you have any concerns about employing people with certain disabilities and health conditions in certain types of jobs within your organisation. ALL ONE MULTICODE LIST

F2a Firstly, in terms of health and safety, would you have concerns about employing a person with impaired mobility or dexterity in a :

1. management or professional position yes/no/don’t know

2. a technical position yes/no/don’t know

F2b 3. an administrative/clerical position yes/no/don’t know

4. or to undertake manual work yes/no/don’t know

Again, in terms of health and safety, would you have concerns about employing a person with a hearing impairment in a:

F2c 1. management or professional position yes/no/don’t know

2. a technical position yes/no/don’t know

3. an administrative/clerical position yes/no/don’t know

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F2d 4. or to undertake manual work yes/no/don’t know

Again, in terms of health and safety, would you have concerns about employing a person with diabetes in a:

1. management or professional position yes/no/don’t know F2e

2. a technical position yes/no/don’t know

3. an administrative/clerical position yes/no/don’t know

4. or to undertake manual work yes/no/don’t know

Again, in terms of health and safety, would you have concerns about employing a F2f person with a chest condition in a;

1. management or professional position yes/no/don’t know

2. a technical position yes/no/don’t know F2g 3. an administrative/clerical position yes/no/don’t know

4. or to undertake manual work yes/no/don’t know

In terms of health and safety, would you have concerns about employing a person with a musculoskeletal disorder (eg. back pain, neck pain and wrist pain), in a:

1. management or professional position yes/no/don’t know F2h 2. a technical position yes/no/don’t know

3. an administrative/clerical position yes/no/don’t know

4. or to undertake manual work yes/no/don’t know F2I In terms of health and safety, would you have concerns about employing a person with epilepsy, in a:

1. management or professional position yes/no/don’t know F2j

2. a technical position yes/no/don’t know

3. an administrative/clerical position yes/no/don’t know

4. or to undertake manual work yes/no/don’t know F2k

In terms of health and safety, would you have concerns about employing a person with other neurological conditions

(eg. MS and Parkinson’s Disease), in a:

1. management or professional position yes/no/don’t know

F2l 2. a technical position yes/no/don’t know

3. an administrative/clerical position yes/no/don’t know

4. or to undertake manual work yes/no/don’t know

F2m In terms of health and safety, would you have concerns about employing a person with a sight impairment in a:

1. management or professional position yes/no/don’t know

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F2n 2. a technical position yes/no/don’t know

3. an administrative/clerical position yes/no/don’t know

4. or to undertake manual work yes/no/don’t know

F2o In terms of health and safety, would you have concerns about employing a person with a heart condition in a:

1. management or professional position yes/no/don’t know

2. a technical position yes/no/don’t know F2p

3. an administrative/clerical position yes/no/don’t know

4. or to undertake manual work yes/no/don’t know

In terms of health and safety, would you have concerns about employing a person with mental illness in a:

1. management or professional position yes/no/don’t know

2. a technical position yes/no/don’t know

3. an administrative/clerical position yes/no/don’t know

4. or to undertake manual work yes/no/don’t know

In terms of health and safety, would you have concerns about employing a person with a stomach or liver condition in a:

1. management or professional position yes/no/don’t know

2. a technical position yes/no/don’t know

3. an administrative/clerical position yes/no/don’t know

4. or to undertake manual work yes/no/don’t know

In terms of health and safety, would you have concerns about employing a person with HIV/AIDS in a:

1. management or professional position yes/no/don’t know

2. a technical position yes/no/don’t know

3. an administrative/clerical position yes/no/don’t know

4. or to undertake manual work yes/no/don’t know

In terms of health and safety, would you have concerns about employing a person with a skin condition in a:

1. management or professional position yes/no/don’t know

2. a technical position yes/no/don’t know

3. an administrative/clerical position yes/no/don’t know

4. or to undertake manual work yes/no/don’t know

In terms of health and safety, would you have concerns about employing a person with a learning disability in a:

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1. management or professional position yes/no/don’t know

2. a technical position yes/no/don’t know

3. an administrative/clerical position yes/no/don’t know

4. or to undertake manual work yes/no/don’t know

In terms of health and safety, would you have concerns about employing a person with dyslexia in a:

1. management or professional position yes/no/don’t know

2. a technical position yes/no/don’t know

3. an administrative/clerical position yes/no/don’t know

4. or to undertake manual work yes/no/don’t know

In terms of health and safety, would you have concerns about employing a person with any another disability, health

condition or injury (please specify disability and position) in a:

1. management or professional position yes/no/don’t know

2. a technical position yes/no/don’t know

3. administrative/clerical position yes/no/don’t know

4. or to undertake manual work yes/no/don’t know

F3 Do you have any particular health and safety concerns regarding people with disabilities, ill-health conditions or injuries from the groups?

1. men

2. women

yes 1

no 2

don’t know 3

IF YES ASK NATURE OF CONCERN

3. people under 21

4. people aged between 21 and 40

5. people aged between 40 and 50

6. people aged over 50

yes 1

no 2

don’t know 3

IF YES ASK NATURE OF CONCERN

7. white people

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8. Caribbean or African people

9. Asian people

10. Chinese people

11. other ethnic groups please specify

yes 1

no 2

don’t know 3

IF YES ASK NATURE OF CONCERN

Question G Statutory obligations G1 I am now going to ask you about your awareness of the Health and Safety at Work

Act 1974. Prior to this interview would you say that you were

1. very aware,

2. fairly aware,

3. not very aware,

4. not at all aware; of the Act’s provisions?

G2 Do you know if your organisation is covered by the employment provisions of the Disability Discrimination Act 1995?

1. yes

2. no

3. don’t know

G3 Can I ask you again how many people you employ?

Under 5 (if yes go directly to G8)

5-14 (if yes go directly to G8)

15-49 (if yes ask questions G4-G7)

50-99 (if yes ask questions G4-G7)

100-249 (if yes ask questions G4-G7)

G4 I am now going to ask you about your awareness of the Disability Discrimination Act 1995.

The employment provisions of the Act currently apply to organisations who employ 15 or more staff. The DDA prohibits employment discrimination against disabled people, unless it can be justified, and places a duty on employers to make reasonable adjustments to employ and retain people with a disability, long-term health condition or injury.

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Prior to this interview would you say that you were

1. very aware,

2. fairly aware,

3. not very aware,

4. not at all aware; of the Act’s provisions?

G5 Under the Disability Discrimination Act 1995 (DDA), employers have a duty not to treat disabled people less favourably than others, unless there are substantial material reasons that cannot be overcome by what the Act refers to as a reasonable adjustment.

I am now going to ask you about your awareness of the duty the Act places on employers to consider, and if necessary make a reasonable adjustment in order to accommodate a sick or disabled employee.

Prior to this interview would you say that you were

1. very aware,

2. fairly aware,

3. not very aware,

4. not at all aware; of the duty of reasonable adjustment?

G6 Do you feel there is any conflict between the operation of the Disability Discrimination Act and compliance with statutory health and safety regulations?

1. Yes

2. No

3. Don’t know

G7 What impact do you feel the Disability Discrimination Act and health and safety legislation has had on your organisation in terms of the recruitment of people with disabilities, ill-health conditions or injuries?

1. major impact

2. moderate impact

3. minor impact

4. none

G8 Only to be asked if organisation has less than 15 employees.

The Disability Discrimination prohibits unjustifiable employment discrimination on the basis of disability, and places a duty on employers to make reasonable adjustments in order to employ and retain individual disabled people. The Act currently applies to organisations employing 15 or more staff. However, the Government has announced that it intends to reduce, or even abolish the threshold altogether.

If your organisation were brought within the scope of the Disability Discrimination Act, do you feel there may be any conflict between the operation of the Disability Discrimination Act and compliance with statutory health and safety regulations?

142

1. Yes

2. No

3. Don’t know

Question H Obtaining help and advice H1 Has your organisation sought/used external advice, information, support about health

and safety issues relating to the employment of people with disabilities, long-term ill health conditions or injuries?

1. yes

2. no

3. don’t know

H2 Has your organisation sought/used advice, information, support about health and safety issues relating to the employment of people with disabilities, ill-health conditions or injuries from any of the following?

1. HSE offices

2. HSE InfoLine

HSE publications

local authority inspectors

non-statutory sources

other organisations (please specify)

Disability Employment Advisors at a local Job Centre

the Disability Rights Commission helpline

disability organisations

H3 Deleted

H4 Deleted

H5 Deleted

H6 Deleted

Question I Thanks and request for further assistance with research I1 To conclude, I would like to thank you very much for participating in the study.

IRS Research will shortly be conducting further research amongst some of the respondents taking part in this survey. Would you be willing to be re-contacted in the future to discuss some of these issues in more detail? All the information concerned

143

will be confidential.

1. yes

2. No

If yes, confirm contact details and request email address).

144

APPENDIX 2

A SURVEY OF EMPLOYERS

HEALTH & SAFETY EXECUTIVE AND

DISABILITY RIGHTS COMMISSION

RESEARCH ON DISABILITY AND ILL-HEALTH AT WORK:

Dear Colleague IRS Research is conducting a research project on behalf of the Health and Safety Executive and the Disability Rights Commission. The aim of the project is to investigate to what extent concerns about health and safety requirements are affecting the recruitment and retention of people with a disability, ill-health condition or injury in different types of employment. As part of this research we are seeking the views of human resource/personnel managers of large UK organisations. We should be most grateful if you would complete this questionnaire and return it in the freepost envelope or send it to the freepost address at the end of the questionnaire, by FRIDAY, 20 SEPTEMBER 2002. All responses will be treated in the strictest confidence and we will not publish the names of organisations or individuals who participate in the survey. In the meantime, if you have any queries about the survey, please contact Jennifer Hurstfield on 020 7354 6794 or Michael Thewlis on 020 7354 6795. If you have any queries about the research project, please contact at the HSE either June Manson on 020 7717 6229 or Bal Sahota on 020 7717 6249. We will notify all survey participants as soon as the research findings become available, probably early next year. Yours sincerely

Jennifer Hurstfield Research Manager, IRS Research

YOUR DETAILS

Your name ......................................................…… Job title …………….……...........……….........… Main responsibilities ..........................................………………...………………..…...............................…. Organisation .....................................................………………...………………..…...............................…. Address .....................................................………………...………………..…...............................….

.....................................................………………...………… .... Post code …………..….. Tel. number .....................................................…… (Please note, we will only contact you if we have difficulty understanding some of your answers)

1. PLEASE DESCRIBE THE MAIN PRODUCT OR SERVICE OF YOUR ORGANISATION ………….…………………………..

….……………………………………………………………………………………………………………… ……...

1

3

1

2 Private sector 4

2

Public sector2. In which sector is your organisation based? NHS Voluntary sector

Independent Part of a UK group of companies 3. If your organisation is in the private sector, is it

145

Part of an international group of companies 3

IN WHICH TOWN/CITY IS YOUR ORGANISATION BASED? (PLEASE STATE IF YOUR ORGANISATION HAS MULTIPLE SITES)

………………………………………………………………………………………………………………… ……... 4. How many employees does your organisation employ in each of the following categories?

(full-time equivalents)Directly Full-time (full-time equivalents)Independent contract workers Part-time (full-time equivalents)Employed by an agency Men (full-time equivalents)

Women (full-time equivalents)

WHICH AREA OF THE ORGANISATION WILL YOUR RESPONSES IN THIS SURVEY APPLY TO?

2

Entire organisation Other, eg. head office, region, area etc. (please state)

…….……………...……………………………

1

DOES YOUR ORGANISATION HAVE ANY OF THE FOLLOWING FORMAL ARRANGEMENTS FOR EMPLOYEE CONSULTATION AND PARTICIPATION ON HEALTH AND SAFETY MATTERS THROUGH? PLEASE TICK ALL THAT APPLY

2

3

4

5

6

Safety reps appointed under the Safety Representatives and Safety Committees Regulations 1977 Safety committees under the Safety Representatives and Safety Committees Regulations 1977 Representatives of employee safety appointed under the Health and Safety (Consultation with Employees) Regulations 1996 Directly with employees under the Health and Safety (Consultation with Employees) Regulations 1996 A works council Other (please state) ……………………………………………..…....………..………..………..………..……...

1

RECRUITMENT AND SELECTION 5. At the initial job application stage, does your organisation ask applicants to state if they have a

disability, ill-heath condition or injury? 1 2 3Yes No Don’t know

6. If you use a recruitment agency, does the agency ask job applicants if they have a disability, ill-health condition or injury? 1 2 3Yes No Don’t

know

7. Prior to making an offer of employment, does your organisation ask the potential employee if they have a disability, ill-health condition or injury? 1 2 3Yes No Don’t

know

8. Does your organisation operate health screening as part of the recruitment process? No, go to Q15

2

3 Don’t know, go to Q15 1 Yes, go to Q12

1

2

All job applicants Selected applicants9. Whom do you screen?

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10. How do you do your health screening? 1 Questionnaire/health declaration 2 Medical examination

11. Who “vets” the answers or declaration (please specify) …………...………………………………..……. ………….………….………….………….………….………….………….………….………….……… ….……… ………….………….………….………….………….………….………….………….………….……… ….……… ………….………….………….………….………….………….………….………….………….……… ….………

EMPLOYMENT POLICIES 12. What is the job title of the person in charge of managing health and safety in your organisation?

Please write in ……………..…….…….…….…….…….…….…….…….…….…….…….…….…..………….

1 2 3Yes No Don’t know

13. Is the person in charge of health and safety IOSH qualified?

1 2Yes No14. Does your organisation have an occupational health department?

15. Does your organisation purchase an occupational health service from an external provider? 1 2 3Yes No Don’t

know

1 Yes No16. Does your organisation use the services of an occupational health physician?

17. If YES, what qualifications does the person hold? …………..……..……..……..……..……..…………..

………..………..………..………..………..………..………..………..………..………..………..………..… ……..…

1 Yes No18. Does your organisation use the services of any other doctors?

1 Yes No19. Does your organisation use the services of an occupational health nurse?

20. If YES, what qualifications does the person hold? …….…...…….…….…….…….…….…….…….…...

……………….……….……….……….……….……….……….……….……….……….……….……….… ……..

21. Does your organisation use the services of any other nurse? (eg. a non-occupational health nurse) 1 2 3Yes No Don’t

know

22. Does your organisation review health and safety risk assessments taking into account new employees? 1 2 3Yes No Don’t

know

23. Do risk assessments include an assessment of the impact of disability, ill health conditions and injuries? 1 2 3Yes No Don’t

know

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2

2

2

24. Who reviews the risk assessments? (Please state their job titles) …….…….…….…….…….……… ………….……………………………………………………………………………………………………… …….

25. Who has managerial responsibility for the risk assessments? (Please state their job titles) ………….……………………………………………………………………………………………………… …….

