Disability Discrimination

By Andrew Willis
01 Aug 2019

The Equality Act 2010 states that disability discrimination is against the law. Disability discrimination in the workplace can happen in six ways:

We will go through all six types in this article.

Disability Discrimination Legislation

The Equality Act 2010 doesn’t apply to Northern Ireland for disability discrimination cases—only England, Wales, and Scotland. Northern Ireland still uses the Disability Discrimination Act 1995.

The Equality Act considers a disability to be a physical or mental condition that has some kind of substantial and long-term negative effect on how a person goes about their everyday life—this includes some of the basics of work, such as sitting in a chair or using a computer.

Conditions like cancer, HIV, and multiple sclerosis are all disabilities.

The law also protects people from their past disabilities. If you used to have cancer, for example, you remain under protection from disability discrimination that targets this condition.

The Six Types of Discrimination Against Disabled Employees

Make sure that your policy on discrimination at work covers all of these.

While some employees might know two or three examples of disability discrimination at work, they won’t always be aware of all the different ways in which an employee can suffer discrimination because of a disability.

1. Direct Discrimination

This is when you treat an employee less favourably than you would treat others because of your employee’s disability.

An example of this would be if you chose to not consider a disabled employee for a promotion opportunity due to their disability.

2. Indirect Discrimination

This happens when you apply a practice, rule, or policy in your workplace that applies to all staff in the same way, but negatively affects one or more of your staff because of their disability.

Let’s say you wanted employees to work across two offices, and you made a rule that all staff must have a driving licence so that they can get to and from each office. This would be indirect disability discrimination against anyone who can’t or doesn’t drive because of a disability, such as epilepsy or narcolepsy.

However, if you can justify your reason for activating a rule, policy, or practice that is indirect discrimination as a genuine necessity, you will not be at fault.

3. Harassment

This is when you make an employee feel intimidated or shamed, or when you violate their dignity—because of their disability.

4. Victimisation

This is where you treat an employee worse than others because they’ve made a complaint of disability discrimination, or because they’re supporting somebody else who has.

5. Failure to Make Reasonable Adjustments

This is when you don’t make “reasonable” changes in your workplace to help a disabled employee go about their work.

Examples include things like adapting a workstation, or providing a disabled parking spot.

6. Discrimination Arising From A Disability

This happens when you treat an employee in an unfavourable way because of something caused by their disability.

For example, an employee’s disability might require them to take more absence from work. Punishing them because of their additional absence—such as by not giving them an annual bonus or counting their disability absences towards trigger points for a disciplinary—could be discrimination.

However, just like with indirect discrimination, you can justify this discrimination if your business has a legitimate aim that is proportionate and necessary.

The Provision of Goods or Services Concerning Disability Discrimination According to the Law

This is something you could make all employees aware of.

If an employee is disabled, they should inform any person or organisation who provides them some sort of service. For example, if they require documentation (such as a utility bill) in braille because of a visual impairment, they must notify the provider.

As part of the recruitment process, employers should always ask applicants if they will need reasonable adjustments made to the recruitment process, so that they’re not at a disadvantage. You should include this question in any application forms. Examples might include interviews taking place on the ground floor, or extra time to complete an assessment.

You shouldn’t outright ask, “Do you have a disability?” when you employee somebody. Instead, carry out a new starter health check. This will help you to prepare any adjustments, if your employee requires them.

A disabled employee might need support such as:

  • A guide dog.
  • Regular toilet breaks.
  • Assistance with speech or movement.
  • An interpreter.
  • A wheelchair or other special equipment.

Sickness absence and disability discrimination

As an employer, you might need to make changes to policies, procedures, working hours, workstations, equipment, or even job roles to help a disabled person’s employment continue.

There are also times when you might not need to make any changes—for example, if your employee doesn’t need an adjusted workstation then you don’t need to adjust their workstation.

In addition to this, it’s a wise move to separate any absence to do with disability from regular absences. Treat them as very separate sets of absence.

In your absence policy, underline your commitment to treating any staff who have a disability in a fair and reasonable manner.

Talk to an Expert

Disability discrimination is a serious matter, and if an employment tribunal found your business to be in breach of the law, your reputation—and your finances—would suffer terribly.

Speak to Croner’s employment law experts today for any queries about discrimination, on 01455 858 132.

About the Author

Andrew Willis

Andrew Willis is the senior manager of the Litigation and Employment Department and assumes additional responsibility for managing Croner’s office based telephone HR advisory teams, who specialise in employment law, HR and commercial legal advice for small & large organisations across the United Kingdom.





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