Disability discrimination
| Contents |
|---|
Disabled workers enjoy the same anti-discrimination protection as other workers, but they have additional rights under the Equality Act 2010 (EA).
All aspects of employment are covered by the EA including:
- Application forms
- Interview arrangements
- Proficiency tests
- Job offers
- Terms of employment
- Promotion, transfer or training opportunities
- Work-related benefits such as access to recreation or refreshment facilities
The definition of a disability is a legal and not a medical definition. This means that sometimes a medical condition may be regarded as a disability by a doctor, but will not be a disability for the purposes of disability discrimination.
To be protected by the EA, you must show that you have a physical or mental impairment which has a long term and substantial adverse effect on your ability to do your day-to-day activities.
The following is a non-exhaustive list of conditions that are regarded as impairments, which include:
- Sensory impairments – such as total or partial loss of sight or hearing
- Fluctuating or recurring conditions such as rheumatoid arthritis, ME, depression and epilepsy
- Progressive conditions such as lupus, dementia and muscular dystrophy
- Organ specific impairments such as asthma, heart disease, stokes and thrombosis
- Developmental conditions such as autism and dyslexia
- Impairments caused by injury to the body or brain
- Mental health conditions or illnesses such as schizophrenia, eating disorders, depression and self harming
- Conditions related to learning difficulties
Some physical conditions can result from an underlying mental condition, or can cause a mental condition, such as depression.
Sometimes it can be difficult to identify whether a medical or physical condition can be classified as impairment under the EA and you should take legal advice if you are unsure.
Unless the condition is already recognised in law to be a disability, you must prove that it has a 'substantial adverse effect' on your day to day activities. This will usually be determined by the facts surrounding your particular circumstances. However, note that:
- A progressive condition must have some adverse effect now, and be likely in the future to have a substantial effect
- If a condition has periods of remission then you must prove that it is likely to recur. 'Likely' means 'could well happen' in this context.
The impairment must have a long term effect on you as of the date of any alleged act of discrimination. 'Long term' includes impairments that:
- Have lasted at least 12 months
- Are likely (i.e. more probable than not) to last for at least 12 months
- Are likely (i.e. more probable than not) to last for the rest of a worker's life
- Are likely (i.e. could well happen) to recur if in remission
This can include day-to-day activities like using a telephone, reading or using public transport.
Where measures are taken to treat or correct an impairment that would be likely to have a substantial, adverse effect on the ability of a person to carry out normal day-to-day activities, that impairment is still treated as amounting to a disability. For example epilepsy, which although controlled by medication, may still amount to a disability.
This means that, because you are disabled, you are treated less favourably than another worker who is not disabled but has the same (or at least not materially different) abilities as you. For example, a job advert might state that disabled applicants will not be considered. This might give a disabled applicant, who is otherwise qualified and able to do the job, a claim for direct disability discrimination.
The law also extends to protecting you from direct disability discrimination if your employer treats you less favourably, based on:
- Their perception of whether you have a disability, regardless of whether or not the perception is correct. For example, if you are refused a promotion because your employer believes you to be dyslexic but your colleague is promoted, whose circumstances are similar to yours, except that your employer doesn't have the same perception about them, you may have been subjected to direct disability discrimination.
- The disability of another person (also known as discrimination by association). For example, if you are being discriminated against because you have to care for a disabled family member, even though you are not disabled yourself, or you refuse to comply with instructions that would require you to treat someone less favourably because of their disability. For example, if a managing director exerts pressure on a line manager to dismiss a worker because of their disability. The pressure on the line manager will amount to unlawful conduct
Your employer cannot defend a claim of direct disability discrimination by justifying it (arguing that their actions were a proportionate means of achieving a legitimate aim).
This will occur where your employer equally applies a formal or informal provision, criteria or practice to all workers in the workplace that puts workers with a disability at a particular disadvantage when compared with other workers. A worker within the disadvantaged group must also actually suffer that particular disadvantage.
It does not matter whether or not this has been done intentionally.
Your employer can defend against indirect discrimination claims by justifying the use of the unlawful practice, provisions or criteria, if it can show that its application is a proportionate means to achieving a legitimate aim.
This protects workers from being treated unfavourably due to something arising as a consequence of their disability when compared with another worker who does not have the disability. The reason does not have to be the disability itself and can include something related to it, such as an aid or device (e.g. the use of a wheelchair) or the amount of sick leave taken in a year.
This means comparing the treatment of a disabled worker with how a person without the disability would be treated. For example, a disabled worker who is dismissed because he is regularly absent from work due to illness would be compared to a non-disabled worker who was not absent from work. He will be able to claim discrimination arising from a disability because he is being discriminated against for a reason (his absence from work) which relates to his disability.
This type of discrimination is unlawful, where an employer either knows or could reasonably be expected to know, that the employee has a disability.
Employers can defend claims by justifying their actions, if they can show that its application is a proportionate means to achieve a legitimate aim.
An employer would, for example, be able to justify removing a diabetic worker from driving duties for the material and substantial reason that he would pose a risk to himself and other road users.
Under the EA, your employer has a duty to make 'reasonable adjustments' to ensure that workplace provisions, criteria, practices or any physical features of the workplace do not put you at a substantial disadvantage compared to non-disabled workers. Examples of the sort of adjustments your employer should consider, in consultation with you include:
- Allocating some of your work to someone else
- Transferring you to another post or another place of work
- Swapping roles with another worker
- Retiring you on medical grounds and then re-employing you in another role
- Making adjustments to the buildings where you work
- Being flexible about your hours – allowing you to have different core working hours and to be away from the office for assessment, treatment or rehabilitation
- Providing training
- Providing modified equipment
- Making instructions and manuals more accessible
- Providing a reader or interpreter
You can play an active role in discussing these arrangements with your employer. You might also want to encourage your employer to speak to someone with expertise in providing work-related help for disabled people.
