- 8 minute read
- Last updated: 25th October 2019
It is unlawful to discriminate against an individual in the workplace by reason of disability. Discrimination issues typically relate to flawed or inconsistent organisational policies, procedures or practices that have failed to accommodate people’s physical or mental impairments as required by law. Understanding and recognising different types of disability discrimination can help employers take a proactive approach to prevent discrimination and avoid employees with disabilities suffering less favourable treatment because of their condition.
This article covers:
- What qualifies as a disability?
- What are the types of disability discrimination?
- Disability discrimination across the employee lifecycle
- Dealing with disability discrimination
According to the Equality Act 2010, a person is disabled if:
- They have a mental or physical impairment, and
- The impairment has a considerable, long-term detrimental effect on their ability to perform everyday tasks
- They have an impairment which automatically qualifies as a disability, such as cancer, multiple sclerosis, HIV, a visual impairment or severe disfigurement.
Addictions, hayfever, tattoos, piercings and obesity are not considered to be impairments or disabilities in and of themselves. However, they may be related to an impairment which does qualify. For example, an obese person may qualify as disabled if they have osteoarthritis related to their weight.
Individuals with a disability are protected under the Equality Act against unfavourable treatment in the workplace. This could be where the employer has dismissed an employee due to disability-related absences, where the employer has refused or failed to provide reasonable adjustments to help the individual carry out their job, where an organisation withdraws a job offer after learning of the individual’s disability or where an employee is being bullied or victimised because they have a disability.
There are four main types of discrimination recognised by the Advisory, Conciliation and Arbitration Service (ACAS).
Types of general discrimination which apply to all protected characteristics (disability included):
- Direct discrimination
- Indirect discrimination
In addition, a further two forms of discrimination also apply to disabilities, which do not apply to other protected characteristics like age, sex or race. Types of discrimination which only apply to disabilities are:
- Discrimination arising from disability
- Failure to make reasonable adjustments
Where an individual can show they have suffered discrimination under one of these areas, they may be able to bring a tribunal claim against the organisation. It is therefore essential that employers, HR professionals and all employees with management and supervisory responsibilities understand what constitutes disability discrimination and what their roles are in providing the required level of support to those with disability in the workplace.
Direct disability discrimination
Direct discrimination describes a situation in which a person is subject to less favourable treatment due to a disability. Such poorer treatment could, for example, result in the decision not to hire, lack of access to training or less favourable working conditions or even amount to dismissal. There are three types of direct discrimination recognised by ACAS:
- Standard direct discrimination: when a person is directly discriminated against because of a disability they have. A high-performing employee loses out on a promotion to a co-worker with less impressive credentials. Management made the decision not to promote the first employee as that person is known to be recovering from cancer, and they believe there is a risk of them needing to take time off work in future. In denying the employee a promotion opportunity due to their recognised disability, they could be directly discriminating against the employee.
- Direct discrimination by perception: when a person is directly discriminated against because of a disability someone else thinks they have, even if that is not the case. For example, a job applicant is not offered the role because the employer believes the individual has a disability.
- Direct discrimination by association: when a person is discriminated against because of their association with another person who has a disability. For example, an employer is ‘passed over’ for promotion because they have a disabled child with complex care arrangements.
Indirect disability discrimination
This type of disability discrimination occurs when an employer has a policy, criterion or general practice which applies to all employees, or all employees within a specific group, e.g. “all secretarial staff”, but unfairly disadvantages people with a specific disability.
To prove indirect discrimination, the policy must be shown to disadvantage the victim due to their disability and must theoretically disadvantage all other people with the same disability.
By way of example, an employee in a large office building suffers with mobility issues due to rheumatoid arthritis. The company’s policy is that all employees may take a fifteen-minute break in the morning. The employee in this example takes far longer than most employees to reach the breakroom due to their disability and therefore, is forced to take a shorter break. They ask their supervisor if they may take their break at their desk instead, even though it is not usually allowed. If the supervisor denies their request without good cause, this could be indirect discrimination.
Indirect discrimination may not apply if an employer can prove that their policy or general practice is ‘a proportionate means of achieving a legitimate aim’, in other words, that it is essential for the normal functioning of the organisation and there are no less discriminatory alternatives available.
In the above example, the rule that employees may not take their breaks at their desks could be considered ‘a proportionate means of achieving a legitimate aim’ if the employer demonstrated that having non-working employees on the office floor disrupted other staff who were still working.
Failure to make ‘reasonable adjustments’
This is one of the most common types of disability discrimination.
Changes to policy or the working environment which are designed to minimise or negate the effects of an employee’s impairment are known as ‘reasonable adjustments’. Such alterations might include use of an ergonomic keyboard, assistive computer software or a desk chair with additional back support.
Employers are legally required to make these reasonable adjustments for their disabled staff members wherever possible. Failure to do so can qualify as discrimination.