DOES YOUR ORGANISATION REVIEW YOUR HEALTH AND SAFETY RISK ASSESSMENTS TAKING INTO ACCOUNT:

Yes No All employees Employees with disabilities, ill-health conditions or injuries Existing employees who return to work with a disability, ill-health condition or

injury

1 2

1 2

1 2

26. Have risk assessments ever precluded employment of people with particular disabilities, ill-health conditions or injuries? 1 2 3Yes No Don’t

know

27. If YES, please provide one or more examples ….….….….….….….….….….….….….….….….….……. ……………………………………………………………………………………………………………… ………... ……………………………………………………………………………………………………………… ………...

28. Do you have a disability policy – either stand-alone or as part of a diversity policy? 1 2Yes No 3 Don’t

know

29. Does the policy take account both of disabled people and those with ill-health conditions or injuries? 1 2 3Yes No Don’t

know

1 2Yes No30. Does the policy make any reference to health and safety?

└►If YES, please attach a copy

3 Don’t know

31. If you do not have a specific disability policy, do you have policies relating to employee ill-health and/or injury? 1 2 3Yes No Don’t

know

STAFF RECRUITMENT

THE DISABILITY DISCRIMINATION ACT 1995 DEFINES DISABILITY AS: “A PHYSICAL OR MENTAL IMPAIRMENT WHICH HAS A SUBSTANTIAL AND LONG-TERM ADVERSE EFFECT ON HIS ABILITY TO CARRY OUT NORMAL DAY-TO-DAY ACTIVITIES”. THIS MIGHT INCLUDE EPILEPSY, ARTHRITIS, DIABETES, LEARNING DIFFICULTIES, AS WELL AS MORE COMMONLY IDENTIFIED DISABILITIES, SUCH AS MOBILITY IMPAIRMENTS, SENSORY IMPAIRMENTS ETC.

32. Using this broad definition of disability, does your organisations employ any disabled people? 2 3Yes No Don’t1

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know

33. If YES, approximately how many does it employ? Please write number in here

Don’t know

34. Has your organisation ever overcome any health and safety difficulties associated with recruiting a member of staff with a disability, ill health condition or injury? 1 2 3Yes No

35. If YES, how many times in the last three years has this happened? Please write number in here

1 2 3Yes No Don’t know

36. If YES, were any adjustments necessary?

IF YES, WERE ANY OF THE FOLLOWING ADJUSTMENTS MADE? (TICK ALL THAT APPLY)

1

2

3

4

5

6

7

8

9

10

For purposes of access and egress (eg. ramping) 11 Acquiring or modifying equipment or workstation Other adjustments to premises Modifying instructions or reference manuals Transferring the person to fill an existing vacancy Modifying procedures for testing or assessment Altering the person’s working hours Providing a reader or interpreter Assigning the person to a different place of work Providing supervision

12

13

14

15

Help with transport Allocating some of the person’s duties to another person Allowing the person to be absent during working hours for rehabilitation, assessment or treatment Giving the person, or arranging for him/her to be given, training Modifying the workplace, eg, adjusting temperature, lighting, humidity etc Others (please specify) ………………………………..………………………………………………………

37. Has your organisation ever decided not to offer a job to someone with a disability, ill health condition or injury on the grounds that their condition would present a risk in terms of health

and safety? 1 2 3Yes No Don’t know

38. If YES, how many times in the last three years has this happened? Please write number in here

IF YES, IN THE MOST RECENT CASE, WHO TOOK THE DECISION THAT THE INDIVIDUAL SHOULD BE CONSIDERED UNFIT FOR EMPLOYMENT ON HEALTH AND SAFETY GROUNDS? (TICK ALL THAT APPLY)

1 5 An occupational physician A personnel officer 2 6Another doctor Your chief executive/managing director 3 7 An occupational health nurse The management team 4 A health and safety advisor

Other (please specify)…………….…………….…………….…………….…………….……………………

39. Was the risk to the health and safety of 1 The disabled 2 Other employees 3 Members of the (Tick all that apply) person public Other (please specify) …………….…………….…………….…………….…………….……………………

WERE ANY OTHER CONCERNS INVOLVED IN THE DECISION? (TICK ALL THAT APPLY)

Breach of health & safety law Additional pension liabilities 5

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1

2 Payment of ill-health benefits 6 Potential inflation of insurance premiums if the risk transpired 3 Fear of litigation from third parties who might be harmed by the employment of the disabled person 4 Fear of litigation from the person themselves if their condition deteriorated due to the risk or if they

were injured 5 Breach of statutory requirement for job (please specify) ………………………………………………………..

Other (please specify) …………….…………….…………….…………….…………….……………………

HAS YOUR ORGANISATION EVER DECIDED NOT TO OFFER A JOB TO SOMEONE WITH ONE OR MORE OF THE FOLLOWING DISABILITIES OR ILL-HEALTH CONDITIONS ON THE GROUNDS THAT THEIR CONDITION WOULD PRESENT A RISK IN TERMS OF HEALTH AND SAFETY? (TICK ALL THAT APPLY)

1

2

3

4

5

6

7

8

9

10 Mobility or dexterity Mental illness 11 Hearing impairment Stomach/liver conditions 12 Diabetes HIV/AIDS 13Chest conditions Skin conditions 14 Epilepsy Learning disabilities 15 Sight impairment Dyslexia

Heart condition Musculosketal conditions (eg. back pain, neck pain or wrist pain) Other neurological conditions (eg. MS, or Parkinson’s Disease)

Others (please specify) …………….…………….…………….…………….…………….……………………

40. Please briefly outline one particular case …..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..….. ……. …..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..….. ……. …..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..….. ……. …..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..….. …….

41. Looking back to recent cases, could anything more have been done to allow recruitment of the individual(s) concerned? 1 2 3Yes No Don’t

know

WOULD ANY OF THE FOLLOWING FACTORS HAVE HELPED IN RECRUITING THE INDIVIDUAL(S)CONCERNED?

(TICK ALL THAT APPLY)

1 Expert advice 2 Help from co-workers 3 Financial help 4 Help from the individual concern5 Help from managers 6 More information about disability legislation 7 More information about how adjustments could be made

Others (please

ed

…...……….…………….…………….…………….…………….…………………… specify)

150

STAFF RETENTION

42. Has your organisation ever overcome any health and safety difficulties that were associated with existing employees’ disabilities, ill-health conditions or injuries? 1 2Yes No

43. If YES, how many times in the last three years has this happened? Please write number in here

1 2 3Yes No Don’t know

44. If YES, were any adjustments necessary?

IF YES, WERE ANY OF THE FOLLOWING ADJUSTMENTS MADE? (TICK ALL THAT APPLY)

1

2

3

4

5

6

7

8

9

10

For purposes of access and egress (eg. ramping) 11 Acquiring or modifying equipment or workstation Other adjustments to premises 12 Modifying instructions or reference manuals Transferring the person to fill an existing vacancy 13 Modifying procedures for testing or assessment Altering the person’s working hours 14 Providing a reader or interpreter Assigning the person to a different place of work 15 Providing supervision Help with transport Allocating some of the person’s duties to another person Allowing the person to be absent during working hours for rehabilitation, assessment or treatment Giving the person, or arranging for him/her to be given, training Modifying the workplace, eg. adjusting temperature, lighting, humidity etc

Others (please specify) ………………………………..………………………………………………………

45. Has your organisation ever dismissed some (including the provision of early retirement) with a disability, ill-health condition or injury on the grounds that their condition would present a risk in terms of health and safety? 1 2 3Yes No Don’t

know

46. If YES, how many times in the last three years has this happened? Please write number in here

47. If YES, in the most recent case, who decided that someone with a disability, ill-health condition or injury should be considered unfit for employment on the grounds that their condition presented a risk in terms of health and safety? (Tick all that apply) 1 5 An occupational physician A health and safety advisor 2 6Another doctor A personnel officer 3 7 An occupational health nurse Your chief executive/managing director 4 8 Person in charge of health and safety The management team

Others (please specify) ………………………………………………………………………………………..

48. Was the risk to the health and safety of 1 The disabled 2 Other employees 3 Members of the (Tick all that apply) person public Other (please specify) …………….…………….…………….…………….…………….…………………….

WERE ANY OTHER CONCERNS INVOLVED IN THE DECISION? (TICK ALL THAT APPLY)

Breach of health & safety law Additional pension liabilities 1 5

Payment of ill-health benefits Potential inflation of insurance premiums if the risk transpired 2 6

Fear of litigation from third parties who might be harmed by the employment of the disabled person 3

151

5

4 Fear of litigation from the person themselves if their condition deteriorated due to the risk or if they were injured Breach of statutory requirement for job (please specify) ……………………………………………………….. Other (please specify) …………….…………….…………….…………….…………….……………………

HAS YOUR ORGANISATION EVER DISMISSED SOMEONE (INCLUDING THE PROVISION OF EARLY RETIREMENT) WITH ANY OF THE FOLLOWING DISABILITIES OR ILL-HEALTH CONDITIONS ON THE GROUNDS THAT THEIR CONDITION WOULD PRESENT A RISK IN TERMS OF HEALTH AND SAFETY? (TICK ALL THAT APPLY)

1

2

3

4

5

6

7

8

9

Mobility or dexterity Hearing impairment Diabetes Chest conditions Epilepsy Sight impairment

10

11

12

13

14

15

Mental illness Stomach/liver conditions HIV/AIDS Skin conditions Learning disabilities

Dyslexia Heart condition Musculoskeletal conditions (eg. back pain, neck pain, or wrist pain) Other neurological conditions (eg. MS, or Parkinson’s Disease)

Others (please specify) ………………………………………………………………………………………..

49. Please briefly outline one particular case ………….………….………….………….………….………….. …..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..……. …..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…..…….

50. Looking back to the most recent case, could anything more have been done to retain the individual(s) concerned? 1 2 3Yes No Don’t

know

WOULD ANY OF THE FOLLOWING FACTORS HAVE HELPED IN RETAINING THE INDIVIDUAL(S) CONCERNED? (TICK ALL THAT APPLY)

Expert advice Help from co-workers 1 2

Financial help Help from the individual concerned 3 4

Help from managers More information about disability legislation 5 6

More information about how adjustments could be made

Others (please specify)…...……….…………….…………….…………….…………….……………………

7

HEALTH AND SAFETY CONCERNS 51. Do you have general health and safety concerns regarding the employment of people with

disabilities, ill-health conditions or injuries? 1 2 3Yes No Don’t know

In terms of health and safety, would your organisation have any concerns about employing a person with one of the following listed conditions? Please tick YES or NO to indicate whether you would have any concerns employing someone in each of the following occupations: Managerial/professional, Technical, Administrative/clerical, Manual.

Managerial/ Technical Administrative/ Manual professional position clerical position position position

152

▼ ▼ ▼ ▼

52. Impaired mobility or dexterity YES NO YES NO YES NO YES NO

53. A hearing impairment YES NO YES NO YES NO YES NO

54. A sight impairment YES NO YES NO YES NO YES NO

55. Diabetes YES NO YES NO YES NO YES NO

56. A chest condition YES NO YES NO YES NO YES NO

57. A musculoskeletal disorder YES NO YES NO YES NO YES NO (eg. back, neck, or wrist pain)

58. Epilepsy YES NO YES NO YES NO YES NO

59. Other neurological conditions YES NO YES NO YES NO YES NO (eg. MS or Parkinson’s Disease)

60. A heart condition YES NO YES NO YES NO YES NO

61. Mental illness YES NO YES NO YES NO YES NO

62. A stomach or liver condition YES NO YES NO YES NO YES NO

63. HIV/AIDS YES NO YES NO YES NO YES NO

64. A skin condition YES NO YES NO YES NO YES NO

65. A learning disability YES NO YES NO YES NO YES NO

66. Dyslexia YES NO YES NO YES NO YES NO

Other (specify) YES NO YES NO YES NO YES NO

…….…..…..……....…..…..

Other (specify) YES NO YES NO YES NO YES NO

…….…..…..……....…..…..

67. Does your organisation have any particular health and safety concerns regarding people with disabilities, ill-health conditions or injuries from the following groups? Yes N Yes N

o o Men People whose first language is not English 1 2

Women White people 1 2

People aged under 21 Caribbean or African people 1 2

People aged between 21 and 40 Asian people 1 2

People aged between 41 and 50 Chinese people 1 2

People aged over 50

1 2

1 2

1 2

1 2

1 2

1 2

68. If any of the above-named groups of people do raise health and safety concerns, please explain the nature of your organisation’s concern.

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..…

STATUTORY OBLIGATIONS What impact do you feel the Disability Discrimination Act 1995 has had on the following:

153

Major Moderate Minor None Don’t know

ê ê ê ê ê

69. Your organisation in terms of the recruitment of people with disabilities, ill-health conditions or injuries?

70. Your organisation in terms of the retention of people with disabilities, ill-health conditions or injuries?

1 2 3 4 5

1 2 3 4 5

71. Do you feel there is any conflict between the operation of the Disability Discrimination Act 1995 and compliance with statutory health and safety duties? 1 2 3Yes No Don’t

72. If YES, please explain the nature of the conflict.

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..…

OBTAINING HELP AND ADVICE

HAS YOUR ORGANISATION SOUGHT/USED ADVICE, INFORMATION, SUPPORT ABOUT HEALTH AND SAFETY ISSUES RELATING TO THE EMPLOYMENT OF PEOPLE WITH DISABILITIES, ILL-HEALTH CONDITIONS OR INJURIES FROM ANY OF THE FOLLOWING?

1

2

3

4

5

6

HSE offices 7 Disability Employment Advisors at a local Job Centre HSE InfoLine Disability Rights Commission helpline Local authority inspectors Disability organisations Trade unions Professional organisations Confederation of British Industry Other employer organisations Charities Lawyers

8

9

10

11

12

Others (please specify) ……………………………………………………………………………………………………

73. Finally, are you aware of any example within your organisation in which exceptional efforts have been made either to retain or to recruit an individual with long-term ill health or a disability? As part of the project, we are collecting examples of good practice from organisations. If you would like to give an example of your organisation’s good practice, please write brief details below ……….……….……….……….……….……….……….……….……….……….……….……….……….……… ……….……….……….……….……….……….……….……….……….……….……….……….……….……… ……….……….……….……….……….……….……….……….……….……….……….……….……….……… ……….……….……….……….……….……….……….……….……….……….……….……….……….……… ……….……….……….……….……….……….……….……….……….……….……….……….……….………

Thank you for participating in the study IRS Research will conducting further confidential research among some of the respondents taking part in this survey. If you would be willing to be re-contacted in the future to discuss some of these issues in more detail, please tick this box

Please return your questionnaire in the FREEPOST envelope provided, or mail to IRS Research, FREEPOST, 18-20 Highbury Place, London N5 1BR

154

A ppe nix 3

APPENDIX 3

HSE & DRC RESEARCH ON DISABILITY AND ILL HEALTH AT WORK: OCCUPATIONAL HEALTH PRACTITIONERS’ SURVEY

Dear ColleagueIRS Research is conducting a research project on behalf of the Health and Safety Executive and theDisability Rights Commission. The aim of the project is to investigate to what extent concerns about healthand safety requirements are affecting the recruitment and retention of people with a disability, ill-health condition or injury in different types of employment. As part of this research we are seeking the views of occupational health practitioners. We should be most grateful if you would complete this questionnaire and return it in the freepost envelopeor send it to the freepost address at the end of the questionnaire, by FRIDAY, 5 July 2002. All responses will be treated in the strictest confidence. We will not publish the names of organisations or individuals who participate in the survey.In the meantime, if you have any queries about the survey, please contact Jennifer Hurstfield on 020 73546794 or Michael Thewlis on 020 7354 6795. If you have any queries about the research project, pleasecontact at the HSE either June Manson on 020 7717 6229 or Bal Sahota on 020 7717 6249. We will notify all survey participants as soon as the research findings become available, probably early nextyear.Yours sincerely

Jennifer Hurstfield Research Manager, IRS Research

YOUR DETAILS

Your name ......................................................…… Job title …………….……...........……….........… Organisation .....................................................………………...………………..…...............................…. Address .....................................................………………...………… ..........................................…..

