Disability discrimination in the workplace

Hello, my name is Shazia Mitchell. I have over 18 years of experience in the legal field. I act mainly for individuals, though I have also acted for companies in the past, so I understand both sides of the story when it comes to considerations in tribunal claims. I deal with a wide variety of matters, including disability discrimination claims, unfair dismissal claims, and victimization, where somebody has raised a complaint and says that because of that complaint, they have now been victimized by their employer.

Today, we are going to be covering what discrimination is in law, who qualifies as having a disability, what your rights are as an employee in the workplace or as a job applicant, what reasonable adjustments are needed, how sickness absence should be managed, and how to handle tricky situations at work.

Discrimination means treating somebody less favorably than someone else because of a protected characteristic. In law, there are about eight categories of protected characteristics, including age, gender reassignment, pregnancy, race, religion, sex, disability, and sexual orientation. Less favorable treatment can be anything that puts somebody with one of the protected characteristics at a disadvantage compared to somebody who does not have that characteristic. There is no legal definition of what putting somebody at a disadvantage is, but examples in the workplace could include excluding someone from opportunities or benefits, making it harder for someone to do their job, or causing somebody upset and distress. Harassment is also a recognized claim. It can still be discrimination even if the less favorable treatment was not intended.

The Equality Act 2010 is the statute applicable to discrimination claims in the workplace. It aims to create a level playing field so that people are employed, paid, trained, and promoted because of their skills and ability to do the job, rather than being treated less favorably because of their disabilities. The legislation applies to job adverts, the recruitment process, terms and conditions of work, conduct during employment, social events within the work context, and any dismissal.

There are four categories of discrimination in law:

Direct discrimination is where someone with a protected characteristic is treated less favorably than someone without that characteristic. This also covers situations where someone is treated less favorably because of their association with a person with a protected characteristic.

Indirect discrimination occurs where an employer operates what appears to be a neutral practice or criteria which applies to the workplace, but it has a negative impact on certain employees or groups of employees who share a protected characteristic.

Harassment is where somebody engages in unwanted conduct towards another person related to a protected characteristic which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, or humiliating environment.

Victimization is where a worker has done a protected act, such as bringing a legal claim or raising a formal grievance, and is then treated worse because of that complaint.

It is against the law to discriminate because of a condition considered to be a disability, because it is believed someone has a disability, or because of a connection to someone who is disabled.

Not everyone is considered disabled under the Equality Act. Some conditions, such as blindness, cancer, and HIV infection, are deemed disabilities. You are also protected if you have a progressive condition, like Alzheimer's or Parkinson's disease, as soon as it starts to have an effect on normal day-to-day activities, as long as it is likely to be long-term. Generally, someone is considered disabled if they have a physical or mental impairment that has a substantial, long-term adverse effect on their ability to carry out normal day-to-day activities. Long-term means it has lasted or is likely to last for 12 months. Substantial means it is more than minor or trivial.

Day-to-day activities include things like walking, driving, shopping, reading, writing, washing, and dressing. For mental and emotional illnesses, memory, concentration, and the perception of physical danger are often affected. Some conditions, like addiction to alcohol or nicotine, are excluded, though any knock-on effect like depression could be considered a disability.

Employers are responsible for ensuring they do not unfairly discriminate in any aspect of work. They must take positive steps to prevent discrimination and have a duty of care. Employers are vicariously liable for the actions of their staff.

Discrimination arising from a disability occurs where a worker is treated unfavorably because of something arising in consequence of their disability, unless the employer can show the treatment is a proportionate means of achieving a legitimate aim. Knowledge is key; if an employer does not know about a disability, they cannot generally be liable. However, employers have a duty to make reasonable inquiries if they suspect someone is struggling.

An employer has a duty to make reasonable adjustments to help disabled job applicants and employees. Examples include physical adaptations to premises, providing software for dyslexic individuals, or adjusting working hours. These must be reasonable based on the size and resources of the employer. A failure to make reasonable adjustments is disability discrimination. The employer generally pays for these costs, and there is an "Access to Work" scheme that can assist.

Regarding sickness absence, employers can use absence management processes, but they must make reasonable adjustments to these processes for disabled staff. This might include not counting all sick leave related to a disability toward a dismissal trigger point or recording disability-related absence separately. Employers should always talk to the employee and get medical advice before following through with any dismissal process due to absence. Regarding pay, this depends on your employment contract and whether the employer offers enhanced sick pay or only Statutory Sick Pay.

When returning to work after absence, employers should have a meeting to ensure the employee is supported and ready to return. This may involve a phased return or other adjustments. Finally, when resolving issues, employees should try to have an informal discussion with their manager first. If that does not work, I suggest a written grievance. Following the internal grievance process is important because any compensation awarded by a judge later can be reduced by up to 25% if you fail to follow the process, or increased by up to 25% if the employer fails to handle the grievance properly.