Disability discrimination in the workplace
According to reported statistics, 3 out of 4 disabled people have experienced negative behaviours in the last 5 years due to their disabilities. Over 40% of these experiences occurred inside the workplace. Clearly it is vital that employers and colleagues get a better understanding of disability discrimination in the workplace and how it can be avoided.
One place to begin is with this brief overview of the types of disability discrimination as described by the Equality Act 2010.
Equality Act 2010
Disability is one of the 9 protected characteristics set out by the Equality Act 2010.
The Act defines 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.
In order to meet the legal definition of a disability you should consider seeking legal advice as this is a complex area of the law. If you do not meet the legal definition of a disability you will not be able to claim disability discrimination.
Types of disability discrimination
The Equality Act specifically protects disabled employees from different types of discrimination. These are:
Direct discrimination
This is one of the most obvious ways that discrimination can occur. To explain it simply, direct discrimination is when you personally are treated worse than other people because:
You have a protected characteristic
People believe that you have that characteristic
You are connected with someone who has that characteristic
For example, it is direct discrimination to offer a position to an interviewee only to rescind the offer when they disclose their disability.
Avoiding this type of discrimination can be possible with measures such as clear anti-discrimination policies, office-wide training regarding employment law and discrimination, and equality and diversity training for all staff.
Indirect discrimination
In contrast, indirect discrimination is a policy or procedure that may negatively and disproportionately impact disabled people. Some policies could put some disabled people at a disadvantage. Employers should assess whether their policies and procedures are truly necessary.
There are some circumstances in which indirect discrimination can be justified. For example if the employer can prove that this process is necessary to carry out the job.
Failure to make reasonable adjustments
Another way that disabled people may be discriminated against is if an employer fails to make reasonable adjustments that will remove or reduce a disadvantage when an employee is doing or applying for a job.
Reasonable adjustments can vary. A few examples include changing:
The workplace (e.g. creating an accessible car parking space close to the entrance of an office)
Equipment or services provided (e.g. providing supportive keyboards)
The way things are done (e.g. changing shift patterns)
Format accessibility (e.g. providing documents with large fonts)
If the employer cannot cover the costs of an adjustment or they are otherwise unable to provide a specific accommodation, they should attempt to find another way to support the disabled employee.
Discrimination arising from disability
This type of discrimination takes place when the results of a disability, rather than a condition itself, causes an employee to be treated unfavourably. For example, if an employee is told they have too many absences due to their need for time away from work to attend hospital appointments.
A good way for you to avoid this issue is to communicate and get a better understanding of the results of your employee’s disabilities, and provide reasonable adjustments where necessary.
Harassment
Harassment occurs when you engage in unwanted behaviours related to an employee’s disability. Specifically, these behaviours have the purpose or effect of violating the employee’s dignity or creating an intimidating, humiliating or offensive environment for them. They can include offensive jokes or gestures, verbal abuse, and abuse of authority by senior members of staff.
One way to help avoid this is through your anti-discrimination policy. This should make it clear to your employees that behaviours such as these will not be tolerated, and that you will take swift and decisive action to ensure that it does not repeat.
Victimisation
Finally, disabled employees can be discriminated against through victimisation. This arises when the employee is treated unfavourably because they are involved in some capacity in a discrimination complaint. Examples of victimisation can include the employee being labelled as difficult, denying opportunities to advance their careers, or being left out.
One way to prevent victimisation is to deal with all grievances promptly and appropriately, as well as draw attention to this type of disability discrimination in staff training.
Lawful discrimination
There are instances when discrimination is lawful - when a disabled person is treated more favourably than someone who is not. This could be through positive action (e.g. increasing the number of disabled people in managerial roles because they are underrepresented in senior positions) or occupational requirement.
After reading this overview of the types of disability discrimination, you should start to have a better understanding of how these issues can be managed or avoided. If you would like to have a discussion about a specific issue inside your workplace, we encourage you to get in touch with us.
Disability discrimination is a very complex area of the law governed by legislation and case law. You should consider seeking legal advice to discuss whether the facts of your case meet the legal requirements.
The above information is correct as of August 27th 2022 and may be subject to change. The above does not constitute legal advice. Legal advice should be sought regarding your individual circumstances.