Supporting employees with a disability

If you are an employee with a disability you should feel fairly assured your employer knows the cost of mistreating you – but what should you really expect?

The Equality Act 2010 makes it unlawful for an employee to be subjected to unfavourable treatment as a result of a disability [1] cited 16.9.24

Disability discrimination at work is when an employee is treated less well or put at a disadvantage for a reason that relates to their disability in one of the situations covered by the Equality Act [2] cited 16.9.24

The treatment could be a one-off action, the application of a rule or policy or the existence of physical or communication barriers which make accessing something difficult or impossible. The discrimination does not have to be intentional to be unlawful.

Despite the legal protections in place, we continue to hear and read numerous reports  of employers subjecting disabled employees to discrimination.

Reports of analysis of data obtained from ACAS revealed disability discrimination claims sent to it for conciliation had surged by 30 percent, from 6,545 to 8,496. Such claims are now said to be making up a quarter of the total number of claims referred to ACAS for conciliation [3] cited 16.9.24

The most recent figures for claims made to employment tribunals in the UK for disability discrimination, covering the period from April 2022 to March 2023, showed the claims stood out with the highest average award of £45,000. The highest individual award for a disability discrimination case was a substantial £1,770,000 [4] cited 16.9.24

The financial awards for successful disability-related discrimination claims highlights the significant financial impact of such claims, and clearly emphasises the importance of an employer adhering to its legal obligations to support disabled employees and prevent discrimination.

Yet a very recent case shows that when it comes to disability discrimination, some organisations are still getting it badly wrong.

A teacher with autism who was dismissed because he was considered to have complained too much about work-related mistreatment has been awarded £850,000 after the employment tribunal found he was unfairly dismissed, victimised and discriminated against by the school where he worked [5] cited 16.9.24

The tribunal found the school’s decision to dismiss the teacher fell ‘significantly outside’ the band of reasonable responses.

Navigating the workplace as an employee with a disability, especially one that is ‘hidden’, can present challenges. Non-visible disabilities can include, and are not limited to, the following: mental health conditions, including anxiety, depression, schizophrenia, personality disorders, obsessive compulsive disorder; autism and Asperger’s syndrome, visual impairments or restricted vision; and hearing loss  [6] cited 16.9.24

So if you are an employee with any type of disability, understanding your rights and the support you can expect from your employer can make a significant difference.

There are several laws and guidelines in place to make sure that employees who have a disability, receive the necessary support to do well in their jobs.

Here we look at what disabled employees can and should expect from their employers, along with relevant legislation.

Health and safety

The Health and Safety at Work Act 1974 does mean that employers have a duty to ensure the health, safety, and welfare of all employees, including those with disabilities [7] cited 16.9.24

It can include carrying out risk assessments and putting measures in place to address any risks. Consideration also has to be given to the specific needs of disabled employees when planning emergency procedures in order to make sure they have access to necessary safety equipment and training.

The Equality Act

The Act protects employees from discrimination and harassment at work based on any protected characteristic, which includes a disability  [8] cited 16.9.24

It is worth noting that the rise in disability discrimination claims is seen to reflect a growing number of mental health issues being classified as disabilities in a way that may not have happened previously.

Under the Equality Act, a person is considered to have a disability if they have a physical or mental impairment which has a ‘substantial’ and ‘long-term’ negative effect on their ability to carry out normal day-to-day activities.

• Substantial: More than minor or trivial, such as taking much longer than usual to complete daily tasks.
• Long-term: Lasting or expected to last 12 months or more, such as a chronic illness or a progressive condition.

There are some conditions such as HIV, cancer, and multiple sclerosis, that are automatically considered disabilities from the point of diagnosis.

Reasonable adjustments

An employer has a duty to make reasonable adjustments for an employee when it is aware, or should reasonably be aware, the worker has a disability.

Such adjustments are changes, which will help a disabled employee to overcome any disadvantage they may face at work. Examples include:

• Making changes to the workplace such as providing specialised equipment, e.g. dictation software for a dyslexic employee, or making the working environment accessible and comfortable such as installing ramps and adjusting desk heights.

• Allowing flexible working hours, working from home, or part-time hours to accommodate medical appointments or variable health conditions.

• Changing duties or providing additional support with tasks that a disabled employee might find difficult or challenging.

Employers are legally required to consider reasonable adjustments and to implement them where practicable. Failing to make reasonable adjustments is one of the most common forms of disability discrimination.

However, in some circumstances an employer can refuse a request for a reasonable adjustment if it can show the adjustment is unreasonable, for example it is too expensive or would be damaging to the business or it is impractical to implement

Different types of discrimination

The Equality Act protects disabled employees from various forms of discrimination, which include [9] cited 16.9.24

Direct discrimination: Treating someone less favourably because of a disability.

Indirect discrimination: A policy or practice that disadvantages a disabled employee.

Discrimination arising from a disability: Discrimination because of something that results from a disability, not because of the disability itself.

Failure to make reasonable adjustments: Not making reasonable adjustments for someone who needs them.

Harassment: Unwanted behaviour based on a disability that violates the employee’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.

Victimisation: Being treated unfairly for making or supporting a complaint about discrimination.

An employee with a disability should not be subjected to any type of unfavourable treatment as a direct result of their disability.

Reasonable expectations of an employer

Disabled employees should expect their employers to provide reasonable adjustments to accommodate their disabilities, ensuring they are not at a disadvantage compared to non-disabled colleagues. Employers must also prevent all types of discrimination.

 Additionally, businesses should create an inclusive and supportive workplace culture and address any discriminatory behaviour effectively and without delay.

Employees with a disability have the right to expect meaningful work-related support.

Employers are legally required to make reasonable adjustments, prevent discrimination, and ensure the health and safety of all employees.

By understanding these rights, disabled employees can advocate for themselves and contribute effectively to their workplaces.

If you are an employee and you have any concerns about how you are being treated at work or about a lack of workplace support with a disability, contact our Employee Support Centre  or call us today for a free initial consultation on 0333 772 0611.