This advice covers the following:
- What is a disability?
- Disability Discrimination in Employment
- What to do about disability discrimination issues at work?
The term ‘disability’ for employment law purposes has a broad meaning. Under the Equality Act 2010, it is defined as a physical or mental impairment that has a ‘substantial’ and ‘long-term’ adverse effect on the ability of a person to carry out normal day-to-day activities.
‘Substantial’ means more than minor or trivial and ‘long-term’ means an impairment that lasts (or is likely to last) 12 months or longer; although an impairment will still be considered long-term if the effects are fluctuating or recurring or likely to affect the rest of a person’s life. ‘Normal day-to-day activities’ includes amongst other things shopping, washing, dressing, preparing and eating food, talking or walking. In other words, activities carried out by most people fairly regularly.
The impairment does not need to be a diagnosed medical condition as long as it has a substantial and long-term adverse effect on the ability of a person to carry out normal day-to-day activities. It covers mental health conditions such as learning difficulties, as well as, in some cases, depression and anxiety, and physical impairments including back problems, mobility difficulties, sensory impairment as well as severe disfigurement.
Some people, including those with HIV, cancer and multiple sclerosis are automatically protected as disabled people and do not need to satisfy this test. Some conditions are not considered a “disability” under the Act. They include (amongst other things) hay fever, tattoos and piercings.
If you are clinically extremely vulnerable to COVID-19 and/or are clinically vulnerable, you are also most likely to be disabled for the purposes of the Equality Act.
It’s against the law for employers to discriminate against an individual because of a disability. The Equality Act 2010 protects against the following types of discrimination:
- Direct Disability Discrimination
- Discrimination arising from Disability
- Indirect Disability Discrimination
- Failure to make reasonable adjustments
1. Direct Disability Discrimination
Direct disability discrimination is when an employer treats a job applicant or an employee less favourably than another person in a similar situation because of their disability. A disabled person claiming this type of discrimination would need to compare their treatment with how someone else is treated i.e. a comparator. The comparator can be someone who is not disabled or shares a different disability but must have the same abilities and skills as the disabled person.
Example: A disabled person with arthritis can type 40 words per minute using an adapted keyboard, but only 20 words per minute using a normal keyboard. The disabled person is rejected from the administrative job on the grounds that his typing is too slow. In this case, the correct comparator would be someone without arthritis but who can also type 40 words per minute using a normal keyboard.
Direct Disability Discrimination also covers the following types of discrimination:
- Discrimination by association – this occurs when a person is treated unfavorably because of the disability of another person. For example, a job applicant is not offered a position after explaining that they care for someone with a mental health problem.
Discrimination by perception – this happens when an individual is treated worse because a person or organisation believes they have a disability. For example, a job applicant is not offered a position because of a perceived hearing-loss, which is not the case.
2. Discrimination arising from Disability
Discrimination arising from disability occurs where both:
- An employer treats a disabled person unfavourably because of something connected to their disability (rather than the disability itself); and
- The employer cannot show that the treatment is a proportionate means of achieving a legitimate aim.
A disabled person claiming this type of discrimination does not have to compare their treatment to how someone else is treated. Instead it must be shown that the disabled person is treated unfavourably because of something to do with their disability. Examples of something connected to a disability include absence from work due to illness, the need for regular breaks or difficulties with writing, reading or talking.
A person with a stammer applying for a bank cashier role is turned down as the employer is concerned that he will be unable to handle the oral demands of the job due to his stammer.
It will not be unlawful discrimination if the employer did not know (or could not reasonably be expected to have known) that the person was disabled. This means that an employer must show that they did all they could reasonably be expected to do to find out about a disability.
Discrimination arising from a disability can be lawful if it can be shown that it is a ‘proportionate means of achieving a legitimate aim.’ That is, there is a genuine business need for the discrimination (e.g. the health and safety of others) and that is reasonably necessary in order to achieve that aim, and there are no less discriminatory means available.