.....................................................………………...……. Post code …………………….. Tel. number .....................................................…… (Please note, we will only contact you if we have difficulty understanding some of your answers)

74. PLEASE DESCRIBE THE MAIN PRODUCT OR SERVICE OF YOUR ORGANISATION ………….…………………………..

….……………………………………………………………………………………………………………… ……...

75. In which sector is your organisation based? 1 Private sector 2 Public sector 3 NHS 4 Voluntary sector

176. If your organisation is in the private sector, is it Independent 2 Part of a UK group of companies 3 Part of an international group of companies

IN WHICH TOWN/CITY IS YOUR ORGANISATION BASED? (PLEASE STATE IF YOUR ORGANISATION HAS MULTIPLE SITES)

………………………………………………………………………………………………………………… ……... 77. Approximately how many people are employed in your organisation?

155

3

WHICH AREA OF THE ORGANISATION WILL YOUR RESPONSES IN THIS SURVEY APPLY TO?

Entire organisation Other, eg. head office, region, area etc. (please state) …….…...………...……………………………

OCCUPATIONAL HEALTH PROVISION AT YOUR ORGANISATION

Please note. If your organisation is an occupational health provider contracting with a number of organisations, please answer all the questions in relation to your major clients and NOT your organisation.

1 2 Occupational health nurse Occupational health doctor 78. Please indicate your job title/role Other (please specify) ………………………………..………………………………………………………

1 2 A contracted OH provider to this organisation An employee of this organisation 79. Are you

1 2Yes No80. Do you have a formal qualification in occupational health? If YES, please specify

…………………………………………………..……………………..……………….… ………………………………………………………………………………………………………………… ………

1 2Yes No81. Are you the sole occupational health practitioner at this organisation?

If NO, How many other occupational health practitioners are there in addition to yourself? Occupational health nurses Occupational health doctors Others (please give details) ………………………………..……..………………………………………………

82. Whom do you report to? 1 Human resource/personnel manager 2 Occupational health manager Occupational health physician No-one

Others (please give details) 3 4

………………………………..……..………………………………………………

HEALTH AND SAFETY IN YOUR ORGANISATION

83. At the initial job application stage, does your organisation ask applicants to state if they have a disability, ill-heath condition or injury? 1 2 3Yes No Don’t

know └► go to Q13 └► go to Q14 └► go to Q15

1 To help make arrangements to assist in the job interview process 84. If YES, is the reason for this 2 To ensure that candidates have full access 3 To ensure any people with disabilities are identified prior to

shortlisting

85. If NO, does your organisation normally ask job applicants if they have a disability, ill-health condition or injury:

When invited for interview 1 Yes 2 No 3 Don’t know

When making formal job offer 1 Yes 2 No 3 Don’t know

156

86. Would you typically be asked to comment or advise on any disability or condition identified by the potential employee? 1 2 3Yes No Don’t

know

87. If YES, please tick at which stage you would typically be asked to 1 At the application stage comment: 2 At the shortlisting stage

3 At the job-offer stage

88. Does your organisation use a pre-employment health questionnaire/health declaration? 1 2 3Yes No Don’t

know

89. If YES, please indicate if this is for: 1 All job applicants 2 Only selected applicants 3 At the job-offer stage

90. Does your organisation conduct fitness-for-work pre-employment medical examinations? 1 2 3Yes No Don’t

know

91. If YES, please indicate if this is for: 1 All potential employees 2 Only those identified by the questionnaire prior to the job offer as having an ill-health condition 3 Only for applicants over a certain age 4 Only for applicants to certain jobs (please state) ……………………………………………………………………………….…

1 Occupational health 92. If your organisation uses a health questionnaire/health declaration, is it returned to: 2 HR/Personnel

93. Is the health questionnaire treated as: 1 A confidential document seen only by OH staff 2 Part of the information made available in the

recruitment and selection process

94. If your organisation uses a health questionnaire/health declaration, who decides whether the candidate is fit for the job?

1

2

3

4

5

Yourself Other member of occupational health team (please state) ……………...…….………………………………………...

The line manager The head of HR/Personnel You/another OH professional advises line manager/HR/another manager, who then makes decision

HEALTH SCREENING IN YOUR ORGANISATION 95. Is there a manager within the organisation who is in charge of health and safety?

1 2Yes No 3 Don’t know

96. Is this person in charge of managing health and safety a qualified safety practitioner? 1 2 3Yes No Don’t

know

97. If YES, what qualification does the person hold? (Please state) ….….….….….….….….….….….…....

157

….….….….….….….….….….….…....….….….….….….….….….….….…....….….….….….….….…. ….…...

98. Who is chiefly responsible for health and safety risk assessments in your organisation? 1 Person in charge of health and safety 2 Occupational health physician 3 Occupational health nurse 4 Other (please specify)

……….……….……….……….……….……….……….……….…….…….……….

99. Does your organisation review its health and safety risk assessments taking into account 1 All new employees 2 New employees with disabilities, ill-health conditions or injuries 3 Existing employees who develop, or return to work with, disabilities, ill-health conditions or injuries

100. Do you have a disability policy – either stand-alone or as part of a diversity policy? 1 2 3Yes No Don’t

know

101. Does the policy take account both of disabled people and those with ill-health conditions or injuries? 1 2 3Yes No Don’t

know

1 2 3Yes No Don’t know

102. Does the policy make any reference to health and safety?

└If yes, please attach a copy

103. If you do not have a specific disability policy, do you have policies relating to employee ill health and/or injury? 1 2 3Yes No Don’t

know

THE EMPLOYMENT OF SICK OR DISABLED PEOPLE

THE DISABILITY DISCRIMINATION ACT 1995 DEFINES DISABILITY AS: “A PHYSICAL OR MENTAL IMPAIRMENT WHICH HAS A SUBSTANTIAL AND LONG-TERM ADVERSE EFFECT ON HIS ABILITY TO CARRY OUT NORMAL DAY-TO-DAY ACTIVITIES”. THIS MIGHT INCLUDE EPILEPSY, ARTHRITIS, DIABETES, LEARNING DIFFICULTIES, AS WELL AS MORE COMMONLY IDENTIFIED DISABILITIES – SUCH AS MOBILITY IMPAIRMENTS, SENSORY IMPAIRMENTS ETC.

104. Using this broad definition of disability, does your organisation employ any disabled people? Yes 1 No

105. If you do employ disabled people, approximately how many does it employ? Please write number in here

106. As far as you are aware, has your organisation ever overcome any health and safety difficulties that were associated with recruiting or retaining a member of staff with a disability, ill health condition or injury?

Retention 1 Yes 2 No 3 Don’t know

Recruitment 1 Yes 2 No 3 Don’t know

158

2

107. If YES, were any adjustments necessary Yes 2 No 3 Don’t

know Yes 2 No 3 Don’t

know

1 For retention

For recruitment1

IF YOU ANSWERED YES IN Q36, WERE ANY OF THE FOLLOWING ADJUSTMENTS MADE? (TICK ALL THAT APPLY)

1

2

3

4

5

6

7

8

9

10

For purposes of access and egress (eg ramping) Other adjustments to premises Transferring the person to fill an existing vacancy Altering the person’s working hours Assigning the person to a different place of work

11

12

13

14

15

Acquiring or modifying equipment or workstation Modifying instructions or reference manuals Modifying procedures for testing or assessment Providing a reader or interpreter Providing supervision

Help with transport Allocating some of the person’s duties to another person Allowing the person to be absent during working hours for rehabilitation, assessment or treatment Giving the person, or arranging for him/her to be given, training Modifying the workplace, eg. adjusting temperature, lighting, humidity etc

Others (please specify) ………………………………..………………………………………………………

108. Has your organisation ever decided not to offer a job to someone with a disability, ill-health condition or injury on the grounds that their condition would present a risk in terms of health

and safety? 1 2 3Yes No Don’t know

109. If YES, how many times in the last three years has this happened? Please write number in here

IF YES, IN THE MOST RECENT CASE, WHO TOOK THE DECISION THAT THE INDIVIDUAL SHOULD BE CONSIDERED UNFIT FOR EMPLOYMENT ON HEALTH AND SAFETY GROUNDS? (TICK ALL THAT APPLY)

1 An occupational physician 5 A personnel officer 2 Another doctor 6 Your chief executive/managing director 3 An occupational health nurse 7 The management team 4 A health and safety advisor

Other (please specify) …………….…………….…………….…………….…………….……………………

110. Was the risk to the health and safety of: 1 The disabled person (Tick all that apply) 2 Other employees

3 Members of the public Other (please specify) …..………….…………….…………….…………….… …… …..………….…………….…………….…………….… ……

WERE ANY OTHER CONCERNS INVOLVED IN THE DECISION? (TICK ALL THAT APPLY)

Breach of health & safety law Additional pension liabilities 1 5

Payment of ill-health benefits Potential inflation of insurance premiums if the risk transpired 2 6

Fear of litigation from third parties who might be harmed by the employment of the disabled person 3

159

5

7

4 Fear of litigation from the person themselves if their condition deteriorated due to the risk or if they were injured Breach of statutory requirement for job (please specify) ……………………………………………………….. Other (please specify) …………….…………….…………….…………….…………….……………………

HAS YOUR ORGANISATION EVER DECIDED NOT TO OFFER A JOB TO SOMEONE WITH ONE OR MORE OF THE FOLLOWING DISABILITIES OR ILL-HEALTH CONDITIONS ON THE GROUNDS THAT THEIR CONDITION WOULD PRESENT A RISK IN TERMS OF HEALTH AND SAFETY? (TICK ALL THAT APPLY)

1

2

3

4

5

6

7

8

9

10 Mobility or dexterity 11

12

13

14

15

Mental illness Hearing impairment Stomach/liver conditions Diabetes HIV/AIDS Chest conditions Skin conditions Epilepsy Learning disabilities Sight impairment Dyslexia Heart condition Musculosketal conditions (eg. back pain, neck pain or wrist pain) Other neurological conditions (eg. MS or Parkinson’s Disease)

Others (please specify) …………….…………….…………….…………….…………….……………………

111. Looking back to recent cases, could anything more have been done to allow recruitment of the individual(s) concerned?

1 2 3Yes No Don’t know

WOULD ANY OF THE FOLLOWING FACTORS HAVE HELPED IN RECRUITING THE INDIVIDUAL(S)CONCERNED?

(TICK ALL THAT APPLY)

1 Expert advice 2 Help from co-workers 3 Financial help 4 Help from the individual concerned 5 Help from managers 6 More information about disability legislation

More information about how adjustments could be made Others (please specify)…...……….…………….…………….…………….…………….……………………

112. Has your organisation ever overcome any health and safety difficulties that were associated with existing employees’ disabilities, ill-health conditions or injuries? 1 2Yes No

IF YES, WERE ANY OF THE FOLLOWING ADJUSTMENTS MADE? (TICK ALL THAT APPLY)

1

2

3

4

5

6

7

8

For purposes of access and egress (eg ramping) 11 Acquiring or modifying equipment or workstation Other adjustments to premises Modifying instructions or reference manuals Transferring the person to fill an existing vacancy Modifying procedures for testing or assessment Altering the person’s working hours Providing a reader or interpreter Assigning the person to a different place of work Providing supervision Help with transport

12

13

14

15

Allocating some of the person’s duties to another person Allowing the person to be absent during working hours for rehabilitation, assessment or treatment

160

Giving the person, or arranging for him/her to be given, training Modifying the workplace, eg. adjusting temperature, lighting, humidity etc Others (please specify) ………………………………..………………………………………………………

9

10

113. Has your organisation ever dismissed someone (including the provision of early retirement) with a disability, ill-health condition or injury on the grounds that their condition would present a risk in terms of health and safety? 1 2 3Yes No Don’t

know

114. If YES, how many times in the last three years has this happened? Please write number in here

115. If YES, in the most recent case, who decided that someone with a disability, ill health condition or injury should be considered unfit for employment on the grounds that their condition presented a risk in terms of health and safety? (Tick all that apply) 1 5 An occupational physician A health and safety advisor 2 6Another doctor A personnel officer 3 7 An occupational health nurse Your chief executive/managing director 4 8 Person in charge of health and safety The management team

Others (please specify) ………………………………………………………………………………………..

116. Was the risk to the health and safety of 1 The disabled 2 Other employees 3 The public (Tick all that apply) person Other (please specify) …………….…………….…………….…………….…………….…………………….

WERE ANY OTHER CONCERNS INVOLVED IN THE DECISION? (TICK ALL THAT APPLY)

1 Breach of health & safety law 5 Additional pension liabilities Payment of ill-health benefits Potential inflation of insurance premiums if the risk transpired 2 6

Fear of litigation from third parties who might be harmed by the employment of the disabled person 3

Fear of litigation from the person themselves if their condition deteriorated due to the risk or if they were injured

4

Breach of statutory requirement for job (please specify) ……………………………………………………….. Other (please specify)…………….…………….…………….…………….…………….……………………

5

HAS YOUR ORGANISATION EVER DISMISSED SOMEONE (INCLUDING THE PROVISION OF EARLY RETIREMENT) WITH ANY OF THE FOLLOWING DISABILITIES OR ILL-HEALTH CONDITIONS ON THE GROUNDS THAT THEIR CONDITION WOULD PRESENT A RISK IN TERMS OF HEALTH AND SAFETY? (TICK ALL THAT APPLY)

1

2

3

4

5

6

7

8

9

10 Mobility or dexterity 11

12

13

14

15

Mental illness Hearing impairment Stomach/liver conditions Diabetes HIV/AIDS Chest conditions Skin conditions Epilepsy Learning disabilities Sight impairment Dyslexia Heart condition Musculosketal conditions (eg. back pain, neck pain or wrist pain) Other neurological conditions (eg. MS or Parkinson’s Disease)

Others (please specify) ………………………………………………………………………………………..

