Health and safety and disability law in the UK

Introduction

Employers sometimes find that their duties under disability law can seem to conflict with their duties under health and safety law. While this is rarer than it’s often thought to be, it’s important to understand how these different duties interact.

This resource provides an introduction to the laws currently governing health and safety in the UK. It also offers guidance on ways to ensure an employer’s duties under health and safety legislation both complement and supplement their duties under the Equality Act 2010.

Health and safety legislation

Under health and safety law it is the duty of every employer to provide a safe system of work for all employees.

The Health and Safety at Work Act 1974

The Health and Safety at Work Act 1974 imposes several statutory duties upon the employer. For example, the employer must, “ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees”.

Employers also have duties to protect the health and safety of others not directly in their employment, but who may be affected by the employer’s activities or undertakings. For example, contractors, visitors, customers, members of the emergency services, and members of the public.

Employers’ duties for the health, safety and welfare of all employees extend to:

• The provision and maintenance of plant and systems of work.
• Use, handling, storage and transport of articles and substances.
• Provision of information, instruction, training and supervision.
• Places of work and means of access and egress.
• The working environment, facilities and welfare arrangements.

The Management of Health and Safety at Work Regulations 1999

The Management Regulations give guidance to employers on how to manage their duty to provide safe working practices in a systematic way.

They require an employer to:

• Conduct risk assessments – make a suitable and sufficient assessment to identify the risks to the health and safety of their employees, and identify related precautions to manage these risks.
• Implement management systems – to ensure that precautions are implemented.
• Appoint a competent source of health and safety advice.
• Develop emergency procedures.

The Approved Code of Practice to the regulations states that employers, in undertaking their risk assessment, should identify groups of workers who might be particularly at risk. It refers to disabled staff as one of these groups.

Breach of this duty may lead to an improvement or prohibition notice being imposed on an employer or a criminal prosecution. Breach of more specific duties may also give rise to civil action against an employer.

Fulfilling your responsibilities under health and safety legislation and the Equality Act 2010

Unlike other anti-discrimination legislation, the Equality Act 2010 allows for circumstances under which treating a disabled person unfavourably because of a disability may be justified if it is a proportionate means of achieving a legitimate aim (unless the need for the unfavourable treatment could be removed by providing a reasonable adjustment).

In limited circumstances the failure to retain a disabled employee or recruit a disabled applicant may be justified if it can be shown that there is an unacceptable risk to the disabled person’s own safety or the safety of others, and that this risk cannot be managed.

In the vast majority of cases health and safety presents no barriers to the employment of disabled people.

However, health and safety is frequently used as the rationale for the nonrecruitment or dismissal of a disabled person.

Employers often have a mistaken belief that the employment of disabled people will present an unmanageable risk to the health and safety of both the disabled person and their colleagues. This belief is particularly entrenched in employer’s attitudes towards individuals with impairments such as diabetes, epilepsy or mental health problems.

Research sponsored by the Health and Safety Executive (HSE) and the Disability Rights Commission (DRC) in 2003 found that:

• One in five large employers had decided not to offer a job to an applicant with a disability, ill-health condition or injury because of health and safety concerns. One third had dismissed an employee with a disability, injury or ill-health condition on grounds of the perceived risk to health and safety.
• One in four occupational health advisers interviewed felt that there was a conflict between the requirements of the DDA (now part of the Equality Act 2010) and compliance with health and safety legislation.
• Nearly one third of health and safety practitioners had health and safety concerns regarding the employment of people with disabilities, injuries or ill-health conditions.

The findings of this report suggest there is a lack of understanding among some employers about what constitutes a genuine health and safety risk. Lack of knowledge about the impact of a particular condition or disability can result in a paternalistic and overly cautious assessment of a disabled person’s capacity to do a job.

Situations may arise where an employer believes they cannot meet their statutory duties under health and safety law if they employ a disabled person in a particular job. However, if this belief proves ill-founded, this may result in unlawful discrimination and litigation under the Equality Act 2010.

Where health and safety is put forward as the reason for refusal to recruit or retain a disabled individual, employers must be sure that the reason is justifiable.

To meet your obligations under both health and safety and equality legislation you are advised to:

• Adopt a case management approach. See ‘What is a case management approach?’ for more information.
• Make an individual, objective and competent assessment of any risks associated with employment of the disabled individual.
• Implement ‘reasonable adjustments’ which would reduce or remove risks for the individual.
• Do all that is ‘reasonably practicable’ to remove or reduce risks associated with the environment or work activities and to uphold safe working practices.
• Deal reasonably with any cases involving residual risks.