Disability discrimination in the workplace is prohibited by the Equality Act (2010). Our expert Employment Law solicitors answer some frequently asked questions about discriminating against disability at work.
A “disabled person” is someone with ‘a physical or mental impairment which has a ‘substantial’ and ‘long-term’ adverse impact on their ability to carry out normal day-to-day activities.
There is no definitive list of what conditions are covered but it includes mental health conditions such as depression and anxiety as well as physical and sensory conditions. Those registered as blind, severely sight impaired, sight impaired or partially sighted are deemed disabled without the need to prove the stages of the definition.
HIV, cancer and multiple sclerosis automatically qualify from the point of diagnosis.
No, but it may be necessary for you to do so if you require reasonable adjustments to any interview or assessment process.
In most cases it is unlawful for an employer to discriminate against a disabled person in the selection process.
All reasonable measures should be considered to allow a disabled person to access the workplace and to do the job in question in the same way as non-disabled person. However, there may be specific requirements of certain roles that prevent a disabled person from fulfilling the role, for example requiring an airline pilot to have good eyesight.
There is no duty on an employee to disclose details of their disability to their employer. However, employees should note that an employer is only under a duty to make reasonable adjustments once they are aware or ought reasonably to have been aware that an employee has a disability.
An employer has a duty to make reasonable adjustments in the workplace to ensure that a disabled person is able to access employment in the same way as non-disabled persons. Examples of reasonable adjustments could include making adaptations to the physical workplace premises including the worker’s specific workstation, providing a parking space closer to the office, allowing the worker to work flexible hours, redeploying a worker to an alternate role or providing a reader or interpreter.
A failure to make reasonable adjustments is a form of disability discrimination. However, an employer can refuse to make specific adjustments if it would not be reasonable for them to do so. What is reasonable will depend on a variety of factors, such as the size of the employer and the finances available to the organisation as well as the complexity of the adjustments requested.
Your employer should consider any advice from your GP or occupational health as to the adjustments which would be necessary to address the disadvantage you have. Ultimately it is their call as to what is reasonable for the company to accommodate and, if you disagree, ultimately it would be up to an employment tribunal to determined what was reasonable.
No – an individual can not only be discriminated against because of a disability they have but they can also suffer discrimination ‘by association’ if they are treated less favourably as a result of them being associated with someone who has a disability.
This could, for example, include instances where you have been denied flexible working arrangements because you have caring responsibilities for somebody who suffers from a disability. If you can show that, had you not been associated to someone with a disability, you would have been granted the flexible working request, then this could amount to claim for discrimination.
If you believe you have been treated less favourably as a direct result of disability, then you may have a claim for direct disability discrimination. For example, if an employer refuses to employ you or consider you for a promotion, specifically because of your disability, despite you being the best candidate for the role.
Indirect disability discrimination occurs when a provision, criterion or practice, is apparently neutral but has a detrimental effect on employees who share a particular disability, whether or not this effect is intentional. For example, a requirement that employees hold a driving licence may disadvantage employees with epilepsy. Whether or not this will be unlawful will depend on whether the employer can justify the requirement, which might be the case where the job was to drive a supermarket delivery van.
This is a strand of discrimination which is exclusive to disability. An example of this would be dismissal (unfavourable treatment) due to disability-related sickness absence. This does not mean that an employer can never dismiss a disabled employee whose disability means that they have frequent or prolonged absences from work but the employer will have justify their decision.
Victimisation occurs when an individual suffers detrimental treatment as a result of making a claim or an allegation of discrimination. For example, if you have previously raised concerns about discrimination in the workplace and you are now being denied the opportunity to be considered for a promotion, this could amount to a claim for victimisation. Victimisation can occur regardless of whether or not the historical claim was proven or not.
Harassment is conduct which creates an intimidating, hostile, degrading, humiliating or offensive environment. It does not necessarily need to be verbal comments made and could consist of other actions, such as written communications such as emails or group WhatsApp message. It could also include being ignored in the workplace or consistently delegated an unreasonable proportion of menial duties.