161

117. Looking back to the most recent case, could anything more have been done to retain the individual(s) concerned? 1 2 3Yes No Don’t

know

WOULD ANY OF THE FOLLOWING FACTORS HAVE HELPED IN RETAINING THE INDIVIDUAL(S) CONCERNED? (TICK ALL THAT APPLY)

1 2 Expert advice Help from co-workers 3 4 Financial help Help from the individual concerned 5 6 Help from managers More information about disability legislation 7 More information about how adjustments could be made

Others (please specify)…...……….…………….…………….…………….…………….……………………

118. Do you think that health and safety has ever been used by a manager within your organisation as a justifiable reason not to employ a person with a disability or ill health? 1 2Yes No

119. Do you think that health and safety has ever been used as a false excuse within your organisation not to employ a person with a disability or ill health? 1 2Yes No

120. Are you aware of any example within your organisation in which exceptional efforts have been made either to retain or to recruit an individual with long-term ill health or a disability? As part of the project, we are collecting examples of good practice from organisations. If you would like to give an example of your organisation’s good practice, please write brief details below ……….……….……….……….……….……….……….……….……….……….……….……….……….……… ……….……….……….……….……….……….……….……….……….……….……….……….……….……… ……….……….……….……….……….……….……….……….……….……….……….……….……….……… ……….……….……….……….……….……….……….……….……….……….……….……….……….……… ……….……….……….……….……….……….……….……….……….……….……….……….……….………

HEALTH AND SAFETY CONCERNS

121. Do you have any general health and safety concerns regarding the employment of people with disabilities, ill-health conditions or injuries? 1 2 3Yes No Don’t

know

In terms of health and safety, would you have any concerns about employing a person with any of the following listed conditions? Please tick YES or NO to indicate whether you would have any concerns employing someone in each of the following occupations: Managerial/professional, Technical, Administrative/clerical, Manual.

Managerial/ Technical Administrative/ Manual professional position clerical position position position ▼ ▼ ▼ ▼

122. Impaired mobility or YES NO YES NO YES NO YES NO

dexterity 123. A hearing impairment YES NO YES NO YES NO YES NO

124. Diabetes YES NO YES NO YES NO YES NO

125. A chest condition YES NO YES NO YES NO YES NO

126. A musculoskeletal disorder YES NO YES NO YES NO YES NO

(eg. back, neck, or wrist pain)

127. Epilepsy YES NO YES NO YES NO YES NO

128. Other neurological conditions YES NO YES NO YES NO YES NO

(eg. MS or Parkinson’s Disease)

129. A heart condition YES NO YES NO YES NO YES NO

130. Mental illness YES NO YES NO YES NO YES NO

162

▼ ▼ ▼ ▼

131. A stomach or liver condition YES NO YES NO YES NO YES NO

132. HIV/AIDS YES NO YES NO YES NO YES NO

133. A skin condition YES NO YES NO YES NO YES NO

134. A learning disability YES NO YES NO YES NO YES NO

135. Dyslexia YES NO YES NO YES NO YES NO

Other (specify) YES NO YES NO YES NO YES NO

…..…..…..……....…..….. Other (specify) YES NO YES NO YES NO YES NO

…..…..…..……....…..…..

136. Do you have any particular health and safety concerns regarding people with disabilities, ill-health conditions or injuries from the following groups?

Yes N

No Yes N Men 1 2 People whose first language is not English 1 2

Women 1 2 White people 1 2

People aged under 21 1 2 Caribbean or African people 1 2

People aged between 21 and 40 1 2 Asian people 1 2

People aged between 41 and 50 1 2 Chinese people 1 2

People aged over 50 1 2

137. If any of the above-named groups of people do raise health and safety concerns, please explain the nature of your concern.

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..…

STATUTORY OBLIGATIONS What impact do you feel the Disability Discrimination Act 1995 has had on the following:

Major Moderate Minor None Don’t know

ê ê ê ê ê

138. Your organisation in terms of the recruitment 1 2 3 4 5

of people with disabilities, ill-health conditions or injuries? 139. Your organisation in terms of the retention 1 2 3 4 5

of people with disabilities, ill-health conditions or injuries?

140. Your job in terms of the recruitment and retention of 1 2 3 4 5

people with disabilities, ill-health conditions or injuries?

141. Do you feel there is any conflict between the operation of the Disability Discrimination Act 1995 and compliance with statutory health and safety duties? 1 2 3Yes No Don’t

know

142. If yes, please explain the nature of the conflict.

……………………………………………………………………………………………………………… ……..…

163

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..… OBTAINING HELP AND ADVICE

1 HSE offices 7 Disability Employment Advisors at a local Job Centre 2 HSE InfoLine 8 Disability Rights Commission helpline 3 Local authority inspectors 9 Disability organisations 4 Trade unions 10 Professional organisations 5 Confederation of British Industry 11 Other employer organisations 6 Charities 12 Lawyers

Others (please specify)

HAS YOUR ORGANISATION SOUGHT/USED ADVICE, INFORMATION, OR SUPPORT ABOUT HEALTH AND SAFETY ISSUES RELATING TO THE EMPLOYMENT OF PEOPLE WITH DISABILITIES, ILL-HEALTH CONDITIONS OR INJURIES FROM ANY OF THE FOLLOWING?

……………………………………………………………………………………………………

Thank you for participating in the study IRS Research will be conducting further confidential research among some of the respondents taking part in this survey. If you would be willing to be re-contacted in the future to discuss some of these issues in more detail, please tick this box

Please return your questionnaire in the FREEPOST envelope provided, or mail to IRS Research, FREEPOST, 18-20 Highbury Place, London N5 1BR

164

APPENDIX 4

HSE & DRC RESEARCH ON DISABILITY AND ILL-HEALTH AT WORK: HEALTH & SAFETY PRACTITIONERS’ SURVEY

Dear ColleagueIRS Research is conducting a research project on behalf of the Health and Safety Executive and theDisability Rights Commission. The aim of the project is to investigate to what extent concerns about healthand safety requirements are affecting the recruitment and retention of people with a disability, ill-health condition or injury in different types of employment. As part of this research we are seeking the views of health and safety practitioners. We should be most grateful if you would complete this questionnaire and return it in the freepost envelopeor send it to the freepost address at the end of the questionnaire, by FRIDAY, 28 June 2002. All responses will be treated in the strictest confidence. We will not publish the names of organisations or individuals who participate in the survey.In the meantime if you have any queries about the survey, please contact Jennifer Hurstfield on 020 7354 6794 or Michael Thewlis on 020 7354 6795. If you have any queries about the research project, pleasecontact at the HSE either June Manson on 020 7717 6229 or Bal Sahota on 020 7717 6249. We will notify all survey participants as soon as the research findings become available, probably early nextyear.Yours sincerely

Jennifer Hurstfield Research Manager, IRS Research

YOUR DETAILS

Your name ......................................................…… Job Title …………….……...........……….........… Main responsibilities ..........................................………………...………………..…...............................…. Organisation .....................................................………………...………………..…...............................…. Address .....................................................………………...………………..…...............................….

.....................................................………………...………… .... Post code …………..….. Tel. number .....................................................…… (Please note, we will only contact you if we have difficulty understanding some of your answers)

143. PLEASE DESCRIBE THE MAIN PRODUCT OR SERVICE OF YOUR ORGANISATION ………….…………………………..

….……………………………………………………………………………………………………………… ……...

1

3

1

3

2 Private sector 4

Public sector144. In which sector is your organisation based? NHS Voluntary sector

2 Independent Part of a UK group of companies 145. If your organisation is in the private sector, is it

Part of an international group of companies

165

IN WHICH TOWN/CITY IS YOUR ORGANISATION BASED? (PLEASE STATE IF YOUR ORGANISATION HAS MULTIPLE SITES)

………………………………………………………………………………………………………………… ……...

1 2 Employed directly by this organisation Providing services under a contract 146. Are you

Directly (full time equivalents) Full-time Independent contract workers (full time equivalents) Part-time Employed by an agency (full time equivalents) Men (full time equivalents)

Women (full time equivalents)

147. How many employees does your organisation employ in each of the following categories?

WHICH AREA OF THE ORGANISATION WILL YOUR RESPONSES IN THIS SURVEY APPLY TO?

5

Entire organisation Other eg. head office, region, area etc. (please state)

…….……………...………………………………

4

DOES YOUR ORGANISATION HAVE ANY OF THE FOLLOWING FORMAL ARRANGEMENTS FOR EMPLOYEE CONSULTATION AND PARTICIPATION ON HEALTH AND SAFETY MATTERS THROUGH? PLEASE TICK ALL THAT APPLY

2

3

4

5

6

Safety reps appointed under the Safety Representatives and Safety Committees Regulations 1977 Safety committees under the Safety Representatives and Safety Committees Regulations 1977 Representatives of employee safety appointed under the Health and Safety (Consultation with Employees) Regulations 1996 Directly with employees under the Health and Safety (Consultation with Employees) Regulations 1996 A works council Other (please state) ……………………………………………..…....………..………..………..………..……...

1

RECRUITMENT AND SELECTION

148. Are you involved in staff recruitment processes? Yes 1 No 2

149. If YES, please tell us about your involvement ………………………………………………………………. ………….………….………….………….………….………….………….………….………….……… ….……… 1 2 3Yes No Don’t ………….………….………….………….………….………….………….………….………….……… ….………

150. At the initial job application stage, does your organisation ask applicants to state if they have a disability, ill-heath condition or injury?

151. If you use a recruitment agency, does the agency ask job applicants if they have a disability, ill­health condition? 1 2 3Yes No Don’t

152. Prior to making an offer of employment, does your organisation ask the potential employee if 1 2 3Yes No Don’t166

152. Prior to making an offer of employment, does your organisation ask the potential employee if they have a disability, ill-health condition or injury?

1 Yes, go to Q15 2 No, go to Q18 3 Don’t know, go to Q18

154. Who do you screen? All job applicants Selected applicants

155. How do you do your health 1 Questionnaire/health declaration 2 Medical examination screening?

156. Who ‘vets’ the answers or declaration ………….…………………………………………………………….1 Yes 2 No 3 Don’t

153. Does your organisation operate health screening as part of the recruitment process?

1 2

………….………….………….………….………….………….………….………….………….……… ….……… ………….………….………….………….………….………….………….………….………….……… ….……… ………….………….………….………….………….………….………….………….………….……… ….………

EMPLOYMENT POLICIES 157. What is the job title of the person in charge of managing health and safety in your organisation?

Please write in ……………..…….…….…….…….…….…….…….…….…….…….…….…….…..………….

158. Is the person in charge of health and safety IOSH qualified? 1 2 3Yes No Don’t k

1 Yes No159. Does your organisation have an occupational health department?

160. Does your organisation purchase an occupational health service from an external provider? 1 2 3Yes No Don’t

1 Yes No161. Does your organisation use the services of an occupational health physician?

162. If yes, what qualifications does the person hold? ………..………..………..………..………..………..………..………..………..………..………..………..… ……..…

163. Does your organisation use the services of any other doctors? 1 Yes No

1 Yes No164. Does your organisation use the services of an occupational health nurse?

165. If yes, what qualifications does the person hold? ……………….……….……….……….……….……….……….……….……….……….……….……….… ……..

166. Does your organisation use the services of any other nurse (eg. a non-occupational health nurse)? 1 2 3Yes No Don’t

167. Does your organisation review health and safety risk assessments taking into account new employees? 1 2 3Yes No Don’t

167 1 2 3Yes No Don’t

2

2

2

2

168. Do risk assessments include an assessment of the impact of disability, ill-health conditions and injuries?

169. Who reviews the risk assessments? (Please state their job titles) …….…….…….…….…….……… ………….……………………………………………………………………………………………………… …….

170. Who has managerial responsibility for the risk assessments? (Please state their job titles) ………….……………………………………………………………………………………………………… …….

DOES YOUR ORGANISATION REVIEW YOUR HEALTH AND SAFETY RISK ASSESSMENTS TAKING INTO ACCOUNT:

Yes No All employees Employees with disabilities, ill-health conditions or injuries Existing employees who return to work with a disability, ill-health condition or

injury

1 2

1 2

1 2

171. Have risk assessments ever precluded employment of people with particular disabilities, ill­health conditions or injuries? 1 2 3Yes No Don’t

172. If YES, please provide one or more examples ….….….….….….….….….….….….….….….….….……. ……………………………………………………………………………………………………………… ………... ……………………………………………………………………………………………………………… ………...

173. Do you have a disability policy – either stand alone or part of a diversity policy?

1 2 3Yes No Don’t 174. Does the policy take account of both disabled people and those with ill-health conditions or

injuries? 1 2 3Yes No Don’t

1 2 3Yes No Don’t know

175. Does the policy make any reference to health and safety?

176. If you do not have a specific disability policy, do you have policies relating to employee ill-health and/or injury? 1 2 3Yes No Don’t

STAFF RECRUITMENT

THE DISABILITY DISCRIMINATION ACT 1995 DEFINES DISABILITY AS: “A PHYSICAL OR MENTAL IMPAIRMENT WHICH HAS A SUBSTANTIAL AND LONG-TERM ADVERSE EFFECT ON HIS ABILITY TO CARRY OUT NORMAL DAY-TO-DAY ACTIVITIES”. THIS MIGHT INCLUDE EPILEPSY, ARTHRITIS, DIABETES, LEARNING DIFFICULTIES, AS WELL AS MORE COMMONLY-IDENTIFIED DISABILITIES - LIKE MOBILITY IMPAIRMENTS, SENSORY IMPAIRMENTS ETC.

No Yes 177. Using this broad definition of disability, do you employ any disabled people? 1 2

178. If you do employ disabled people, how many do you employ? Please write number in here

168

179. Has your organisation ever overcome any health and safety difficulties associated with recruiting a member of staff with a disability, ill-health condition or injury?