The employer’s duty to make reasonable adjustments applies from the recruitment process onwards. This could include enquiring whether job candidates require reasonable adjustments and allowing candidates to complete any written test using a computer.
What is considered reasonable in the context of ‘reasonable adjustments’ will depend on the circumstances of each case. Relevant factors can include whether an adjustment is practical, the cost of the adjustment, what resources are available to the employer and how effective the adjustment is likely to be.
Further, there may be instances where a proposed adjustment is not reasonable and, as such, the organisation can lawfully refuse to comply with the request.
Harassment and victimisation
As a type of disability discrimination, harassment covers any unwelcome conduct in the workplace which relates to the person’s disability. This may include written, verbal or physical conduct, which is embarrassing, upsetting, intimidating, hostile or otherwise offensive in any way. Any person who witnesses harassment in the workplace can make a harassment claim; they do not need to be disabled or share a common disability with the person being harassed.
Victimisation refers to a situation in which an employee is subject to mental, emotional or physical harm, loss or damage, because they have done any of the following:
- Made a discrimination complaint
- Supported another person’s discrimination complaint
- Raised a grievance which relates to discrimination or equality
A person can also be victimised if they are believed to have done one of these things, or if someone suspects that they intend to.
Discrimination arising from disability
This type of disability discrimination covers situations in which a person is subject to poor or “unfavourable” treatment due to something associated with their disability, rather than the disability itself. The issue associated with the disability could be something like absence from work due to ill health, poor eyesight, mobility issues or difficulty paying attention.
To prove discrimination arising from disability, the victim does not have to show that they have been treated less favourably than their colleagues; they simply need to demonstrate that they themselves were treated unfavourably – no comparison is necessary.
For example, an employee with dyslexia takes longer to complete written reports, due to the issues they have with reading and writing. This results in disciplinary action against the employee, which prevents them being eligible for an annual bonus.
The Equality Act 2010 provides protection against disability discrimination at every stage of employment, from recruitment onwards. This means employees and job applicants are protected from unfavourable treatment by reason of their disability, perceived disability or by association with a disabled person.
Employers are advised to review processes across the employee lifecycle to ensure compliance. For example:
- During the application process – Is the job information available in accessible formats e.g. ]providing information about the job in alternative formats such as large print, Braille or audio? Are the selection criteria non-discriminatory?
- At the interview stage – Employers should give applicants the opportunity to request reasonable adjustments for an interview (e.g. conducting the interview in a room with wheelchair access). During the interview, they may also ask if any reasonable adjustments will need to be made for the applicant to fulfil the job role. They may not ask the applicant if they are disabled, or what kind of problems they experience as a result of the disability.
- While at work – For example, reasonable adjustments may be required t0 remove or minimise disadvantages experienced by people with a disability in performing their role.
- When promotion opportunities arise – Employees should not be overlooked or ‘passed over’ for promotion or pay rises by reason of their disability, perceived disability or association with a disability.
- On termination – Employers dealing with employees on long-term sickness leave may consider dismissal in certain circumstances, but this is rarely a straight forward option and may give rise to discrimination issues where a disability is concerned. Likewise, disciplinary action or dismissal due to poor performance may be challenged where an employer has failed to make reasonable adjustments to accommodate an employee’s disability.
Any person who thinks they have been the victim of disability discrimination in the workplace has the right to make a claim against the organisation, whether it is their employer or prospective employer.
While cases of disability discrimination in the workplace often do not involve purposeful unfair treatment, this offers no defence in the event of a tribunal claim for discrimination. Organisations should have clear policies and procedures in place to help prevent discrimination. This should include guidance on dealing with requests for reasonable adjustments and providing training for all employees involved in recruiting, onboarding and managing personnel on how to identify and avoid unfavourable treatment.
Employers should also have in place procedures for handling complaints from employees about workplace discrimination, both initial informal conversations through to a formal grievance procedure.
Combating disability discrimination at work requires action beyond dealing with individual discrimination complaints. Employers have a responsibility to consider what measures they can take to avoid cases of discrimination occurring by taking a proactive and informed approach to reviewing workplace practices and policies to ensure compliance.
DavidsonMorris are experienced employment law specialists offering guidance and support to employers in relation to disability discrimination. We have extensive experience in helping employers avoid and resolve workplace discrimination issues.
We can support the development of a compliant infrastructure, with policies and procedures that help to reduce discrimination risks. In the event of a workplace complaint, we can lead on resolving the issue, whether a grievance has been raised or a claim is being pursued against your organisation. In some circumstances, it may be appropriate and mutually beneficial to the employer and employee to consider bringing the employment contract to an end with a settlement agreement on terms agreed by both parties. We have extensive experience of leading on settlement negotiations and drafting contractual terms that support your commmercial and reputational interests.
If you have a question or need help with disability discrimination, contact us.