03 Dec 2020

Employment

Disability discrimination at work – know your rights and responsibilities

To mark International Day for Disabled Persons, our head of employment law, Daniel Wilde, examines the issue of disability discrimination in the workplace and talks us through employees’ rights and employers’ responsibilities.

There are 14.1 million people in the UK who are registered as disabled and of these, 4.1 million are in work. According to the Labour Force Survey (April – June 2020), you are more than twice as likely to be unemployed if you are disabled. Sadly, the Disability Perception Gap (2018) found that 1 in 3 disabled people feel that there is a lot of disability prejudice and a further 1 in 3 people felt that disabled people were not as productive as non-disabled individuals.

In a society where we are striving for equality for all, these statistics are worrying. It appears that there is a long way to go before people with disabilities feel that they are on an equal footing with their non-disabled counterparts in work. Here, we outline some facts about disability discrimination so that employers know how to avoid it and employees with disabilities know how to spot it.

What is disability discrimination?

This is when someone is treated less well or put at a disadvantage for a reason that relates to their disability, whether through a one-off action, the application of a rule or policy or the existence of physical or communication barriers which make it difficult or impossible for a disabled person to access something. The discrimination does not have to be intentional to be unlawful.

What is classed as a disability?

In the Equality Act, a disability means a physical or a mental condition which has a substantial and long-term impact on someone’s ability to do normal day to day activities.

The Act covers people who have a progressive condition like HIV, cancer or multiple sclerosis, even if they are currently able to carry out normal day to day activities, as well as those who have had a disability in the past.

Different types of disability discrimination

  • Direct discrimination -This happens when someone is treated worse than another person in a similar situation because of their disability.
  • Indirect discrimination -Indirect discrimination happens when an organisation has a particular policy or way of working that has a worse impact on disabled people than on those who are not disabled.
  • Failure to make reasonable adjustments – Under the Equality Act, employers and organisations have a responsibility to make sure that disabled people can access jobs, education and services as easily as non-disabled people.
  • Discrimination arising from disability –This protects employees from being treated badly because of something connected to their disability, such as having an assistance dog or needing time off for medical appointments.
  • Harassment – This is when someone is treated in a way that makes them feel humiliated, offended or degraded. Harassment can never be justified. However, if an organisation can show it did everything it could to prevent people who work for it from behaving like that, it will not be possible to make a claim for harassment against the employer.
  • Victimisation – This is when someone is treated badly because they have made – or are supporting someone who has made – a complaint of discrimination under the Equality Act.

How does the Equality Act protect employees with a disability?

It is against the law for employers to discriminate against employees because of a disability. The Equality Act 2010 covers areas including:

  • application forms
  • interview arrangements
  • aptitude or proficiency tests
  • job offers
  • terms of employment, including pay
  • promotion, transfer and training opportunities
  • dismissal or redundancy
  • discipline and grievances

 

Advice for employers

  • Health and safety is sometimes used to justify discrimination against disabled workers but this should not happen. Every employer must ensure the health and safety of all their employees, whether they have a disability or not, so far as is reasonably practicable.
  • Under equality law, you have a duty to make reasonable adjustments  for disabled workers so that, as far as is reasonable, a disabled worker has the same access to everything that is involved in doing and keeping a job as a non-disabled person. In many cases, making adjustments will be simple and low cost, and an employer is not required to do more than is reasonable; for example improving access or layout, adapting work equipment or relocating a workstation.  What is reasonable will depend, among other things, on the size and nature of the business.
  • As well as discussing any adjustments with your disabled workers, it may also be helpful to involve others, such as disability employment advisors or medical professionals, to help understand the effects on workplace health and safety of your employee’s disability.
  • You cannot choose employees for redundancy just because they are disabled. The selection process must be fair and balanced for all employees. Similarly, you cannot force employees to retire if they become disabled.
  • You cannot insist that employees reveal details of their disability. They are under no obligation to do so, and you must get their consent before approaching specialists or doctors.  If this becomes necessary, make sure the employee is involved in this process and share with them any specialist information provided.

 

If you are an employee who has experienced discrimination in the workplace or an employer who needs advice on your responsibilities, please contact Daniel Wilde on 01633 244233 or email wilded@hevans.com for a confidential discussion.

Share post