The Equality and Human Rights Commission (see below) provides detailed guidance and advice for you and your employer about whether an adjustment is reasonable or not. Issues to consider include:
- How effective will an adjustment be?
- Will it mean that your disability is slightly less of a disadvantage or will it significantly reduce the disadvantage?
- Is it practical?
- Will it cause much disruption?
- Will it help other people in the workplace?
- Is the cost prohibitive?
Harassment is unwanted conduct towards a worker by an employer, another worker or a third party (such as customers), because of that worker's actual or perceived disability, or association with someone with a disability. This applies to any conduct that violates a worker's dignity or creates an intimidating, hostile, humiliating, degrading or offensive environment, even if it was not intended as such.
For example, if the unwanted conduct relates to the disability of your partner or friends, it may still be unlawful harassment if you find it to be degrading or offensive.
If it is reasonable that the unwanted conduct has had an intimidating or humiliating effect on you, then you may have a harassment claim against your employer (even where someone didn't intend to harass you). Note that you will not be protected if you are over sensitive and unreasonably take offence to an innocent comment.
Workers who are not the subject of the unwanted conduct will also be able to make harassment claims for behaviour that they find offensive, even if they themselves do not have a protected characteristic.
An employer also has a duty to protect a worker from any harassment by a third party, such as from a client or customer, which they may be subjected to in the course of their employment. The employer must take reasonably practicable steps to prevent such harassment, but will not be liable for conduct which they are unaware of. The employer can only be held liable if the worker has been subjected to such harassment on at least two other occasions. It need not be the same person causing the harassment on each occasion.
Employers will be liable for any acts of harassment undertaken by their employees in the course of their employment – whether they knew about it or not – if they fail to take reasonable steps to prevent it. 'In the course of employment' means 'done to you whilst at work' or 'done to you while 'in a workplace-related environment'. Employers can't defend a claim of harassment by showing that they did not authorise it or on the grounds that the actions were reasonable or warranted.
An employer can, however, escape liability for harassment, if it took reasonably practicable steps to prevent it.
Victimisation happens when you are being treated less favourably because:
- You have asserted your rights not to be discriminated against on the basis of your disability by making a complaint about disability discrimination
- You gave evidence or information in a complaint of disability discrimination
- You take any other action under the EA
- You have alleged that your employer or another worker has contravened the disability discrimination legislation
- Your employer believes that you have done or may do any of these things
If an employer reasonably thinks that a group of its workers who share a protected characteristic (race, age, sex, sexual orientation, marital status, gender reassignment, pregnancy and maternity, disability or religion or belief) either...
- suffer a disadvantage connected to their protected characteristic,
- have needs that are different from the needs of those who do not have their protected characteristic, or
- have a disproportionately low participation in an activity, such as partaking in training activities, doing particular work or filling particular posts in an employer's workforce,
Employers are allowed to provide special training to members of the group. They can also encourage members of the group to apply to do particular work or fill posts (for example, by saying that applications from them will be particularly welcome).
This does not mean that employers can discriminate in favour of the members of the group when it comes to choosing people to do the work or fill the posts, unless they meet the circumstances described below under 'Positive action in recruitment and for promotions', as that could be unlawful discrimination.
Positive action is not the same as 'positive discrimination', which is where members of a particular group who have a protected characteristic are treated more favourably regardless of the circumstances.
The Equality Act 2010 makes it lawful for employers to take positive action when recruiting and making internal promotions in order to overcome a disadvantage connected with a protected characteristic or where the inclusion of people with the protected characteristic in a particular activity is disproportionately low. Employers will be able take positive action where all of the following apply:
- There are two equally qualified candidates to choose between
- An employer does not have a policy of treating persons with the protected characteristic more favourably
- Positively discriminating is a proportionate means of achieving a legitimate aim.
Further guidance on positive action can be obtained from the Equality and Human Rights Commission.
Positive discrimination is unlawful except if used when recruiting or promoting individuals in the limited circumstances described above.
If you think that you're suffering disability discrimination at work, you should talk to your employer and explain why you feel you are being discriminated against. If necessary, put your complaint in writing. An employee representative (such as a trade union official) may be able to help you.
If this doesn't help, you may need to make a complaint using your employer's grievance procedure. If your employer doesn't have a grievance procedure, you should set out your complaint in a letter and hand it to your line manager. If your line manager is the problem, then hand your letter to your line manager's supervisor. Your employer should then arrange a grievance meeting with you. If the outcome of the meeting is unsatisfactory, you have the right to appeal to a manager who was not previously involved in your grievance. For more information, see our article on grievance procedures in England, Wales and Scotland.
If you are unhappy with the outcome of your appeal, you may be able to take your claim to an Employment Tribunal. You should, however, take legal advice prior to proceeding. You'll need to do this within three months of the act of discrimination taking place. If the discrimination extends over a period, you must bring your claim within 3 months from the end of that period.
The Equality and Human Rights Commission (EHRC) has wide-ranging powers and can take legal action on your behalf. They promote equality and fair treatment of employees, customers and the users of services. It is also a good source of advice if you feel you may have been discriminated against at work or elsewhere.