01 May 2023
Many of the cases we see and advise on involve individuals with disabilities. This could involve clients who have developed health issues or who have been employed with long-standing health issues, but need support in their roles.
In this article we explore how the law protects those in the workplace with disabilities.
The Equality Act 2010
Under the Equality Act 2010 (the Act) a person (A) discriminates against another (B) if, A treats B less favourably than A treats others because of B’s disability.
The Act covers all forms of discrimination in the workplace, recruitment, terms and conditions, promotions, transfers, dismissals, training and any other detrimental treatment.
The Act also applies to apprentices, those who are self-employed, working under a contract of employment and people who are working under a contract personally to do work. Ex-employees may also be able to claim against a former employer.
Definition of disability
To be protected under the Act a person must first show that they are “disabled”.
In order to qualify as disabled, a person must show that they 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.
For an impairment to be long-term it must have lasted for at least 12 months, be likely to last at least 12 months or be likely to last for the rest of the person’s life.
It is important to note your right to protection under the Act is not lost if a person may have been able to control or correct their disability through the use of aids or medical treatment. In addition, the Act also covers people who have had a disability in the past as well as people with progressive conditions and anyone deemed to have a disability including those with cancer or certain types of disfigurement.
How does the Act apply?
There are six ways in which an employer can discriminate against a disabled employee.
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Direct discrimination
Direct discrimination occurs where the employer, because of a person’s disability, treats that person less favourably than he treats or would treat a person who does not have that particular disability. This type of discrimination cannot be justified under any circumstances.
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Indirect discrimination
Indirect discrimination occurs where the employer applies a ‘provision, criterion or practice’ which puts those people who share a disability at a particular disadvantage. Indirect discrimination can be justified if the employer can show that the discrimination is a ‘proportionate means of achieving a legitimate aim’.
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Reasonable adjustments
The Act provides that an employer is under a duty to make reasonable adjustments where any provision, criterion or practice puts the employee at a substantial disadvantage in comparison with persons who are not disabled.
Reasonable adjustments can include altering a disabled person’s working hours or the duties they undertake, assigning him or her to a different place of work or modifying work equipment.
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Harassment
Harassment occurs where, for a reason connected with the person’s disability, the employer (usually by another employee) engages in unwanted conduct which has the purpose or effect of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the disabled person.
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Unfavourable treatment ‘arising from’ disability
A person discriminates against a disabled person if they treat them unfavourably because of something arising in consequence of their disability and cannot show that the treatment is a proportionate means of achieving a legitimate aim.
This might apply where an employer treats a disabled person unfavourably in connection with sickness absences connected to their disability.
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Victimisation
The Act protects people who have:
- Brought legal proceedings against a discriminator;
- Given evidence or information in connection with such proceedings;
- Otherwise done anything under or by reference to the Act in relation to the discriminator or any other person;
- Alleged that the discriminator or any other person has contravened the Act
How to enforce your rights
Employees or job applicants who feel that their employer (or potential employer) has discriminated against them or failed to make reasonable adjustments should discuss it with HR and/or their manager.
Often these cases can be resolved informally. But if not, it may be necessary to instigate the formal grievance procedures.
You should check the employer’s policy on the making of reasonable adjustments and what support is available. You may need to be referred to occupational health to assess your needs in the workplace and agree a way forwards with your employer.
Litigation should be a last resort. However, if matters cannot be resolved swiftly, then a claim to an Employment Tribunal may need to be made.
Claims for discrimination must be brought within three months less one day of the act complained of.
In circumstances where discrimination has occurred over a long period of time or there are a series of discriminatory acts, then the claim must be brought within three months less one day of the last act in a series. Time limits in reasonable adjustments claims are more difficult to assess and depend on when the adjustment ought reasonably to have been implemented.
If you are successful in establishing a well-founded claim, a tribunal has the power to make an order requiring the employer to pay compensation to the Claimant for financial losses and injury to feelings. Compensation for injury to feelings will reflect the seriousness of the discrimination and the effect on the employee.
There is no limit on the amount of compensation which can include loss of earnings (past and future), loss of pension rights, interest and other losses.
Finally, it is also important to note that the Tribunal can also make a recommendation that the Respondent takes specified actions within a specified time that the Tribunal feels is practicable for the purpose of removing or reducing the adverse effects of the discrimination on the Claimant.