1 2 3Yes No Don’t

IF YES, WERE ANY OF THE FOLLOWING ADJUSTMENTS MADE? (TICK ALL THAT APPLY)

1

2

3

4

5

6

7

8

9

10

For purposes of access and egress (eg ramping) 11 Acquiring or modifying equipment or workstation Other adjustments to premises 12 Modifying instructions or reference manuals Transferring the person to fill an existing vacancy 13 Modifying procedures for testing or assessment Altering the person’s working hours 14 Providing a reader or interpreter Assigning the person to a different place of work 15 Providing supervision Help with transport Allocating some of the person’s duties to another person Allowing the person to be absent during working hours for rehabilitation, assessment or treatment Giving the person, or arranging for him/her to be given, training Modifying the workplace, eg. adjusting temperature, lighting, humidity etc

Others (please specify) ………………………………..………………………………………………………

180. Has your organisation ever decided not to offer a job to someone with a disability, ill-health condition or injury on the grounds that their condition would present a risk in terms of health and safety? 1 2 3Yes No Don’t

181. If yes, how many times in the last three years has this happened? Please write number in here

IF YES, IN THE MOST RECENT CASE, WHO TOOK THE DECISION THAT THE INDIVIDUAL SHOULD BE CONSIDERED UNFIT FOR EMPLOYMENT ON HEALTH AND SAFETY GROUNDS? (TICK ALL THAT APPLY)

1 5 An occupational physician A personnel officer 2 6Another doctor Your chief executive/managing director 3 7 An occupational health nurse The management team 4 A health and safety advisor

Other (please specify) …………….…………….…………….…………….…………….……………………

2 3Of the disabled Other employees Members of the (Tick all that apply) person Public Other (please specify) …………….…………….…………….…………….…………….……………………

182. Was the risk to the health and safety 1

WERE ANY OTHER CONCERNS INVOLVED IN THE DECISION? (TICK ALL THAT APPLY)

Breach of health & safety law Additional pension liabilities 1 5

Payment of ill-health benefits Potential inflation of insurance premiums if the risk transpires 2 6

Fear of litigation from third parties who might be harmed by the employment of the disabled person 3

Fear of litigation from the person themselves if their condition deteriorates due to the risk or if they were were injured

4

Breach of statutory requirement for job (please specify) ……………………………………………………….. Other (please specify) …………….…………….…………….…………….…………….……………………

5

169

1

2

3

4

5

6

7

8

9

10

HAS YOUR ORGANISATION EVER DECIDED NOT TO OFFER A JOB TO SOMEONE WITH ONE OR MORE OF THE FOLLOWING DISABILITIES OR ILL-HEALTH CONDITIONS ON THE GROUNDS THAT THEIR CONDITION WOULD PRESENT A RISK IN TERMS OF HEALTH AND SAFETY? (TICK ALL THAT APPLY)

1

2

3

4

5

6

7

8

9

Mobility or dexterity Hearing impairment Diabetes Chest conditions Epilepsy Sight impairment

10

11

12

13

14

15

Mental illness Stomach/liver conditions HIV/AIDS Skin conditions Learning disabilities Dyslexia

Heart condition Musculoskeletal conditions (eg. back pain, neck pain and wrist pain) Other neurological conditions (eg. MS and Parkinson’s Disease) Others (please specify) …………….…………….…………….…………….…………….……………………

183. Looking back to recent cases, could anything more have been done to allow recruitment of the individual(s) concerned? 1 2 3Yes No Don’t

WOULD ANY OF THE FOLLOWING FACTORS HAVE HELPED IN RECRUITING THE INDIVIDUAL(S)CONCERNED?

(TICK ALL THAT APPLY)

1 2 Expert advice Help from co-workers 3 4 Financial help Help from the individual concerned 5 6 Help from managers More information about disability legislation 7 More information about how adjustments could be made

Others (please specify)…...……….…………….…………….…………….…………….……………………

STAFF RETENTION

184. Has your organisation ever overcome any health and safety difficulties that were associated with existing employees’ disabilities, ill-health conditions or injuries? 1 2Yes No

IF YES, WERE ANY OF THE FOLLOWING ADJUSTMENTS MADE? (TICK ALL THAT APPLY)

For purposes of access and egress (eg ramping) 11 Acquiring or modifying equipment or workstation Other adjustments to premises 12 Modifying instructions or reference manuals Transferring the person to fill an existing vacancy 13 Modifying procedures for testing or assessment Altering the person’s working hours 14 Providing a reader or interpreter Assigning the person to a different place of work 15 Providing supervision Help with transport Allocating some of the person’s duties to another person Allowing the person to be absent during working hours for rehabilitation, assessment or treatment Giving the person, or arranging for him/her to be given, training Modifying the workplace, eg. adjusting temperature, lighting, humidity etc

Others (please specify) ………………………………..………………………………………………………

185. Has your organisation ever dismissed (including the provision of early retirement) someone with a disability, ill-health condition or injury on the grounds that their condition would

1 2 3Yes No Don’t170

185. Has your organisation ever dismissed (including the provision of early retirement) someone with a disability, ill-health condition or injury on the grounds that their condition would present a risk in terms of health and safety?

186. If YES, how many times in the last three years has this happened? Please write number in here

187. If YES, in the most recent case, who decided that someone with a disability, ill-health condition or injury should be considered unfit for employment on the grounds that their condition presented a risk in terms of health and safety? (Tick all that apply)

1 5 Occupational physician A health and safety advisor 2 6Another doctor A personnel officer 3 7 An occupational health nurse Your chief executive/managing director 4 8 Person in charge of health and safety The management team

Others (please specify) ………………………………………………………………………………………..

1 2 3the disabled Other employees the public 188. Was the risk to the health and personsafety of

(Tick all that apply) Other (please specify)

…………….…………….…………….…………….…………….…………………….

WERE ANY OTHER CONCERNS INVOLVED IN THE DECISION? (TICK ALL THAT APPLY)

Breach of health & safety law Additional pension liabilities 1 5

Payment of ill-health benefits Potential inflation of insurance premiums if the risk transpires 2 6

Fear of litigation from third parties who might be harmed by the employment of the disabled person 3

Fear of litigation from the person themselves if their condition deteriorates due to the risk or if they were were injured

4

Breach of statutory requirement for job (please specify) ……………………………………………………….. 5

Other (please specify) …………….…………….…………….…………….…………….……………………

HAS YOUR ORGANISATION EVER DISMISSED SOMEONE (INCLUDING THE PROVISION OF EARLY RETIREMENT) WITH ANY OF THE FOLLOWING DISABILITIES OR ILL-HEALTH CONDITION ON THE GROUNDS THAT THEIR CONDITION WOULD PRESENT A RISK IN TERMS OF HEALTH AND SAFETY?

1

2

3

4

5

6

7

8

9

Mobility or dexterity Hearing impairment Diabetes Chest conditions Epilepsy Sight impairment

10

11

12

13

14

15

Mental illness Stomach/liver conditions HIV/AIDS Skin conditions Learning disabilities Dyslexia

Heart condition Musculosketal conditions (eg. back pain, neck pain and wrist pain) Other neurological conditions (eg. MS and Parkinson’s Disease)

Others (please specify) ………………………………………………………………………………………..

171

189. Looking back to the most recent case, could anything more have been done to retain the individual(s) concerned? 1 2 3Yes No Don’t

WOULD ANY OF THE FOLLOWING FACTORS HAVE HELPED IN RETAINING THE INDIVIDUAL(S)CONCERNED? (TICK ALL THAT APPLY)

1 2 Expert advice Help from co-workers 3 4 Financial help Help from the individual concerned 5 6 Help from managers More information about disability legislation 7 More information about how adjustments could be made

Others (please specify) …...……….…………….…………….…………….…………….……………………

HEALTH AND SAFETY CONCERNS

190. Do you have general health and safety concerns regarding the employment of people disabilities or ill-health conditions or injuries? 1 2 3Yes No Don’t

In terms of health and safety, would you have any concerns about employing a person with one of the following listed conditions? Please tick YES or NO to indicate whether you would have any concerns employing someone in each of the following occupations: Managerial/professional, Technical, Administrative/clerical, Manual.

Do you have any concerns employingManagerial/someone with any of the followingprofessional

conditions? position

Technical Admin/ Manual position clerical position

position ▼ ▼ ▼ ▼

191. Impaired mobility or dexterity

192. A hearing impairment

193. Diabetes

194. A chest condition

195. A musculoskeletal disorder (eg. back, neck, or wrist pain)

196. Epilepsy 197. Other neurological conditions

(eg. MS, Parkinson’s Disease)

198. A heart condition 199. Mental illness 200. A stomach or liver condition 201. HIV/AIDS 202. A skin condition 203. A learning disability 204. Dyslexia Other (specify) …..…..…..……....…..….. Other (specify) …..…..…..……....…..…..

YES NO YES NO YES NO YES NO

YES NO YES NO YES NO YES NO

YES NO YES NO YES NO YES NO

YES NO YES NO YES NO YES NO

YES NO YES NO YES NO YES NO

YES NO YES NO YES NO YES NO

YES NO YES NO YES NO YES NO

YES NO YES NO YES NO YES NO

YES NO YES NO YES NO YES NO

YES NO YES NO YES NO YES NO

YES NO YES NO YES NO YES NO

YES NO YES NO YES NO YES NO

YES NO YES NO YES NO YES NO

YES

YES

YES

NO

NO

NO

YES

YES

YES

NO

NO

NO

YES

YES

YES

NO

NO

NO

YES

YES

YES

NO

NO

NO

205. Do you have any particular health and safety concerns regarding people with disabilities, ill­health conditions or injuries from the following groups

172

Yes No Yes No Men 1 2

1 2

1 2

1 2

1 2

1 2

People whose first language is not English Women White people People aged under 21 Caribbean or African people People aged between 21 and 40 Asian people People aged between 41 and 50 Chinese people People aged over 50

1 2

1 2

1 2

1 2

1 2

206. If any of the above-named groups of people do raise health and safety concerns, please explain the nature of your concern.

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..…

STATUTORY OBLIGATIONS

What impact do you feel the Disability Discrimination Act 1995 has had on the following:

Major Moderate Minor None Don’t know

ê ê ê ê ê

207. Your organisation in terms of the recruitment 1 2 3 4 5

of people with disabilities, ill-health conditions or injuries?

208. Your organisation in terms of the retention 1 2 3 4 5

of people with disabilities, ill-health conditions or injuries?

209. Your job in terms of the recruitment and retention of 1 2 3 4 5

people with disabilities, ill-health conditions or injuries?

210. Do you feel there is any conflict between the operation of the Disability Discrimination Act 1995 and compliance with statutory health and safety duties? 1 2 3Yes No Don’t

211. If yes, please explain the nature of the conflict:

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..…

………………………………………………………………………………………………………… …………..

OBTAINING HELP AND ADVICE

173

1 HSE offices 7 Disability Employment Advisors at a local Job Centre HSE InfoLine Disability Rights Commission helpline Local authority inspectors Disability organisations Trade unions Professional organisations Confederation of British Industry Other employer organisations Charities Lawyers

Others (please specify)

HAS YOUR ORGANISATION SOUGHT/USED ADVICE, INFORMATION, SUPPORT ABOUT HEALTH AND SAFETY ISSUES RELATING TO THE EMPLOYMENT OF PEOPLE WITH DISABILITIES, ILL-HEALTH CONDITIONS OR INJURIES FROM ANY OF THE FOLLOWING?

2

3

4

5

6

8

9

10

11

12

……………………………………………………………………………………………………

Thank you for participating in the study

box

IRS Research will conducting further confidential research among some of the respondents taking part in this survey. If you would be willing to be re-contacted in the future to discuss some of these issues in more detail, please tick this

Please return your questionnaire in the FREEPOST envelope provided, or mail to IRS Research, FREEPOST, 18-20 Highbury Place, London N5 1BR

174

APPENDIX 5

HSE & DRC RESEARCH IN DISABILITY AND ILL-HEALTH AT WORK: HEALTH & SAFETY REPRESENTATIVES’ SURVEY

Dear Colleague IRS Research is conducting a research project on behalf of the Health and Safety Executive and the Disability Rights Commission. The aim of the project is to investigate to what extent concerns about health and safety requirements are affecting the recruitment and retention of people with a disability, ill-health condition or injury in different types of employment. As part of this research we are seeking the views of health and safety representatives. The TUC supports the research and has kindly agreed to distribute this questionnaire to safety representatives on its mailing list. We should be most grateful if you would complete this questionnaire and return it in the freepost envelope or send it to the freepost address at the end of the questionnaire, by MONDAY, 1 July 2002. All responses will be treated in the strictest confidence. We will not publish the names of organisations or individuals who participate in the survey. In the meantime if you have any queries about the survey, please contact Jennifer Hurstfield on 020 7354 6794 or Michael Thewlis on 020 7354 6795. If you have any queries about the research project, please contact at the HSE either June Manson on 020 7717 6229 or Bal Sahota on 020 7717 6249. We will notify all survey participants as soon as the research findings become available, probably early next year. Yours sincerely

Jennifer Hurstfield Research Manager, IRS Research

YOUR DETAILS

Your name ......................................................…… Job Title …………….……...........……….........… Organisation .....................................................………………...………………..…...............................…. Address .....................................................………………...………… ..........................................…..

.....................................................………………...……. Post code …………………….. Tel. number .....................................................…… (Please note, we will only contact you if we have difficulty understanding some of your answers)

212. PLEASE DESCRIBE THE MAIN PRODUCT OR SERVICE OF YOUR ORGANISATION ………….…………………………..

….……………………………………………………………………………………………………………… ……...

1 2 Private sector Public sector213. In which sector is your organisation based? 3 NHS 4 Voluntary sector

214. If your organisation is in 1 Independent 2 Part of a UK group of companies the private sector, is it 3 Part of an international group of companies

IN WHICH TOWN/CITY IS YOUR ORGANISATION BASED? (PLEASE STATE IF YOUR ORGANISATION HAS MULTIPLE SITES)

………………………………………………………………………………………………………………… ……...

215. Please provide an estimate of the total number of employees in your organisation 175

WHICH AREA OF THE ORGANISATION WILL YOUR RESPONSES IN THIS SURVEY APPLY TO?

Entire organisation Other eg. head office, region, etc. (please state) …….……………...……………...… 6 7

As a safety representative: Yes No

216. Have you completed the basic 10-day safety representative course? 1 2

217. How long have you been a safety representative? please write in your answer in months

218. How many people do you represent? please write your answer in here

219. Of the people you represent, how many work in the following grades

Technical Semi-skilled/unskilled manual Skilled manual Administrative/clerical

DOES YOUR EMPLOYER HAVE FORMAL ARRANGEMENTS FOR EMPLOYEE CONSULTATION AND PARTICIPATION ON HEALTH AND SAFETY MATTERS THROUGH ANY OF THE FOLLOWING? PLEASE TICK IF YES

2

3

4

5

6

Safety reps appointed under the Safety Representatives and Safety Committees Regulations 1977 Safety committees under the Safety Representatives and Safety Committees Regulations 1977 Representatives of employee safety appointed under the Health and Safety (Consultation with Employees) Regulations 1996 Directly with employees under the Health and Safety (Consultation with Employees) Regulations 1996 A works council Other, including informal arrangements (please state) …………....………..………..………..………..……...

1

…………………………..…………..………..………..………..………..………..………..………..………..……...

EMPLOYMENT POLICIES

220. What is the job title of the person in overall charge of health and safety in your organisation?

Please write in ……………..…….…….…….…….…….…….…….…….…….…….…….…….…..………….

