Disability Discrimination

Disabled workers share the same general employment rights as other workers. However, there are also some special rights for disabled people under the Equality Act 2010. Learn more about your rights and the Equality Act 2010.

Employers and the Equality Act 2010

Under the Equality Act 2010,^[1] it is unlawful for employers to discriminate against disabled people. The disability parts of the act cover:

• Application forms;

• interview arrangements;

• aptitude or proficiency tests;

• job offers;

• terms of employment including pay;

• promotion, transfer and training opportunities;

• work-related benefits such as access to recreation or refreshment facilities;

• dismissal or redundancy; and

• discipline and grievances.

An employer must also make reasonable changes to applications, interviews and work so that you are not disadvantaged. These are known as ‘reasonable adjustments’.^[2]

Under the Equality Act 2010, an employer must not:

• Treat a disabled person less favourably because the person has a disability - this is known as 'direct discrimination';

• indirectly discriminate against a disabled person, unless there is a fair and balanced reason for this;

• directly discriminate against, or harass a person because they are associated with a disabled person;

• directly discriminate against or harass a person who is wrongly thought to be disabled; and

• victimise anyone.

Victimisation^[3] might arise because the person has taken, or is believed likely to take action under the act. For example, making a complaint or taking a case to a tribunal^[4] or court. Or it might be because they have helped somebody to make a complaint or to take other action.

Your employer must not treat a disabled person less favourably because of something connected with the person’s disability. Unless there is a fair and balanced reason. For this form of discrimination the employer must know or should reasonably have been expected to know that the person is disabled.

These rights do not just apply to employment. The Equality Act covers other forms of work like partnerships, contract work, or holding an office like a director of a business.

Reasonable adjustment

Under the Equality Act 2010 an employer has a duty to make reasonable changes for disabled applicants and employees. These are known as 'reasonable adjustments'. Adjustments should be made to avoid you being put at a disadvantage compared to non-disabled people.

The need to make reasonable adjustments can apply to the working arrangements or any physical aspects of the workplace. For example, adjusting your working hours or providing you with an adapted piece of equipment to help you to do the job. Physical adjustments might include replacing steps with a ramp.

Also, if it is reasonable, the employer needs to provide an extra aid to ensure the disabled worker is not disadvantaged. This might mean providing special or adapted equipment to do the job.

Recruiting new employees

The Equality Act 2010^[5] limits when a person recruiting for work may make enquiries about a job applicant’s health or disability.

Redundancy

An employer cannot select you for redundancy just because you are disabled.^[6].

The criteria used to select people for redundancy must not put disabled people at a disadvantage, unless there is a fair and balanced reason.

The employer must make reasonable adjustments to any criteria used to select employees for redundancies. For example, it could be a reasonable adjustment for the employer to discount disability-related sickness absence when using attendance as one basis for selection.

If the employer knows, or should know that you are disabled, they should not treat you unfavourably because of something connected with your disability. If they do, they would have to show there is a fair and balanced reason for this. Something connected with a disability might be having to work flexible hours or taking time off for disability-related sickness.

If your employer is consulting about any future redundancies, they should take reasonable steps to make sure you are included in the consultations.

What counts as a disability?

There are rules about what the law counts as a disability,^[7] when considering whether or not discrimination has taken place.

The law says that 'disability' means a physical or mental impairment, which has a substantial and long-term negative effect on your ability to carry out normal day-to-day activities. There are special rules for people with cancer, HIV and multiple sclerosis and for people who are blind or partially sighted – see below.

According to this definition, impairments can include sensory impairments, such as sight and hearing, or mental impairments such as learning disabilities, dyslexia and mental illness. Some severe disfigurements count as a disability. Some conditions that can worsen over time such as multiple scleroses and HIV/AIDS are regarded as a disability as soon as they are diagnosed, even before they start to affect your day-to-day activities.

To have a long-term disability means that the disability:

• Has lasted for at least twelve months;

• is expected to last for at least twelve months; or

• is likely to last for the rest of your life, if you are expected to live for less than twelve months.

In some cases, even if medical aids or treatment are used to help control or remove a disability, it is still regarded as a disability. Examples of this include the use of an artificial limb or medication to control epilepsy. However, visual impairment corrected with glasses or contact lenses is not regarded as a disability.

Although a minor impairment may not, on its own, count as substantial, you may have a number of minor impairments which taken together may be seen as having a substantial effect. If an impairment stops having a substantial effect, it can still be regarded as an impairment if there is a reasonable likelihood of the condition recurring, for example, epilepsy.

People with cancer, HIV or multiple sclerosis

If you have cancer, HIV or multiple sclerosis, you are automatically counted as having a disability. This means that you don't have to show that you have an impairment that has a substantial, adverse, long-term effect on the ability to carry out normal day-to-day activities. You are counted as having a disability from the date you are diagnosed with the condition.

People who are blind or partially sighted

You are counted as having a disability if you are either:

• Certified as blind or partially-sighted by a consultant ophthalmologist; or

• registered as blind or partially-sighted by a local authority.

What does not count as a disability?

The law does not currently count the following as disabilities:

• Addiction to alcohol, nicotine or any other substance not prescribed by a doctor. However, damage to health caused by the addiction may be considered a disability;

• hay fever;

• certain personality disorders (for example exhibitionism, voyeurism or a tendency to steal, set fires, or physically or sexually abuse other people);

• tattoos and body piercing.

Your employer has a duty to:-

• Make reasonable adjustments and must not give less favourable treatment related to your disability;

• take positive steps in certain circumstances to accommodate your needs; and

• that might include an adjustment to the premises, altering working hours, arranging training or modifying equipment.

Our team of experts have extensive experience of advising on Disability Discrimination issues during grievances, disciplinary and even the redundancy process - so if you have been a victim of disability related discrimination at work, please contact us - without obligation - to find out how we might assist.

Please contact us to discuss how we will be able to support and accompany you at your place of work.