Disability Discrimination At Work
This is a guest post by Monaco Solicitors. Published with thanks.
The Equality Act 2010 protects you, if you are disabled, from disability discrimination at work. Below, we summarise some of the key issues and practical steps that you can take if you are disabled or have been discriminated against in the workplace because of your disability.
What is disability discrimination?
Disability discrimination in the workplace occurs when you are treated worse than employees who do not have a disability or are put at a disadvantage in some way because of your disability.
Discrimination could be ongoing, in the form of a workplace policy or obstruction that prevents you from accessing things that you need to do your job, or it could only occur once.
What is disability?
The Equality Act classes a disability as ‘a physical or mental impairment that has a substantial and long-term negative effect on your ability to do normal daily activities’.
(Definition of disability under the Equality Act 2010’ – GOV.UK)
Types of disability discrimination
The law recognises that there are different types of disability discrimination, as with other forms of discrimination. Those for disability include;
- Direct discrimination
- Indirect discrimination
- Discrimination arising from disability
- Harassment
- Victimisation
- Failure to make reasonable adjustments
Looking at each of these in turn:
1. Direct discrimination
Direct discrimination occurs where you are being treated less favourably than other colleagues who do not have a disability, because of your disability. Common examples that we see of this include: not employing you, denying you promotions or training, giving you less favourable terms and conditions or even dismissing you – just because you are disabled.
- Indirect discrimination
Indirect discrimination is where you are adversely affected compared to other colleagues who are not disabled, by a policy or practice adopted. This differs from direct discrimination as the policy or practises adopted are permissible if the employer can show that it can be ‘objectively justified’.
An example of his form of discrimination, taken from the Equality and Human Rights article on, is: ‘Disability Discrimination’:
‘A job advert states that all applicants must have a driving licence. This puts some disabled people at a disadvantage: they may not have a licence because, for example, they have epilepsy.
If the advert is for a bus driver job, the requirement will be justified. If it is for a teacher to work across two schools, it will be more difficult to justify.’
3. Discrimination arising from disability
This form of discrimination will occur because of certain needs that you may have arising from your disability, rather than from the disability itself.
An example of this would be that you may need an assistance dog, regular absences form work for appointments or more frequent toilet breaks. Discrimination arising from your disability would then occur if your employer makes life difficult because of these needs.
However, your employer can only be liable for this type of discrimination if they knew or should have known about your disability.
This type of discrimination may be lawful if your employer can show that this treatment is proportionate. (In plain English, this justification means that the goal achieved by the discrimination must outweigh the disadvantage incurred by the discrimination)
4. Harassment related to disability
This type of discrimination is when you are treated in a way which makes you feel offended, humiliated, intimidated or belittled, because of your disability, or creates an environment which makes you feel any of those feelings.
An example of this type of discrimination is if you have an evident physical disability, you may be taunted because you may not be able to do things as quickly as your able-bodied colleagues or being called unpleasant names referring to your disability.
This form of harassment is of growing concern (see our article on bullying and harassment). However, claims of harassment relating to your disability only succeed where your employer has failed to do everything possible to prevent the perpetrator(s) from harassing you.
5. Victimisation
Victimisation is where you are single out for bad treatment (for example, being refused promotion or threatened with dismissal) because you have made a complaint about disability discrimination in your workplace, or because you are thought to be assisting with someone in their disability claim.
6. Failure by employers to make reasonable adjustments
The law requires employers to accommodate employees with a disability through making reasonable adjustments, to prevent disability discrimination.
The three types of adjustments are:
- To property and premises e.g. installing a lift, ramp or handrails in the office
- To provide auxiliary aids e.g. provision of alternative equipment like a large computer screen or an ergonomic chair
- To practices and policies e.g. changing the employee’s job description to vary duties
The first two types of adjustments will depend on the circumstances of each case and what is reasonable in terms of the nature of the adjustment, the size and resources available to the employer, the costs involved etc. What is reasonable for one employer in one set of circumstances will not necessarily be the same for other employers.
It has also long been established that employers are obliged to make reasonable adjustments to job roles and descriptions, within reason.
For example, if there are aspects of your job that you are unable to perform due to your disability, then your employer is obliged to consider adjustments to the job description, removing duties that you can’t perform or to consider offering another, more suitable, role within the organisation.
Reasonable adjustments to job roles and pay protection: new case law
The law surrounding whether ‘pay protection’ is a reasonable adjustment has been less clear until recently. This includes whether an employer who moves an employee to a new post due to the employee’s disability will be required to pay the employee the same salary as the old post, regardless of the lower salary in the new role.
The Employment Appeal Tribunal recently ruled that, in these circumstances, the employer should continue to offer pay protection to that employee. Implementing a wage cut where an employee is moved to a lower-paid role due to their disability, is, therefore, disability discrimination. The Tribunal held that there was no reason in principle that pay protection could not be considered a reasonable adjustment, however, there was no indication of whether pay protection should carry on permanently.
This case was ruled according to the circumstances of the case, so a change in circumstances could mean that the adjustment is no longer a reasonable obligation on the employer.
Advice for disabled employees needing reasonable adjustments
Firstly, you should ensure that your employer is made aware of your disability. Where they are not aware of your disability, they cannot reasonably be held responsible for failure to make reasonable adjustments. Not every condition constitutes a disability for the purposes of this article.
Next, you should assess the difficulties that you are facing in your role or workplace due to your disability, considering the adjustments or options for what would alleviate those difficulties. For example, you could have a condition that makes it difficult for you to comfortably use office equipment, and that you need ergonomic equipment.
Other examples include that you need adjustments to your employer’s attendance policies or targets as your condition means that you may require more absences than your non-disabled colleagues, and so you are not subject to the same process as your other colleagues for absences.
Once you have informed your employer of your disability and have proposed any solutions, it will be for them to make a decision. Good employers would then refer your propositions to an occupational health assessor for a medical opinion on your condition and to advise what steps would constitute a reasonable adjustment.
Where your employer does not seek medical assessment, or if you disagree with the outcome of the assessment, then you could seek a medical opinion of your own accord to support your propositions, for example, from your GP. Where there is a conflicting opinion between the two medical assessments, your employer will have some leeway to choose which opinion they follow.
Organisations such as Disability Rights UK and the Equalities and Human Rights Commission can provide useful information and signposting if you require support and guidance. Under the Access to Work, employees can also secure funding, subject to assessment, to assists their employer in making reasonable adjustments.
If you are having problems at work due to your disability…
In the first instance, you should raise a grievance to formally set out your complaints if your employer fails to acknowledge or address your situation. Most employers have a written grievance and equalities policy that will set out the complaints process that you should follow.
If despite being made aware of your disability, your employer fails to make reasonable adjustments, you also have the option to pursue legal action through the employment tribunal for disability discrimination. A claim like this must be made within 3 months less one day from the date of the discrimination. In the case of your employer’s failure to make reasonable adjustments, the deadline will be 3 months less one day from the date that the employer decided not to offer you the reasonable adjustments.
Raising a grievance about the circumstances will not suspend this deadline, so you must not delay legal action even when you have started an internal complaint.
Same Difference 