221. Is the person in charge of health and safety IOSH qualified? 1 2 3Yes No Don’t

k 222. How many people work in your employer’s Health and Safety department? _____________

Please list their job titles Relevant qualifications held ……………………………………………………… …………..…………..…………..…………..…… ……………………………………………………… …………..…………..…………..…………..…… ……………………………………………………… …………..…………..…………..…………..……

1223. Does your employer have an occupational health department? Yes No

224. Does your employer purchase occupational health services from an external provider?

1 2 3Yes No Don’t

225. Does your employer use the services of an occupational health physician? 1 2 3Yes No Don’t

226. If yes, what qualifications does the person hold? ………..………..………..………..………..………..………..………..………..………..………..………..… ……..………….

176

2

227. Does your employer use the services of any other doctors? 1 Yes 2 No

228. Does your employer use the services of an occupational health nurse? Yes No

229. If yes, what qualifications does the person hold? ……..……..……..……..……..……..……..………….

230. Does your employer use the services of any other nurse? (eg. a non-occupational health nurse)

1 2

1 2 3Yes No Don’t

231. Does your employer review health and safety risk assessments taking into account new employees? 1 2 3Yes No Don’t

232. Do risk assessments include an assessment of the impact of disability, ill-health conditions and injuries?

233. Who reviews the risk assessments in your organisation? (Please tick all that apply)

1

2

3

4

6

Person in charge of Health & Safety Health and safety practitioner Occupational health physician 1 2 3Yes No Don’t Occupational health nurse Other (please state) …………....………..……………………………………………..………..………..…….….

HOW OFTEN DOES YOUR EMPLOYER REVIEW HEALTH AND SAFETY RISK ASSESSMENTS TAKING INTO ACCOUNT:

Less often Don’t Yearly Never know

All employees Employees with disabilities, ill-health conditions or injuries Existing employees who return to work with a disability,

1 2 3 4

1 2 3 4

1 2 3 4

ill-health condition or injury

234. Please describe the role you play as a safety representative in your employer’s risk assessments ……………………………………………………………………………………………………………… ………... ……………………………………………………………………………………………………………… ………...

235. Have risk assessments ever precluded employment of people with particular disabilities, ill­health conditions or injuries? 1 2 3Yes No Don’t

236. If YES, please provide one or more examples ….….….….….….….….….….….….….….….….….……. ……………………………………………………………………………………………………………… ………... ……………………………………………………………………………………………………………… ………...

237. Has your employer made any changes to health & safety arrangements to help recruit someone with a disability, long-term health condition or injury?

177

1 2 3Yes No Don’t

238. If yes, did you as a safety representative play any role in this process? Please explain your answer .………….………………………………………………………………………... ……………………………………………………………………………………………………………… ………... ……………………………………………………………………………………………………………… ………...

239. Has your employer made any changes to health & safety arrangements to help retain someone with a disability, long-term health condition or injury?

1 2 3Yes No Don’t

240. If yes, did you as a safety representative play any role in this process?

Please explain your answer .………….………………………………………………………………………... ……………………………………………………………………………………………………………… ………... ……………………………………………………………………………………………………………… ………...

241. Does your organisation have a disability policy – either stand alone or as part of a diversity policy?

1 2 3Yes No Don’t 242. Does the policy take account of both disabled people and those with ill-health conditions or

injuries? 1 2 3Yes No Don’t

1 2 3Yes No Don’t know

243. Does the policy make any reference to health and safety?

244. If you do not have a specific disability policy, do you have policies relating to employee ill-health and/or injury?

1 2 3Yes No Don’t

STAFF RECRUITMENT

THE DISABILITY DISCRIMINATION ACT 1995 DEFINES DISABILITY AS: “A PHYSICAL OR MENTAL IMPAIRMENT WHICH HAS A SUBSTANTIAL AND LONG-TERM ADVERSE EFFECT ON HIS ABILITY TO CARRY OUT NORMAL DAY-TO-DAY ACTIVITIES”. THIS MIGHT INCLUDE EPILEPSY, ARTHRITIS, DIABETES, LEARNING DIFFICULTIES, AS WELL AS MORE COMMONLY-IDENTIFIED DISABILITIES - LIKE MOBILITY IMPAIRMENTS, SENSORY IMPAIRMENTS ETC.

1245. Using this broad definition of disability, does your organisation employ any Yes No disabled people?

246. If your organisation does employ disabled people, how many do you employ?

247. Has your employer ever overcome any health and safety difficulties associated with recruiting a member of staff with a disability, ill-health condition or injury? 1 2 3Yes No Don’t

IF YES, WERE ANY OF THE FOLLOWING ADJUSTMENTS MADE? (TICK ALL THAT APPLY)

For purposes of access and egress (eg ramping) 11 Acquiring or modifying equipment or workstation Other adjustments to premises Modifying instructions or reference manuals Transferring the person to fill an existing vacancy Modifying procedures for testing or assessment

178

12

13

1

2

3

2

4

5

6

7

8

9

10

Altering the person’s working hours 14 Providing a reader or interpreter Assigning the person to a different place of work Providing supervision Help with transport

15

Allocating some of the person’s duties to another person Allowing the person to be absent during working hours for rehabilitation, assessment or treatment Giving the person, or arranging for him/her to be given, training Modifying the workplace, eg. adjusting temperature, lighting, humidity etc

Others (please specify) ………………………………..………………………………………………………

248. Were you involved, as a safety representative, in the process of making these adjustments? Please describe your involvement .………….………………………………………………………………... ……………………………………………………………………………………………………………… ………...

249. Has your employer ever decided not to offer a job to someone with a disability Ill-health condition or injury on the grounds that their condition would present a risk in terms of health and safety? 1 2 3Yes No Don’t

250. If yes, how many times in the last three years has this happened? Please write number in here

IF YES, IN THE MOST RECENT CASE, WHO TOOK THE DECISION THAT THE INDIVIDUAL SHOULD BE CONSIDERED UNFIT FOR EMPLOYMENT ON HEALTH AND SAFETY GROUNDS? (TICK ALL THAT APPLY)

1 An occupational physician 5 A personnel officer 2 Another doctor 6 Your chief executive/managing director 3 An occupational health nurse 7 The management team 4 A health and safety advisor

Other (please specify) …………….…………….…………….…………….…………….……………………

1 Of the disabled 2 3 Members of the251. Was the risk to the health and safety Other employees (Tick all that apply) person Public Other (please specify)…………….…………….…………….…………….…………….……………………

WERE ANY OTHER CONCERNS INVOLVED IN THE DECISION? (TICK ALL THAT APPLY)

Breach of health & safety law Additional pension liabilities 1 5

Payment of ill-health benefits Potential inflation of insurance premiums if the risk transpires 2 6

Fear of litigation from third parties who might be harmed by the employment of the disabled person 3

Fear of litigation from the person themselves if their condition deteriorates due to the risk or if they were were injured

4

Breach of statutory requirement for job (please specify) ……………………………………………………….. 5

Other (please specify) …………….…………….…………….…………….…………….……………………

252. Were you involved, as a safety representative, in the process of making this decision? 1 2Yes No

Please describe your involvement .….………………………………………………………………………... ………………………………………………………………………………………………………………

179

252. Were you involved, as a safety representative, in the process of making this decision?

Please describe your involvement .….………………………………………………………………………... ……………………………………………………………………………………………………………… ………...

Yes 2 No253. Did you agree with your employer’s decision? 1

254. Looking back, could anything more have been done to allow recruitment of the individual(s) concerned?

Please explain your answer .………….………………………………………………………………………...

……………………………………………………………………………………………………………… ………...

WOULD ANY OF THE FOLLOWING FACTORS HAVE HELPED IN RECRUITING THE INDIVIDUAL(S)CONCERNED?

(TICK ALL THAT APPLY)

1 2 Expert advice Help from co-workers 3 4 Financial help Help from the individual concerned 5 6 Help from managers More information about disability legislation 7 More information about how adjustments could be made

Others (please specify)…...……….…………….…………….…………….…………….……………………

STAFF RETENTION

255. Has your employer ever overcome any health and safety difficulties that were associated with existing employees’ disabilities, ill-health conditions or injuries?

1 2 3Yes No Don’t

IF YES, WERE ANY OF THE FOLLOWING ADJUSTMENTS MADE? (TICK ALL THAT APPLY)

1

2

3

4

5

6

7

8

9

10

For purposes of access and egress (eg ramping) 11 Acquiring or modifying equipment or workstation Other adjustments to premises 12 Modifying instructions or reference manuals Transferring the person to fill an existing vacancy 13 Modifying procedures for testing or assessment Altering the person’s working hours 14 Providing a reader or interpreter Assigning the person to a different place of work 15 Providing supervision Help with transport Allocating some of the person’s duties to another person Allowing the person to be absent during working hours for rehabilitation, assessment or treatment Giving the person, or arranging for him/her to be given, training Modifying the workplace, eg. adjusting temperature, lighting, humidity etc Others (please specify) ………………………………..………………………………………………………

256. Were you, as a safety representative, involved in this process? Please describe your involvement

180

1 2 3Yes No Don’t256. Were you, as a safety representative, involved in this process? Please describe your involvement …………………………………………………………………………... ……………………………………………………………………………………………………………… ………...

257. Has your organisation ever dismissed (including the provision of early retirement) someone with a disability, ill-health condition or injury on the grounds that their condition would present a risk in terms of health and safety? 1 2 3Yes No Don’t

258. If yes, how many times in the last three years has this happened? Please write number in here

259. If YES, in the most recent case, who decided that someone with a disability, ill-health condition or injury should be considered unfit for employment on the grounds that their condition presented a risk in terms of health and safety? (Tick all that apply)

1 5 Occupational physician A health and safety advisor 2 6Another doctor A personnel officer 3 7 An occupational health nurse Your chief executive/managing director 4 8 Person in charge of health and safety The management team

Others (please specify) ………………………………………………………………………………………..

260. Was the risk to the health and safety 1 Of the disabled 2 Other employees 3 Members of the (Tick all that apply) person public Other (please specify) …………….…………….…………….…………….…………….…………………….

WERE ANY OTHER CONCERNS INVOLVED IN THE DECISION? (TICK ALL THAT APPLY)

Breach of health & safety law Additional pension liabilities 1 5

Payment of ill-health benefits Potential inflation of insurance premiums if the risk transpires 2 6

Fear of litigation from third parties who might be harmed by the employment of the disabled person 3

Fear of litigation from the person themselves if their condition deteriorates due to the risk or if they were were injured

4

Breach of statutory requirement for job (please specify) ………………………………………………………..

Other (please specify) …………….…………….…………….…………….…………….……………………

5

HAS YOUR ORGANISATION EVER DISMISSED SOMEONE (INCLUDING THE PROVISION OF EARLY RETIREMENT) WITH ANY OF THE FOLLOWING DISABILITIES OR ILL-HEALTH CONDITION ON THE GROUNDS THAT THEIR CONDITION WOULD PRESENT A RISK IN TERMS OF HEALTH AND SAFETY? (TICK ALL THAT APPLY)

1

2

3

4

5

6

7

Mobility or dexterity Mental illness Hearing impairment Stomach/liver conditions Diabetes HIV/AIDS Chest conditions Skin conditions Epilepsy Learning disabilities Sight impairment Dyslexia Heart condition

10

11

12

13

14

15

181

8

9

Musculosketal conditions (eg. back pain, neck pain and wrist pain) Other neurological conditions (eg. MS and Parkinson’s Disease)

Others (please specify) ………………………………………………………………………………………..

261. Were you, as a safety representative, involved in this process? 1 2Yes No Please describe your involvement ……………….………………………….………………………………... ……………………………………………………………………………………………………………… ………... ……………………………………………………………………………………………………………… ………...

262. Did you agree with your employer’s decision? 1 Yes 2 No

263. Looking back, could anything more have been done to avoid the dismissal? 1 2 3Yes No Don’t

Please explain your answer .………….………………………………………………………………………...

……………………………………………………………………………………………………………… ………... ……………………………………………………………………………………………………………… ………...

WOULD ANY OF THE FOLLOWING FACTORS HAVE HELPED IN AVOIDING THE DISMISSAL? (TICK ALL THAT APPLY)

1 Expert advice 2 Help from co-workers Financial help Help from the individual concerned Help from managers More information about disability legislation

4

6

3

5

7 More information about how adjustments could be made Others (please specify) …...……….…………….…………….…………….…………….……………………

182

HEALTH AND SAFETY CONCERNS

In terms of health and safety, in your role as a safety representative, would you have any concerns about employing a person with one of the following listed conditions? Please tick YES or NO to indicate whether you would have any concerns employing someone in each of the following occupations: Managerial/professional, Technical, Administrative/clerical, Manual.

Do you have any concerns employing someone with Managerial/ Technical Admin/ Manual any of the following conditions? professional position clerical position

position ▼

position

264. Impaired mobility or dexterity YES NO

▼

YES NO

▼

YES NO

▼

YES NO

265. A hearing impairment YES NO YES NO YES NO YES NO

266. Diabetes YES NO YES NO YES NO YES NO

267. A chest condition YES NO YES NO YES NO YES NO

268. A musculoskeletal disorder (eg. back, neck, or wrist pain) YES NO YES NO YES NO YES NO

269. Epilepsy YES NO YES NO YES NO YES NO

270. Other neurological conditions Disease)

(eg. MS, Parkinson’s YES NO YES NO YES NO YES NO

271. A heart condition YES NO YES NO YES NO YES NO

272. Mental illness YES NO YES NO YES NO YES NO

273. A stomach or liver condition YES NO YES NO YES NO YES NO

274. HIV/AIDS YES NO YES NO YES NO YES NO

275. A skin condition YES NO YES NO YES NO YES NO

276. A learning disability YES NO YES NO YES NO YES NO

277. Dyslexia YES NO YES NO YES NO YES NO

Other (specify)YES NO YES NO YES NO YES NO

………..…..…..……....…..………………

278. If any of the above groups of people do raise health and safety concerns, please explain the nature of your concern.

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..… STATUTORY OBLIGATIONS

279. What impact do you feel the Disability Discrimination Act has had on your employer in terms of the recruitment and retention of people with disabilities, ill-health conditions or injuries?

Circle one of the following: Moderate Minor None Don’t knowMajor

280. What impact do you feel health and safety legislation has had on your employer in terms of the recruitment and retention of people with disabilities, ill-health conditions or injuries?

Circle one of the following: Moderate Minor None Don’t knowMajor

281. What impact do you feel the Disability Discrimination Act had on your functions as a health and safety representative? Circle one of the following: Moderate Minor None Don’t knowMajor

183

282. What impact do you feel health and safety legislation has had on your functions as a safety representative in terms of the recruitment and retention of people with disabilities, ill-health conditions or injuries? Circle one of the following: Moderate Minor None Don’t knowMajor

283. Do you feel there is any conflict between the operation of the Disability Discrimination Act 1995 and compliance with statutory health and safety duties?