3. Indirect Disability Discrimination
Indirect disability discrimination occurs when an employer applies a workplace provision, criterion or practice (PCP) that applies to all employees but puts or would put those with a disability at a particular disadvantage when compared to other persons and the employer is unable to show how the PCP is objectively justified.
In limited circumstances, the indirect discrimination may be objectively justified where the employer can show that there is a legitimate aim (i.e. a real business need) and that the PCP is proportionate to that aim (i.e. that it is reasonably necessary in order to achieve that aim, and there are no less discriminatory means available).
A job advert for a teaching role in a city centre location invites candidates who can only drive to come forward, even though this is not a key requirement of the job. Without objective justification, this provision will indirectly discriminate against people who cannot drive due to their disabilities.
Unlike discrimination arising from disability, there is no requirement that the employer knows about an employee’s disability to indirectly discriminate; the disadvantage experienced by the employee simply has to flow from the PCP.
4. Disability Harassment
Disability harassment is ‘unwanted conduct’ related to disability which a person finds offensive or hostile, which makes a person feel uncomfortable, intimidated or humiliated. It can involve nicknames, name-calling, unwanted jokes or other behaviour which a person may find upsetting. The harassment can be verbal, written or physical.
It occurs where both:
- A person engages in unwanted conduct related to a disability; and
- The conduct has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile degrading, humiliating or offensive environment.
A person harassing need not be aware that their conduct is unwanted. Furthermore, a person bringing a claim for harassment need not be disabled; a non-disabled person could bring a claim where another employee creates an offensive environment, for example, by using inappropriate language which is related to disability.
A colleague with a hearing impairment is verbally abused in the open plan office about her impairment.
This occurs when a person is treated unfairly because they have made a complaint about discrimination or harassment under the Equality Act 2010, or helped someone else to make a complaint or the employer thinks that they are doing, intend to do or suspects that they are doing or intending to do these things.
A manager refuses an individual’s promotion because the individual supports a colleagues’ complaint to their employer about disability discrimination.
In such circumstances, an employee is protected under the Act where they make or support an allegation of victimization in good faith.
6. Failure to make Reasonable Adjustments
An employer is under a duty to make ‘reasonable adjustments’ to premises or working practices to help disabled employees, previous employees (in certain circumstances) and/or job applicants who are placed at a substantial disadvantage because of their disabilities. Failure to comply is a form of discrimination. The duty can arise where a disabled person is placed at a substantial disadvantage by:
- An employer’s PCP;
- A physical feature of the employer’s premises; or
- An employer’s failure to provide an auxiliary aid.
Failure to provide an employee with a hearing impairment with the right type of phone.
The EHRC Employment Statutory Code of Practice contains examples of potential adjustments that employers might be required to make.
An employer could argue that it is unreasonable to be expected to make adjustments. What is reasonable will depend on the particular circumstances. The employer will need to carefully consider whether the adjustment:
- will remove or reduce the disadvantage for the person with the disability
- is practical to make
- is affordable by the employer
- could harm the health and safety of others
In case of dispute, an employment tribunal would be required to determine whether a particular adjustment would have been reasonable to make in the circumstances. It will take into account matters including the cost of the adjustment in light of the employer’s financial resources and the disruption that the adjustment would have had on the employer’s activities.
An employer will have a defence if the employer does not know or could not reasonably have been expected to know that the individual is disabled and likely to be placed at a substantial disadvantage because of their disability.
Each employer will likely have its own procedures on how to deal with issues of discrimination. You should check your employer’s policy.
Options for resolving the situation will include:
- Making an informal complaint by talking or writing to your employer
- Making a formal complaint to your employer – ‘raising a grievance’
- Negotiating with your employer to reach an agreement, see Negotiating a Settlement.
- Use mediation – a trained mediator will try to help you and your employer reach an agreement before legal action (this may be an in-house mediator or a mediator from outside the business depending on your employer)
- Take legal action at an Employment Tribunal against the employer or the employer and the colleague causing the discrimination, harassment or victimisation – this should in most cases be a last resort, but beware of time limits for starting a legal action, see Early conciliation.
For more detail on whether or not to raise a grievance, see our blog on Grievances.
This advice applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.