Overview
- The Equality Act 2010 prohibits discrimination against disabled people. Disability is one of the nine ‘protected characteristics’ under the Act.
- The law covers recruitment, selection, and promotion and applies to contract workers as well as directly employed workers. It also applies to dismissal, including constructive dismissal.
- Discrimination or harassment of an employee on the grounds of someone else’s disability or a perceived disability is also covered and employees are protected from discrimination on grounds of a past disability.
- Employees are protected from harassment and victimisation because they have brought a claim or made a complaint of disability discrimination.
- Post-termination discrimination is also covered - it is unlawful to discriminate against or subject a disabled person to harassment where the discrimination/harassment arises out of and is closely connected to the employment relationship, e.g. providing references.
- Once it's established that a person is disabled, an employer (including a prospective or ex-employer) is under a duty to make reasonable adjustments to accommodate that person's disability.
- The provisions of the Equality Act 2010 apply to England, Scotland and Wales. Separate (and similar) legislation applies to Northern Ireland.
Definition of disability
- To be protected, an individual must be 'disabled'. This means they must have:
- a physical or mental impairment
- which has a substantial and long-term adverse effect
- on their ability to carry out normal day-to-day activities
- The expression 'physical or mental impairment' is only partially defined. The fact that the mind or body is not functioning normally is all that is required and it is not legally necessary for a name to be put to the condition.
- Certain conditions are excluded. For example, dependency on alcohol, tobacco, drugs and other substances are not physical or mental impairments but the consequences of such dependency may be. A tendency to set fire, to steal, to physical or sexual abuse of others, to exhibitionism and to voyeurism are excluded from protection. Hay fever is also excluded.
- It is up to the employee to provide the evidence that they have a disability.
- The substantial adverse effect must be long term. This means that it is likely to last or has already lasted 12 months or will last for the rest of the person's life. However a person does not have to be disabled for as long as a year to claim, provided that the disability is likely to last that long or is recurring.
- If an impairment is 'recurring' it will be regarded as 'long term' if the substantial adverse effect is likely to recur.
- The question of whether an impairment has a substantial adverse effect must be assessed on the basis of the individual's state of health if the individual were not taking any drugs or other medical treatment. The benefit of counselling should also be discounted in assessing the effect of an illness on the individual's state of health.
- Anyone who has cancer, MS or HIV infection is deemed to have a disability from the point of diagnosis and do not have to satisfy the requirements of the statutory definition. Also, anyone who is certified or registered as blind or partially sighted is automatically covered.
- Comprehensive guidance can be found in Guidance on Matters to be Taken into Account in Determining Questions Relating to the Defintion of Disability.
Direct disability discrimination
- Direct disability discrimination occurs when one person is treated less favourably than another person is, or would be, treated because of the protected characteristic, i.e. disability
- Someone claiming direct discrimination must be able to point to a comparator - someone without a disability who was treated differently. If there is no actual comparator, a hypothetical one can be used.
- The definition of direct discrimination is wide enough to encompass discrimination by association. For example, if a job applicant is refused a job because he or she had a disabled child, this would be direct discrimination, as the employer’s treatment of the applicant is ‘because of’ the protected characteristic of disability, albeit the child’s rather than the applicant’s.
- Direct discrimination also encompasses discrimination where the employer is mistaken in thinking that the person is disabled. For example, if an employer received erroneous information and used it in making an adverse decision in relation to a person, the less favourable treatment would still be ‘because of’ the protected characteristic of disability, even though the person was not in fact disabled.
- Unlike indirect disability discrimination and discrimination arising from disability, direct disability discrimination can never be justified.
Discrimination ‘arising from’ disability
- To get around the problems posed by the pre-1 October 2010 formulation of disability-related discrimination (highlighted by the 2008 Malcolm case), a new form of discrimination – discrimination ‘arising from’ a disability – has been introduced that does away with the need for a comparator. This replaces the previous concept of disability-related discrimination.
- This type of discrimination will occur where a person (A) discriminates against a disabled person (B) because of something arising in consequence of B’s disability.
- An employer can put forward a defence of justification but the threshold has been raised considerably. An employer must be able to show that its treatment of the person was ‘a proportionate means of achieving a legitimate aim’, the same as that for indirect discrimination in relation to all protected characteristics. But in many respects discrimination ‘arising from’ disability will be much easier to establish than indirect discrimination.
- A typical example of this type of discrimination would be dismissing someone because of a poor attendance record when their absences were a consequence of a disability.
- An employer will have a defence to a claim if it did not know and could not reasonably have been expected to know that the person had a disability.
- The new concept of discrimination arising from a disability will overlap with the extension of the concept of indirect discrimination to the protected characteristic of disability.
Indirect disability discrimination
- Indirect disability discrimination, which did not exist under the Disability Discrimination Act, has been introduced as a new concept.
