The Equality Act 2010 affords protection to disabled people from discrimination in education, in housing, when receiving services and of course, in the workplace. In recognition of Disability Awareness Day is on Sunday 12 September 2021, it seems fitting to discuss the protections the 2010 Act provides those living and working with a disability.
Defining Disability
The Equality Act defines a disability as a physical or mental impairment which has a substantial and long-term adverse impact on your ability to carry out day-to-day activities. This includes progressive conditions from the date of diagnosis, even if it currently has no impact on your ability to perform daily tasks. Past disabilities that have now resolved can also covered by the Act.
The legislation says that it is unlawful to discriminate against someone because they have a disability, and also because you perceive them to have a disability or because they are associated with someone who has a disability. So carers and those mistakenly believed to be disabled in some way can be protected.
Types of Disability Discrimination
There are six types of discrimination that can arise from disability: 1) direct discrimination; 2) indirect discrimination; 3) failure to make reasonable adjustments; 4) discrimination arising from disability; 5) harassment and 6) victimisation.
It is not unlawful discrimination to treat a person with a disability more favourably than a non-disabled person. Employers have a responsibility to ensure disabled people can access work as easily as non-disabled people. Employers therefore have a duty to make reasonable adjustments for disabled applicants and employees, or provide employees with specialist equipment to aid them with their job. An example of this may be an employer altering office facilities to accommodate a wheel chair user. Where an employer fails to make a reasonable adjustment, they open themselves up for a disability discrimination claim and this is an area where we sometimes see employers being criticised by Employment Tribunals.
Pitfalls
Discrimination can arise in a number of situations and while this can sometimes be deliberate, some employers can fall foul of the law inadvertently too. For example, in a redundancy selection situation, employers need to be careful not to score a disabled employee down for their attendance where some absences have been caused directly or indirectly by a disability. Similarly, care needs to be taken when recruiting or scoring performance to ensure that adjustments have been considered both in terms of supporting the employee to perform at their best and where appropriate, to relax benchmarks or trigger points which in other circumstances, may have resulted in a decision not to appoint a candidate or prompted performance or attendance management measures. That is not to say that such measures can never be taken, just that a more sophisticated and supportive approach needs to be adopted.
The concept of “reasonable adjustments” can be a complex one to get to grips with but the key word is reasonable. What is expected will depend on many factors, such as resources available, the nature of the disability and the extent to which the adjustment will mitigate the impact of the disability in question, in the particular work setting. Getting advice (legal and otherwise) can be critical and there is lots of help out there. Often the best advice comes from those with the greatest insight into the disability – the employee or candidate themselves.
Managing Disability Discrimination
If you feel you may have been discriminated against because of your disability, you should speak to your employer, clearly setting out what has happened. Help and support is usually available from HR colleagues or your line manager. Trade unions or professional associations can also offer support and advice.
As an employer, if a team member complains of disability discrimination then you must take the complaint very seriously, follow procedure and handle the complaint in a sensitive manner. Taking such complaints seriously ensures staff feel confident enough to raise any issues with you, will help to stop and prevent such behaviour and will likely reduce the possibility of an employee making a claim to the employment tribunal. Any complaints should be kept confidential and on a need to know only basis.
Taking Positive Action to Prevent Disability Discrimination
You should aim to achieve a zero tolerance approach to disability discrimination. Steps that employers should take to achieve this include training staff to recognise disability discrimination and encourage them to report it; promote inclusivity and diversity of workforce including disabled persons and ensure workplace policies consistently convey the message of zero tolerance.
If you have any questions regarding disability discrimination or your policies, the Thorntons Employment Team would be happy to assist you. Call a member of our Employment Law Team on 03330 430350