1 2 3Yes No Don’t 284. If yes, please explain the nature of the conflict:

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..…

……………………………………………………………………………………………………………… ……..… OBTAINING HELP AND ADVICE

1 HSE offices 7 Disability Employment Advisors at a local Job Centre HSE InfoLine Disability Rights Commission helpline Local authority inspectors Disability organisations Trade unions Professional organisations Confederation of British Industry Other employer organisations Charities Lawyers

Others (please specify)

HAS YOUR EMPLOYER SOUGHT/USED ADVICE, INFORMATION, SUPPORT ABOUT HEALTH AND SAFETY ISSUES RELATING TO THE EMPLOYMENT OF PEOPLE WITH DISABILITIES, ILL-HEALTH CONDITIONS OR INJURIES FROM ANY OF THE FOLLOWING?

2

3

4

5

6

8

9

10

11

12

……………………………………………………………………………………………………

Thank you for participating in the study IRS Research will conducting further confidential research among some of the respondents taking part in this survey. If you would be willing to be re-contacted in the future to discuss some of these issues in more detail, please tick this box

Please return your questionnaire in the FREEPOST envelope provided, or mail to IRS Research, FREEPOST, 18-20 Highbury Place, London N5 1BR

184

APPENDIX 6

HSE & DRC RESEARCH ON DISABILITY AND ILL-HEALTH AT WORK: SCHEDULE FOR SEMI-STRUCTURED INTERVIEWS WITH EMPLOYERS

A INTRODUCTION

Thank you for agreeing to help us with our research project.

We are conducting research on behalf of the Health and Safety Executive and the Disability Rights Commission into situations where job opportunities for people with a disability, health condition or injury are restricted for reasons related to health and safety rules and practices operated by employers

Some early findings of our research reveals that a number of employers take steps to overcome health and safety barriers in the recruitment and/or retention of disabled people, and the purpose of this interview is to discuss instances where it has been possible for your organisation to accommodate such individuals while maintaining necessary standards of health and safety. I am also going to ask you some questions relating to instances where you it has not been possible to recruit or retain people with disabilities for health and safety reasons.

Our discussion is entirely confidential. Your name and the name of your organisation will not be published in the report to the Health and Safety Executive and the Disability Rights Commission. I will, however, write a short anonymous case study which highlights the information you provide, along with others, which will be included in the report.

I am going to use a simple interview schedule in order to provide some structure to our discussion.

B ORGANISATION DETAILS

Interviewer – when interviewing subjects who have completed a questionnaire, ask for confirmation of the information they, or their organisation, provided on the completed questionnaire (questions B1. to C3). For those who have not completed a questionnaire, ask these questions verbatim.

B1 What is your job title?

B2 What is the main business activity of the organisation?

B3 Do your answers relate to:

the whole organisation?

division(s)?

a single site?

B4 How many people do you employ?

185

B5 How many people do you employ in the following categories:

managerial/professional?

technical?

administrative?

Manual?

part-time?

full-time?

working directly for the organisation?

employed by an employment agency?

self-employed?

C. EMPLOYMENT POLICIES

C1 Does your organisation have a written policy on the employment of people with disabilities?

Interviewer – ask the respondent to describe the policy and ask for a copy

C2 If they do have a policy – Does the policy take account of both disabled people and those with ill­health conditions or injuries?

C3 If they do have a policy – Does the policy make reference to health and safety requirements?

Interviewer – ask the respondent how the policy deals with health and safety requirements

C4 Do you have a policy to actively encourage applications from disabled people?

C5 Please describe any formal arrangements for employee consultation and participation in health and safety matters

Prompt – safety reps

safety committees

works council

other arrangements

D. RECRUITMENT AND SELECTION

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D1 At the initial job application stage, does your organisation ask applicants to state if they have a disability, ill-heath condition or injury?

Interviewer – ask at what stage this happens and why, eg.

What stage?

(i) a question on the job application form (ask respondent to explain fully)

(ii) asked during a telephone interview (ask respondent to explain fully)

(iii) other reasons (ask respondent to explain fully)

Why?

(i) to rule out people with particular disabilities which are thought to conflict with a particular job (ask respondent to explain fully)

(ii) to accommodate an individual at interview, assessment centre etc (ask respondent to explain fully)

D2 If you use a recruitment agency, does the agency ask job applicants if they have a disability, ill­health condition?

D3 Prior to making an offer of employment, does your organisation ask the potential employee if they have a disability, ill-health condition or injury?

Interviewer – ask at what stage this happens and why, eg.

What stage?

(i) at interview (ask respondent to explain fully)

(ii) when making a formal offer of employment (ask respondent to explain fully)

(iii) as part of health screening or a medical consultation

(iv) (other reasons (ask respondent to explain fully)

Why?

(i) to rule out people with particular disabilities which are thought to conflict with a particular job (ask respondent to explain fully)

(ii) to accommodate an individual in the job by making a reasonable adjustment (ask respondent to explain fully)

D4 Does your organisation operate health screening as part of the recruitment process?

Interviewer – ask if all applicants are screened, or only some, ie. those with disabilities and/or health conditions

E HEALTH AND SAFETY

E1 What is the job title of the person in charge of managing health and safety in your organisation?

E2 Does your organisation have an occupational health department?

E3 Does your organisation purchase an occupational health service from an external provider?

E4 Does your organisation use the services of an occupational health physician?

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E5 Does your organisation use the services of any other doctors?

E6 Does your organisation use the services of an occupational health nurse?

E7 Does your organisation use the services of any other nurse (eg. a non-occupational health nurse)?

E8 Does your organisation review health and safety risk assessments taking into account new employees?

E9 Do risk assessments include an assessment of the impact of disability, ill-health conditions and injuries?

E10 Who reviews the risk assessments?

E11 Have risk assessments ever precluded employment of people with particular disabilities, ill-health conditions or injuries?

Interviewer – obtain as much detail as possible of one or two instances

F STAFF RECRUITMENT

Interviewer – read verbatim

The Disability Discrimination Act 1995 defines disability as: “a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”. This might include epilepsy, arthritis, diabetes, learning difficulties, as well as more commonly-identified disabilities - like mobility impairments, sensory impairments etc.

F1 Using this broad definition of disability, do you employ any disabled people?

Interviewer – ask how many in total and how many in the following job categories:

a. managerial/professional

b. technical

c. administrative

d. manual

F2 Has your organisation ever overcome any health and safety difficulties associated with recruiting a member of staff with a disability, ill-health condition or injury?

Interviewer – obtain as much detail as possible of one or two instances noting full details of:

type of job?

nature of job tasks?

nature of disability?

nature of potential health and safety difficulties?

adjustments made (even highly informal ones)

was help/advice received internally and externally and from where

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F3 Has your organisation ever decided not to offer a job to someone with a disability, ill-health condition or injury on the grounds that their condition would present a risk in terms of health and safety?

Interviewer – obtain as much detail as possible of one or two instances noting full details of:

type of job?

nature of job tasks?

nature of disability?

nature of potential health and safety difficulties?

were adjustments considered?

why were adjustments not possible?

was internal or external help/advice requested?

was internal or external help advice forthcoming?

F4 Looking back to the most recent case, could anything more have been done to retain the individual(s) concerned?

Prompt – expert advice

financial help

help from managers

help from co-workers

help from the individual concerned

more information on how adjustments can be made

more information about disability legislation

other

G STAFF RETENTION

G1 Has your organisation ever overcome any health and safety difficulties associated with retaining a member of staff with a disability, ill-health condition or injury?

Interviewer – obtain as much detail as possible of one or two instances noting full details of:

type of job?

nature of job tasks?

nature of disability?

nature of potential health and safety difficulties?

adjustments made (even highly informal ones)

was help/advice received internally and externally and from where

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G2 Has your organisation ever dismissed (including the provision of ill-health retirement) a member of staff with a disability, ill-health condition or injury on the grounds that their condition would present a risk in terms of health and safety?

Interviewer – obtain as much detail as possible of one or two instances noting full details of:

type of job?

nature of job tasks?

nature of disability?

nature of potential health and safety difficulties?

were adjustments considered?

why were adjustments not possible?

was internal or external help/advice requested?

was internal or external help advice forthcoming?

G3 Looking back to the most recent case, could anything more have been done to retain the individual(s) concerned?

Prompt – expert advice

financial help

help from managers

help from co-workers

help from the individual concerned

more information on how adjustments can be made

more information about disability legislation

other

H HEALTH AND SAFETY CONCERNS

Interviewer – when interviewing subjects who have completed a questionnaire, ask for confirmation of the information they, or their organisation, provided in relation to health and safety concerns (questions 64 to 80), and then invite them to expand on their answers. Then ask question H2.

For those who have not completed a questionnaire, ask the following questions H1 and H2 verbatim.

H1 Do you have general health and safety concerns regarding the employment of people with disabilities, ill-health conditions or injuries?

Interviewer – take down as much information as possible and prompt for type of disability, types of job jobs and nature of concerns.

H2 Do you feel there is any conflict between the operation of the Disability Discrimination Act 1995 and compliance with statutory health and safety duties?

Interviewer – take down as much detail as possible on the nature of the conflict

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I OBTAINING HELP AND ADVICE

I1 Has your organisation sought/used advice, information, support about health and safety issues relating to the employment of people with disabilities, ill-health conditions or injuries?

Prompt – the Health and Safety Executive

local authorities

employer associations

trade unions

charities

Disability Employment Advisors at a local Job Centre

The Disability Rights Commission

A firm of employment lawyers

Other

Interviewer – record nature of advice/help and respondents views of its quality/usefulness

Thank you again for participating in the study. Our report is likely to be published by the Health and Safety Executive early next year. Would you like to receive a summary of the report?

Interviewer check contact details if summary requested

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APPENDIX 7

HSE & DRC RESEARCH ON DISABILITY AND ILL-HEALTH AT WORK

SCHEDULE FOR SEMI-STRUCTURED INTERVIEWS WITH INDIVIDUALS WITH A DISABILITY, ILL-HEALTH CONDITION OR INJURY

A INTRODUCTION

Thank you for agreeing to help us with our research project.

We are conducting research on behalf of the Health and Safety Executive and the Disability Rights Commission into situations where job opportunities for people with a disability, health condition or injury are restricted for reasons related to health and safety rules and practices operated by employers.

I am going to ask you some questions relating to your own personal employment experience, and how you may, at one time or another, been affected by an employer’s judgement that your disability or health condition presented a risk in terms of maintaining health and safety at work.

Our discussion is confidential. Your name will not be published in our report to the Health and Safety Executive and the Disability Rights Commission. We may, however, write a short anonymous case study which highlights your experiences, along with others, which will be included in the report.

B EMPLOYMENT HISTORY

192

B1 Are you currently

employed?

unemployed?

retired early?

retired at normal retirement age?

B2 What is your occupation?

Interviewer – try and solicit an answer from all respondents, including those who are unemployed or prematurely retired

B3 What is your job title (If employed)?

Interviewer –record answer verbatim and then tick one or more of the following boxes

managerial/professional

technical

administrative

manual

B4 Are you:

a. working directly for an organisation?

b. employed by an employment agency?

c. self-employed?

d. how many hours per week do you work?

B4 Please describe your main duties

B5 If unemployed, are you:

a. currently seeking employment?

b. receiving welfare benefits?

B6 If you have retired early, are you receiving early payment of an occupational pension?

EDUCATION AND TRAINING

193

C

C1 Do you have any of the following qualifications?

a. GSCEs (nos.)

b. A levels (nos.)

c. vocational qualifications (specify)

d. a degree (type)

e. a post graduate qualification (specify)

f. a professional/technical qualification (specify)

g. another qualification (please specify)

C2 Have you received any training for the job you are currently doing, or a job you have done in the past?

Interviewer – take down verbatim

D PERSONAL CIRCUMSTANCES

D1 Male o

Female o

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D2 Can you tell me what disability or health condition you have?

Interviewer – record verbatim and then tick one or more of the following boxes

a. mobility or dexterity

b. hearing impairment

c. diabetes

d. chest condition

e. epilepsy

f. sight impairment

g. heart condition

h. musculoskeletal conditions (eg. back pain, neck pain and wrist pain)

i. a neurological condition (eg. MS and Parkinson’s Disease)

j. mental illness

k. stomach/liver condition

l. HIV/AIDS

m. skin condition

n. learning disability

o. dyslexia

p. other (specify)

D3 How does your disability or health condition affect you in your daily life?

Interviewer – record verbatim

E APPLYING FOR WORK

E1 Can you tell me approximately how many jobs you have applied for in the last five years?

E2 When applying for a job, has it ever been suggested to you that your disability or health condition would present a problem in terms of health and safety at work?

E3 How many times has this happened?

E4 Can you give an example of a particular job application where this issue was raised (interviewer – record type of job, nature of employment, eg.. direct, employed by an agency, temporary, part-time, sector and name of employer)?

195

E5 Taking this job application as an example, can you provide some detail of how your disability or health condition was thought to be a risk to health and safety, for example, which parts of the job were considered a problem?

E6 Was the perceived risk:

a risk to your health and safety?

a risk to the health and safety of other employees?

a risk to customers or members of the public?

E7 At what stage of the job application process was the issue of your disability or health condition being in conflict with health and safety raised?

after you submitted your application?

at interview?

after interview?

At another time (please specify)?

E8 Was the decision that your disability or health condition was in conflict with health and safety made as a result of:

you volunteering information about your disability or health condition during the job application process?

the employer asking you whether you have a disability or health condition?

you undergoing a medical examination?

you filling out a medical questionnaire?

E9 Did the employer conduct any form of risk assessment of the workplace. If so did this identify any health and safety risk?

E10 Again, using the same example, do you know if the employer took any steps to overcome what were considered to be health and safety difficulties to help with your recruitment?

Interviewer – record verbatim

E11 What was the outcome of this particular job application?

196

E12 If health and safety considerations resulted in you not getting the job, who took the decision that you were unfit for employment on health and safety grounds?

Prompt –

company doctor

another doctor

company nurse

company health and safety advisor

personnel manager

another manager

don’t know

E13 In this particular case, was it suggested to you that your employment would breach of health and safety law?

E14 Looking back to the case you have described, could anything more have been done to allow your recruitment?

Prompt –

Expert advice

Financial help

Help from the employer

Information on what adjustments could be made

Help from other staff

E15 Again, looking back, do you feel that you were treated fairly or unfairly in this particular situation?

Interviewer – take down verbatim

F EXPERIENCE DURING WORK

F1 Can you tell me approximately how many jobs you have had in the last five years?

F2 When working in a particular job, has it ever been suggested to you that your disability or health condition presents a problem in terms of health and safety at work?

(interviewer –record type of job, nature of employment, eg.. direct, employed by an agency, temporary, part-time, sector and name of employer)?

197

F3 How many times has this happened?

F4 Taking one of these examples you have given, can you provide some detail of how your disability or health condition was thought to be a risk to health and safety, for example, which parts of the job were considered a problem and why?

F5 Was the perceived risk:

a risk to your health and safety?

a risk to the health and safety of other employees?

a risk to customers or members of the public?

F6 At what stage of your employment with this organisation was the issue of your disability or health condition being in conflict with health and safety raised?

Prompt

When you started work with the organisation?

During or after the onset of your disability or health condition?