- Indirect disability discrimination applies where a ‘provision, criterion or practice’ puts or would put people of the claimant’s group, and the claimant themselves, at a particular disadvantage, unless it can be shown to be a ‘proportionate means of achieving a legitimate aim’.
- In disability cases, the group must have (or have had) the same disability. A claimant does not need to show that disabled people as a whole suffer a particular disadvantage. What matters is that people with the same disability as the claimant suffer the disadvantage.
- Unlike discrimination arising from a disability, there is no ‘lack of knowledge’ defence available to an employer that did not know the individual was disabled or might be adversely affected.
- The considerable degree of overlap between indirect disability discrimination and discrimination arising from disability is likely to lead to claimants alleging both in relation to any complaint, so as to improve their overall chances of succeeding.
Harassment
- It is unlawful for an employer to harass someone they employ or who has applied for work.
- Harassment is unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.
- The intention of the harasser is irrelevant if in fact the above consequences were the effect of what the employer did or said.
- Employees can complain about behaviour that they find offensive even if it is not directed at them.
- An employer can be held liable for harassment by a third party (e.g. a customer or contractor over whom the employer does not have direct control) if harassment occurred on at least two previous occasions and the employer failed to take reasonably practicable steps to stop it.
- The test for assessing the effect of the harassment is both subjective and objective; regard must be had to the perception of the disabled person as well as whether it should reasonably be considered to have such an effect.
Victimisation
- It is unlawful for an employer to victimise anyone, disabled or not, because they have applied for employment or are in employment.
- Victimisation means treating someone less favourably for any of the following reasons:
- the person has brought proceedings against the employer or any other person under the Equality Act
- the person has given evidence or information in connection with such proceedings, irrespective of who those proceedings were brought by
- the person has otherwise done anything under the Equality Act in relation to the employer or to any other person
- the person has alleged that the employer or any other person has contravened the Equality Act (even if the allegation does not expressly state that the Act has been contravened)
- So, for example, it would be unlawful for an employer to treat an employee less favourably because he had supported a colleague’s complaint of disability discrimination in a grievance hearing or at a tribunal.
- The obligation not to victimise continues after the employee has left the employment if the discrimination arises out of the employment relationship. So, for example, it would be victimisation to refuse to give someone a reference (or to give them a less favourable reference) because he or she had complained of disability discrimination, even if that complaint had proved unfounded.
Duty to make adjustments
- A key feature of disability discrimination law is the duty to make ‘reasonable adjustments’. This quasi-positive action duty requires an employer to alleviate the effects of provisions, criteria and practices (PCPs), the non-provision of auxiliary aids or the physical features of the workplace on disabled employees and job applicants. Unlike other areas of discrimination law, this duty can involve an employer treating a disabled person more favourably that he would treat others.
- The duty to make reasonable adjustments comprises 3 requirements:
- where a PCP puts a disabled person at a substantial disadvantage, an employer must take such steps as are reasonable to avoid the substantial disadvantage
- where a disabled person would, but for the provision of an auxiliary aid (e.g. text to speech software), be at a substantial disadvantage, an employer must take such steps as are reasonable to provide the aid
- where a physical feature (e.g. emergency escape route) puts a disabled person at a substantial disadvantage, an employer must take such steps as are reasonable to avoid the disadvantage
- The duty to make reasonable adjustments is well covered in the EHRC’s Statutory Code of Practice on Employment.
- The duty to make adjustments should be considered at every stage of employment, i.e. during the interview and selection processes; terms and conditions of employment (e.g. setting of pay, contractual arrangements and working conditions); training, reference manuals and equipment; promotion; transfers and redundancies; and dismissal and retirement.
- Employers are not required to do something that would not meet the test of reasonableness but, if an adjustment is reasonable, an employer must make it.
- What is reasonable depends on many things, e.g. cost, the resources available to the employer, the disruption it will cause, and the effect it have in removing or preventing any disadvantage. The cost of making adjustments cannot be passed on to the employee.
- Most adjustments will not involve a great deal of cost. An employer with larger resources will be expected to go further than an employer with modest resources. There is financial assistance available via the Access to Work scheme.
- There is no general obligation to create a new post for a disabled worker who becomes unable to do his existing work. Employers may however have to give disabled staff priority over those seeking redeployment as a result of redundancy.
- An employer is not obliged to find work on the same grade or to ‘red circle’ a disabled employee's post to maintain their previous earnings in their new job - although in appropriate circumstances it could be seen as a reasonable adjustment to make.
- Case law has confirmed that it will be very rare indeed for the duty to make adjustments to entail paying a disabled absent employee more than a non-disabled absent employee - unless the employee’s condition had worsened as a result of the employer's neglect of possible adjustments - in which case such an alteration to contractual sick pay may be appropriate.
- A disabled person who wants to complain that his or her employer is guilty of disability discrimination, need not compare their treatment with the treatment of a worker who is not disabled, i.e. cases of reasonable adjustments do not require claimants to identify comparators.
