Disability discrimination in work is one of the most common types of discrimination we come across. It can be very difficult to cope with and often employers do not fully understand the rights disabled people have at work. Disability discrimination is complex and there are additional claims related to disability that do not apply to the other protected characteristics, which we explain below. We are well versed in advising, negotiating, and litigating in this area and explain below some of the key legal considerations.
Who Can Claim Disability Discrimination In Work?
Disability discrimination in work is far-reaching and applies to employees, workers, contractors (and the self-employed), office holders, people of secondment, and even job applicants.
Generally, those that can claim disability discrimination will need to show (1) that they were a disabled person at the relevant point in time (usually when the discrimination occurred) and (2) the employer/company knew about the disability.
However, as touched on below, you can also make a claim if you do not have a disability but your employer “perceived” that you had a disability or if you are associated with a disabled person.
Therefore, you may be able to claim disability discrimination if:
- You are a disabled person and your employer had knowledge (or constructive knowledge) of the disability.
- You were perceived to be disabled.
- You were associated with a disabled person.
What Is The Definition of Disability?
Under the Equality Act 2010 (section 6) disability is defined as a physical or mental impairment that has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities. Anyone with HIV, cancer or multiple sclerosis are automatically treated as disabled. In some circumstances, people with sight impairments are also automatically treated as disabled. People with severe disfigurements are also covered, as long as the disfigurement is long-term.
- The “impairment,” may be physical, mental, or both.
- “Long-term” means the impairment has lasted or is likely to last 12 months or where the total period it lasts is or is likely to be 12 months.
- The meaning of “substantial” is an effect that is more than minor or trivial. It must go beyond the normal differences in ability which might exist among people.
- “Normal day-to-day activities” are things carried out by most people on a fairly regular basis and include things like walking, driving, writing, reading, washing, going to the toilet, cooking, cleaning, and socialising. Activities that are relevant to working life can also be considered.
Certain conditions are specifically excluded, such as addiction to alcohol, nicotine, and any other substance (unless the addiction is the result of medically- prescribed drugs or treatment).
The main point is satisfying the test set out above. For example, long covid (if it meets the test) is likely to be deemed a disability.
What Is Disability Discrimination In Work?
With discrimination claims generally, there are claims for direct discrimination, indirect discrimination, harassment, and victimisation. However, in relation to disability discrimination, there are claims for:
- Direct Discrimination
- Indirect Discrimnation
- Discrimination arising from disability
- Failure to make reasonable adjustments
The two claims underlined above only relate to disability and we cover these in more detail below.
This is where you have (or would be) treated less favourably because of your disability, than someone in the same circumstances (“known as the comparator”) that does not have a disability.
It is also possible to claim direct discrimination if you were perceived to be disabled or associated with someone that is disabled. An example of perceived disability discrimination is when you do not have a disability, but the employer thinks (perceives) that you have a disability. We have a Case Study in relation to an employment tribunal claim we won that included a claim for perceived disability discrimination.
An example of associative disability discrimination would be an employee that was subjected to direct discrimination not because of their own disability, but because of their association with another disabled person (such as a disabled family member they cared for).
Click here for more information on direct discrimination.
Indirect Discrimination – Disability
This is where an employer operates a provision, criterion or practice, that places people with the relevant disability at a disadvantage, and you can show that you too are faced with this disadvantage because of the same disability.
For example, the employer may have a rule that its workers have to operate at a minimum speed, but someone with a disability may not be able to maintain that pace.
There is a defence to indirect discrimination known as the “objective justification test,” the onus is on the employer to provide that the indirect discrimination was a “proportionate means of achieving a legitimate aim.”
You can find more information on Indirect Discrimination HERE.
Discrimination Arising From Disability
This is a claim found under section 15 of the Equality Act 2010 and is only relevant to those with a disability (it is not a claim that can be based on any of the other protected characteristics). This claim arises when an employer treats a disabled person “unfavorably” because of something “connected” with their disability. Therefore, discrimination is not because the person is disabled, but something arising as a consequence of their disability.
For example, if you are dismissed because of time off (and the time off was because of your disability) this may be an example of discrimination arising from disability because it was the time off that caused the dismissal and not the disability itself.
Failure To Make Reasonable Adjustments
In certain situations, employers are under a duty to make reasonable adjustments. Like discrimination arising from disability, this type of claim only relates to someone with a disability and not the other protected characteristics.
The duty arises when:
(1) The employer has a provision, criterion or practice that puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled. The employer will then need to take such steps as it is reasonable to avoid the disadvantage.
(2) Where there is a physical feature that puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled. The employer will then need to take such steps as it is reasonable to avoid the disadvantage. An example might be the lack of wheelchair access.
(3) Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with persons who are not disabled. The employer will then need reasonable steps as to provide the auxiliary aid. An example would be a form of adapted equipment, such as a specialist keyboard, mouse or screen.
What is a provision, criterion or practice (“PCP”)?
A PCP has a broad definition and can include one-off decisions, but it generally refers to rules or processes (including work conditions and requirements) that apply to your employment. A PCP is not just formal policies and can include other arrangements and general practices within the workplace. If there is a PCP that put you at a “substantial disadvantage” (and the employer has knowledge of the disability and the disadvantage) then the duty to make reasonable adjustments will arise.
Harassment – Disability
Harassment occurs when a person engages in unwanted conduct which is related to a relevant protected characteristic, which has the purpose or the effect of:
- violating the worker’s dignity; or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker.
A key point is the unwanted conduct must be related to a protected characteristic, so if someone at work made an offensive remark about a person’s disability, this may amount to harassment.
You can see more information on harassment HERE.
It is victimisation for an employer to subject a worker to a “detriment” because the worker has done a “protected act” or because the employer believes that the worker has done or may do a protected act in the future.
Arguably not strictly disability discrimination, there is overlap. For example, if you raised a grievance at work alleging disability discrimination and were then subjected to a detriment, this would be victimisation. However, the claim relates to the fact you alleged disability discrimination, not because you are a disabled person.
You can see more information on victimisation HERE.
If you think you have been subjected to disability discrimination, you must act quickly. There are strict time limits in which to progress claims for disability discrimination and if you wait too long, it can be too late.
With discrimination claims, the time limit is 3 months less 1 calendar day from the discriminatory act complained of. Within this time frame, you must commence Early Acas Conciliation.
There are ways to argue that disability discrimination was a “continuing act,” meaning you can claim for earlier incidents of discrimination. Further, a Tribunal does have discretion to “extend time,” meaning it can make an exception and permit claims brought outside of the time limit to continue. However, these points can be complicated and you should proceed with caution, which is why professional advice on these points is recommended.
You can see more information on time limits HERE.
If you are concerned about disability discrimination in work:
- Act quickly, heed the warning above about short time limits.
- You may need to show your employer had knowledge of your disability and any negative impacts it is having on your work, understand when and how this was communicated.
- You may need to evidence the disability itself so start to think about what evidence you can pull together.
- Understand the test for disability and consider whether you meet the definition.
- Decide what you want to achieve and act accordingly. For example, if you want to stay employed, but reduce the impact of your disability, consider how best to achieve that internally. If the discrimination is such that you would prefer to leave, then stay employed, but take advice as quickly as possible so you can understand how to exit on the best terms possible.