When you returned from a period of sickness absence?

When you returned from rehabilitation?

At another time (please specify)?

F7 Did the employer carry out any form of assessment of how your disability or health condition conflicted with health and safety rules?

F8 Again, using the same example, did the employer take any steps to overcome what were considered to be health and safety difficulties to help with your recruitment?

Prompt using list of reasonable adjustments

F9 How was the issue finally resolved?

198

F10 If health and safety considerations resulted in you leaving this particular job, who took the decision that you were unfit for employment on health and safety grounds?

Prompt –

company doctor

another doctor

company nurse

company health and safety advisor

personnel manager

another manager

don’t know

F11 In this particular case, was it suggested to you that your employment would breach health and safety law? If so, how would it be breach health and safety law?

F12 Did the employer conduct any form of risk assessment of the workplace. If so did this identify any health and safety risk?

F13 Looking back, could anything more have been done to enable you to stay in your job?

Prompt –

Expert advice

Financial help

Help from the employer

Information on what adjustments could be made

Help from other staff

F14 Again, looking back, do you feel that you were treated fairly or unfairly in this particular situation?

Interviewer – take down verbatim

G OTHER OPTIONAL INFORMATION

199

G1 Use full CRE classifications

What is your ethnic group?

White o

Mixed o

Asian/Asian British o

Black/Black British o

Chinese or other ethnic group o

Interviewer record interviewee’s response if different from above

G2 What is your age?

Under 21 o 21-30 o 31-40 o

41-50 o 51-65 o Over 65 o

Thank you for participating in the study. Our report is likely to be published by the Health and Safety Executive early next year. Would you like to receive a summary of the report?

Interviewer check contact details if summary requested.

200

APPENDIX 8

ANALYSIS OF SME EMPLOYERS IN SCOTLAND AND WALES

SME EMPLOYERS IN SCOTLAND

Telephone interviews were conducted of 100 SME employers in Scotland. A separate analysis was conducted of the sample of Scottish employers and the findings are set out below. In general, their responses showed little difference from the findings for the sample of 501 employers as a whole. Where there are notable differences, these are highlighted in the discussion below. [It should be noted that the sample size of 100 was not large enough to do analyses of sub-groups.]

Recruitment and selection

Overall, 78% of respondents said that they normally advertised job vacancies. This is a slightly lower proportion than in either England (85%) or Wales (87%).

At the initial job application stage, 55% of respondents said that they asked job applicants to state if they have a disability, ill-health condition or injury.

Only 15 respondents used a recruitment agency, but the majority of these (11) said that they did not know if the agency asked job applicants if they have a disability, ill-health condition or injury.

Just over half the interviewees said that before making an offer of an employment, they asked potential employees if they have a disability, ill-health condition or injury. Just under one-third (31%) of the organisations carried out health screening as part of the recruitment process.

Organisation of health and safety and occupational health services

A series of questions focused on the personnel responsible for health and safety and for occupational health services within the organisation. More than four out of five respondents (84% had a manager in overall charge of health and safety. Of these just over half (52%) said that the person in charge was a health and safety specialist.

One in five said that their organisation had an occupational health department – a slightly higher percentage than in Wales (14%) or England (15%). Scottish employers were also more likely to purchase an occupational health service from an external provider. The services of an occupational health physician were used by 28% of respondents, and the services of other doctors by 22%. Nearly one in five (18%) said that they used the services of an OH nurse.

Risk assessments

Nearly three-quarters of respondents said that they conducted health and safety risk assessments in respect of new employees. A lower proportion – 57% – said that they conducted health and safety risk assessments in respect of new employees with disabilities, ill-health conditions or injuries.

201

Nearly two-thirds said that they revisited their health and safety risk assessments in respect of new employees, and 56% in relation to new employees who develop, or return to work with a disability, ill-health condition or injury.

Asked whether they had made any changes to health and safety arrangements to help recruit or retain someone with a disability, ill-health condition or injury, only 15% said they had made changes in order to recruit someone. But just over two out of five (41%) had made changes to retain someone, compared with lower proportions in Wales (26%) and England (33%).

Disability policy

A lower proportion of employers in Scotland than elsewhere were in organisations with a disability policy: 40% compared with 45% in England and 54% in Wales. All but one of the respondents in Scotland said that the policy took account of both disabled people and those with ill-health conditions or injuries. Over four-fifths (85%) of those with a policy said that it made a reference to health and safety.

Employment of disabled people

Nearly one-third of interviewees (32%) said that they employed some disabled people, compared with two-thirds which did not. Nearly one half (47%) employed either one or two people. However, when provided with the broad definition of disability as set out in the DDA, 28% said that they employed more disabled people than they had originally estimated.

One in four interviewees in Scotland said that their organisation had overcome health and safety difficulties associated with recruiting someone with a disability, ill-health condition or injury. This proportion was higher than in Wales (13%) or England (18%). Nine out of 10 employers had needed to make adjustments to overcome these difficulties.

Of the 23 organisations that had made adjustments, the highest number (19) had allowed the person to be absent during working hours for rehabilitation, assessment or treatment. The next most frequently cited adjustment was giving the person, or arranging for him or her to be given, training (14 respondents), This was followed by altering the person’s working hours, mentioned by 13 interviewees.

One in four interviewees in Scotland said that their organisation had overcome health and safety difficulties associated with recruiting someone with a disability, ill-health condition or injury. This proportion was higher than in Wales (13%) or England (18%). Nine out of 10 employers had needed to make adjustments to overcome these difficulties.

Of the 23 organisations that had made adjustments, the highest number (19) had allowed the person to be absent during working hours for rehabilitation, assessment or treatment. The next most frequently cited adjustment was giving the person, or arranging for him or her to be given, training (14 respondents), This was followed by altering the person’s working hours, mentioned by 13 interviewees.

Eighteen organisations said that they had on occasion decided not to offer a job to someone with a particular condition on the grounds of health and safety. The number of respondents mentioning any particular condition was very small. The largest numbers were: seven who cited musculoskeletal conditions, and six who mentioned mobility or dexterity difficulties.

Of the 18 organisations, nearly two-fifths (39%) thought that help from the individual concerned might have assisted in the recruitment process. One in three thought that expert

202

advice would have been helpful. Eighteen organisations said that they had on occasion decided not to offer a job to someone with a particular condition on the grounds of health and safety. The number of respondents mentioning any particular condition was very small. The largest numbers were: seven who cited musculoskeletal conditions, and six who mentioned mobility or dexterity difficulties.

Overcoming barriers to the retention of individuals with a disability, ill-health condition or injury

Just over a third (36%) of employers in Scotland said that they had overcome health and safety difficulties to retain an existing employee with a disability, ill-health condition or injury. This proportion was similar to that in England (33%) and Wales (32%).

The majority of the 36 employers (83%) had made adjustments to the workstation or working arrangements in order to overcome these difficulties.

The interviewees were also asked if they had ever dismissed or retired early someone with a particular condition on the grounds of health and safety difficulties. Only 12 organisations had done so with the highest number (four) mentioning mental illness.

Just over a quarter (27%) said that help from the individual concerned might have helped in avoiding dismissal.

Health and safety concerns

Just under one-third of Scottish employers (31%) said that they had general health and safety concerns regarding the employment of people with disabilities, ill-health conditions or injuries. This was slightly lower than the proportions in England (37%) and Wales (33%). The proportions expressing concerns about particular conditions were similar to the sample as a whole.

Awareness of legislation

The level of awareness of the Health and Safety at Work Act 1974 in the Scottish sample was similar to that in the sample as a whole. Nearly a quarter (23%) said that they were very aware, 69% that they were fairly aware, and only 7% were not very aware, and 1% not at all aware.

As in the sample as a whole, the proportion indicating awareness of the DDA was higher – 38% said that they were very aware of the legislation. The proportion of interviewees who were aware of the duty on employers to consider, and if necessary make reasonable adjustments, was higher in the Scottish sample (41%) than in England (35%) or Wales (32%).

A higher proportion of Scottish employers (18%) compared with those in Wales (8%) or England (9%) said they did not know whether there was a conflict between the operation of the DDA and compliance with statutory health and safety regulations. However, a higher proportion of respondents in organisations with less than 15 employees thought that if their organisation was brought within the scope of the DDA there might be a conflict with compliance with health and safety regulations: 44% in Scotland, compare with 36% in Wales and 14% in England.

Sources of advice

Just over two-fifths of Scottish organisations had sought advice about health and safety issues relating to the employment of people with disabilities, ill-health conditions or injuries. A higher

203

proportion in Scotland had consulted Disability Employment Advisors (30%) compared with 22% in Wales and 17% in England.

SME EMPLOYERS IN WALES

Telephone interviews were conducted of 76 SME employers in Wales. A separate analysis was conducted of the sample of Welsh employers and the findings are set out below. In general, their responses showed little difference from the findings for the sample of 501 employers as a whole. Where there are notable differences, these are highlighted in the discussion below. [It should be noted that the sample size of 76 was not large enough to do analyses of sub-groups.]

Recruitment and selection

Overall, 87% of respondents said that they normally advertised job vacancies. This is a higher proportion than in either England (85%) or Scotland (78%).

At the initial job application stage, 57% of respondents said that they asked job applicants to state if they have a disability, ill-health condition or injury.

Only 13 respondents used a recruitment agency. Half of these (6) said that they did not know if the agency asked job applicants if they have a disability, ill-health condition or injury.

Just over half the interviewees (54%) said that before making an offer of an employment, they asked potential employees if they have a disability, ill-health condition or injury. Health screening was carried out as part of the recruitment process by 37% - a higher proportion than in England (28%) or Scotland (31%).

Organisation of health and safety and occupational health services

A series of questions focused on the personnel responsible for health and safety and for occupational health services within the organisation. Nearly nine out of 10 respondents (87% had a manager in overall charge of health and safety. Of these just over half (52%) said that the person in charge was a health and safety specialist.

One in seven (14%) said that their organisation had an occupational health department – a similar percentage as in England (15%), but lower than in Scotland (20%). Just under a third of Welsh employers purchased an occupational health service from an external provider. The services of an occupational health physician were used by 36% of respondents – higher than the 28% in both England and Scotland - and 29% also used the services of other doctors. Around one in eight (12%) said that they used the services of an OH nurse – a similar proportion as in the English sample (14%) but lower than in Scotland (18%).

Risk assessments

Around two-thirds of Welsh respondents (67%) said that they conducted health and safety risk assessments in respect of new employees. A lower proportion – 57% – said that they conducted health and safety risk assessments in respect of new employees with disabilities, ill-health conditions or injuries.

A higher proportion (72%) said that they revisited their health and safety risk assessments in respect of new employees compared with 64% in both England and Scotland, and 59% did so in relation to new employees who develop, or return to work with a disability, ill-health condition or injury.

204

Asked whether they had made any changes to health and safety arrangements to help recruit or retain someone with a disability, ill-health condition or injury, only 17% of the Welsh employers said they had made changes in order to recruit someone. A higher proportion (26%) had made changes to retain someone, compared with higher proportions in England (33%) and Scotland (41%).

Disability policy

A higher proportion of employers in Wales than elsewhere were in organisations with a disability policy: 54% compared with 45% in England and 40% in Scotland. Nearly nine out of 10 respondents in Wales said that the policy took account of both disabled people and those with ill-health conditions or injuries. Of those with a policy, 95% said that it made a reference to health and safety, a higher proportion than amongst the English respondents (81%) or Scottish respondents (85%).

Employment of disabled people

Nearly one-third of interviewees (32%) said that they employed some disabled people, compared with two-thirds which did not. Of those who did employ disabled people, 50% employed either one or two people. However, when provided with the broad definition of disability as set out in the DDA, 30% said that they employed more disabled people than they had originally estimated.

Overcoming barriers to the recruitment of individuals with a disability, ill-health condition or injury

Only 10 interviewees in Scotland (13%) said that their organisation had overcome health and safety difficulties associated with recruiting someone with a disability, ill-health condition or injury, compared with18% in England and 25% in Scotland. All 10 employers had needed to make adjustments to overcome these difficulties.

All the 10 organisations that had made adjustments had allowed the person to be absent during working hours for rehabilitation, assessment or treatment, and had given the person, or arranged for him or her to be given, training. The next most frequently mentioned adjustment was allocating some of the person’s duties to another person, mentioned by eight interviewees.

Fourteen organisations (18%) said that they had on occasion decided not to offer a job to someone with a particular condition on the grounds of health and safety. The number of respondents mentioning any particular condition was very small. The largest numbers were: six who cited musculoskeletal conditions, and five who mentioned heart conditions.

Of the 14 organisations, just over half (53%) thought that expert advice would have been helpful in recruiting the individual concerned. This was a higher proportion than in England (43%) or Scotland (33%). The same proportion of Welsh respondents thought1 that help from the individual concerned would also have assisted the process. Again this was a higher proportion than the 39% in Scotland and 40% in England.

Overcoming barriers to the retention of individuals with a disability, ill-health condition or injury

Just under a third (32%) of employers in Wales said that they had overcome health and safety difficulties to retain an existing employee with a disability, ill-health condition or injury.

205

The majority of these employers (88%) had needed to make adjustments to the workstation or working arrangements in order to overcome these difficulties.

The interviewees were also asked if they had ever dismissed or retired early someone with a particular condition on the grounds of health and safety difficulties. Only 12 organisations had done so with the highest number (five) mentioning mobility or dexterity difficulties and four mentioning musculoskeletal conditions.

Just over a quarter (27%) said that help from the individual concerned might have helped in avoiding dismissal.

Health and safety concerns

One-third of Welsh employers (33%) said that they had general health and safety concerns regarding the employment of people with disabilities, ill-health conditions or injuries. The proportions expressing concerns about particular conditions were slightly higher than for the sample as a whole.

Awareness of legislation

The level of awareness of the Health and Safety at Work Act 1974 in the Welsh sample was similar to that in the sample as a whole. More than a fifth (22%) said that they were very aware, 70% that they were fairly aware, and only 5% were not very aware, and 3% not at all aware.

As in the sample as a whole, the proportion indicating awareness of the DDA was higher – 34% said that they were very aware of the legislation. The proportion of interviewees who were very aware of the duty on employers to consider, and if necessary make reasonable adjustments, was lower in the Welsh sample (32%) than in England (35%) or Scotland (41%).

More than a quarter of Welsh employers (29%) thought there was a conflict between the operation of the DDA and compliance with statutory health and safety regulations. In organisations with less than 15 employees, 36% of Welsh interviewees thought that if their organisation was brought within the scope of the DDA there might be a conflict with compliance with health and safety regulations, compared with 44% in Scotland, and only 14% in England who held that view.

Sources of advice

Nearly two-fifths of Welsh organisations had sought advice about health and safety issues relating to the employment of people with disabilities, ill-health conditions or injuries. A higher proportion in Wales had consulted the HSE offices (33%) compared with 21% in Scotland and 26% in England.

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