- The law (the old Disability Discrimination Act) used to provide a non-exhaustive list of possible adjustments. This did not survive the transition to the Equality Act 2010. However, the Employment Code does provide a similar list:
- making adjustments to premises
- providing information in accessible formats
- allocating some of the worker’s duties to another person
- transferring the worker to fill an existing vacancy
- altering the worker’s hours or training
- assigning the disabled person to a different place of work or training
- allowing the disabled person to be absent during work or training hours for rehabilitation, assessment or treatment
- giving, or arranging for, training or mentoring (whether for the disabled person or any other worker)
- acquiring or modifying equipment
- providing a reader or interpreter
- modifying procedures for testing and assessment
- allowing a disabled employee to take a period of disability leave
- modifying disciplinary or grievance procedures
- adjusting redundancy selection criteria
- modifying performance-related pay arrangements
- The duty to make adjustments does not arise if the employer neither knew nor could be reasonably expected to know that the person had a disability and that he or she was likely to be placed at a substantial disadvantage by that disability.
- The disability discrimination section of Case Digests reports and analyses cases on this constantly evolving area of equality law.
- The disciplinary issues section of Policies and Documents has a model policy for adjusting disciplinary/investigatory hearings for disabled employees.
Justification
- Discrimination arising from a disability and indirect disability discrimination can be justified by an employer. Direct disability discrimination can never be justified.
- The key issue for employers is their ability to show that their less favourable treatment of a disabled person is justified on objective grounds. It must be shown that any treatment was ‘a proportionate means of achieving a legitimate aim’ – by no means an easy hurdle to surmount.
- If an employer fails to make reasonable adjustments, it cannot justify the treatment unless it can also show that making reasonable adjustments would have made no difference because the nature of the employee’s disability meant that he would still have been unable to work.
Pre-employment health questions
- To try and eradicate discrimination at the recruitment stage, it is unlawful for an employer to ask about the health of a job applicant before offering work to, or short listing, that person.
- This covers both written and oral questions so those conducting job interviews should avoid the subject of health or fitness.
- The prohibition on pre-employment health questions is not limited to questions directed at the job applicant. A request for a reference sent before a job offer is made must also avoid asking such questions. The typical question of ‘how many days did you have off sick last year?’ is not permissible.
- Asking questions is not of itself disability discrimination, but if an employer acts on a candidate’s answer, it may be. Enforcement of this prohibition lies with the Equality and Human Rights Commission and a job applicant does not have a free-standing right to claim should an employer ask prohibited questions.
- Certain questions will not breach the prohibition on pre-employment health enquiries. For example, an employer can enquire as to whether or not the applicant will be able to undergo an assessment (e.g. a job interview or sitting a test), or whether or not the employer will need to make any reasonable adjustment in connection with the assessment.
- If an employer asks an unlawful question about health during the recruitment process, and the applicant does not get the job, in any subsequent disability discrimination claim the burden of proof will be on the employer to show that there was no discrimination (i.e. provide another reason why the applicant was not successful).
- Employers can ask health-related questions after a job offer has been made. For example, the prospective employee can be asked to undergo a medical after the employer has made a conditional job offer.
Remedies
- An employee who has been the subject of disability discrimination can apply to a tribunal within 3 months of the date of the discrimination.
- There is no length of service qualification.
- A questionnaire procedure is available to aggrieved staff who want to put questions to their employer before starting tribunal proceedings.
- A tribunal has various options should it find discrimination has been proved. It can:
- make a declaration about the rights of the disabled employee
- order the employer to pay compensation – and this is uncapped, or
- make a recommendation which will benefit the employer’s wider workforce with a view to preventing similar discrimination in the future. This could include recommending the introduction of an equal opportunities policy, the retraining staff or an instruction for the employer to publicise its selection/promotion criteria.
Specialist organisations
- RNIB - supporting blind and partially sighted people
- RADAR - the disability network
- MIND - National Association for Mental Health
- SCOPE - for people with cerebral palsy
- MENCAP - the voice of learning disability
- RNID - the Royal National Institute for the Deaf and Hard of Hearing
- Employers' Forum on Disability (EFD)
- Diabetes UK
- Freeney Williams Ltd
- Phil and Friends Ltd
Resources
Access to Work Scheme
Business Link
CIPD
- Disability and Employment factsheet
- Managing and Supporting Mental Health at Work: disclosure tools for managers
Equality and Human Rights Commission
TUCOthers
- WorkLife: excellent website packed full of useful information on how to help people with long-term health conditions remain in work
- Disability Clearkit - recruiting and retaining disabled talent
- Disability Standard - on-line management tool and benchmark from the to enable businesses to measure and improve on performance for disabled customers and employees
- MacMillan Cancer Support - excellent toolkit to help employers to support staff with cancer as well as their carers
- Evenbreak - not-for-profit, specialist job board for disabled job seekers which brings together employers who actively want to get involved in employing disabled people and disabled job seekers
Subscribers only - the employment team at 
