Disability discrimination in the workplace

The Equality Act 2010 (the Act) protects a wide range of individuals within the field of employment against disability discrimination. Under the Act disability is defined as a physical or mental impairment, which has a substantial and long term adverse effect on the individual’s ability to carry out normal day to day activities.

The key issues to consider when assessing if an individual has a disability for the purposes of the Act are:

• Does the individual have a physical or mental impairment?
• Does this have an adverse effect on their ability to carry out normal day to day activities?
• Is that effect substantial? (i.e. more than minor or trivial).
• Is that effect long-term? (It will have a long-term effect if it has lasted 12 months, is likely to last at least 12 months or is likely to last for the rest of the life of the person affected).

This assessment may be obvious, for example with an employee suffering from a commonly recognised condition, but that will not always be the case, particularly with hidden disabilities or those who experience neurodiverse conditions. It will therefore often be necessary to obtain a medical report or Occupational Health input on a particular employee to make this assessment.

What types of disability discrimination are there in the workplace?

Disability discrimination might be direct, indirect, “arising from” a disability, a failure to make reasonable adjustments, harassment or victimisation.

Direct discrimination

For direct disability discrimination to take place, the less favourable treatment must be “because of” the disability. The Act also prohibits direct discrimination and harassment based on association and perception. For example, if an employer treats an employee less favourably because the employee’s child is disabled or because they wrongly perceive the employee to be disabled, the employee is protected.

It is worth noting that to succeed in a claim, the treatment must be less favourable, not just different. The comparator can be real or hypothetical. Whilst the comparator does not have to be identical in every way, the comparator must have those characteristics which the employer has considered in deciding to treat the claimant in a particular way, except for the protected characteristic.

Indirect discrimination

The concept of indirect discrimination is concerned with acts, decisions or policies which are not intended to treat anyone less favourably, but which in practice have the effect of disadvantaging particular groups. The starting point is to look at the impact on people within a defined pool for comparison. The pool in a particular case may consist of a single workplace, the population within the local area of a workplace or even the whole economically active population of the UK.

The provisions that put members of the protected group (ie disabled employees) at a particular disadvantage must also put the claimant at a disadvantage. It is not enough merely to establish that they are a member of the protected group.

Unlike for direct discrimination, employers can seek to justify indirect discrimination if the provisions causing the indirect discrimination can be shown to be a proportionate means of achieving a legitimate aim. The approach to justification is that the measures taken by the employer must correspond to a real need on the part of the employer, must be appropriate with a view to achieving the objectives pursued and must be necessary to that end.

Discrimination arising from a disability

Discrimination arising from disability occurs where A treats B unfavourably (no comparator required) because of something arising in consequence of B’s disability and A cannot show that it was a proportionate means of achieving a legitimate aim. The unfavourable treatment need not be because of the disability, but there must be a connection between the disability and the unfavourable treatment.

It is worth noting that there is no discrimination if the employer did not know and could not reasonably have been expected to know, that the employee was disabled.

Failure to make reasonable adjustments for disability

The Act imposes a duty on employees to make reasonable adjustments to premises or working practices to help disabled employees and job applicants where any provision, criterion or practice applied by or on behalf of an employer, or any physical feature of premises occupied by the employer places the disabled employee at a substantial disadvantage.

The duty to make reasonable adjustments does not arise simply because an employee is known by an employer to be disabled; the employee must also be placed at a substantial disadvantage in comparison with persons who are not disabled. A substantial disadvantage is one that is not minor or trivial but is a relatively low threshold.

The employer is only under a duty to make reasonable adjustments where they know, or could reasonably be expected to know, that an applicant or employee is disabled.

Owing to the words “could reasonably be expected to know”, it is clear that actual knowledge of disability is not required. Accordingly, employers should take reasonable steps and have systems in place to ascertain whether applicants and employees are disabled and whether they are at a substantial disadvantage.

Examples of reasonable adjustments in the workplace

Adjustments may include: making adjustments to premises; allocating some of the disabled employee’s duties to another employee; transferring the disabled employee to fill an existing vacancy (whether at the same level or at a more senior or junior level); altering the disabled employee’s hours of work or training (which may include allowing a phased return to work); assigning the disabled employee to a different place of work or training; adjusting a capability policy, giving, or arranging training or mentoring; or acquiring or modifying equipment.

In assessing whether any adjustment is “reasonable”, the following factors will be taken into account:

• The effectiveness of the step in ameliorating the disadvantage.
• The practicability of taking the step.
• The financial and other costs which would be incurred by the employer, and the extent to which the step would disrupt any of its activities.
• The financial and other resources available to the employer.
• The nature of the employer’s activities and the size of the undertaking.

These considerations mean that whether an adjustment is reasonable is highly fact specific and that an adjustment that is reasonable for one employer may not be reasonable for another.

Harassment

Under the Act a person harasses another if they engage in unwanted conduct related to disability which has the purpose or effect of either violating the individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Harassment can therefore be made out even if the perpetrator did not intend to create such an environment, if their conduct had that effect, taking into account the subjective perception of the would-be harassee, whether it is objectively reasonable for the conduct to have had that effect and the other relevant circumstances of the case. It is not necessary for the complainant to have previously indicated that they did not want such conduct, it will be for the Tribunal to assess whether the conduct is unwanted – the would-be harasser therefore cannot “test the water”.

Victimisation

Victimisation takes place if an individual is subjected to a detriment either because they have done (or are believed to have done) a protected act. A protected act is bringing a claim under the disability discrimination provisions, giving evidence in connection with proceedings or alleging that someone has contravened the Act.

Our expertise

We advise in all aspects of employment law including on disability discrimination issues. We use our exceptional breadth and depth of expertise to give clients personalised advice to help manage risks and resolve issues. This includes audits of your current processes and documentation as well as bespoke training tailored to your needs together with the use of our independent HR consultants as part of our comprehensive dispute resolution offering.

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