A Guide to Preventing Disability Discrimination in the Workplace
Under the Equality Act 2010, which repeals all previous discrimination law and brings together the relevant legislation in one place, it is unlawful to discriminate against a worker on account of a physical or mental disability or to fail to make reasonable adjustments to accommodate a worker with a disability.
It is not always necessary to categorise an impairment as physical or mental. It is the effect of the impairment, not its cause, which is material in deciding whether or not someone is disabled for the purposes of the Act. A person will be classified as disabled if they have a physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day-to-day activities.
‘Substantial’ is defined as ‘more than minor or trivial’ and an impairment is considered to have a long-term effect if it lasts for 12 months or more. Even if the condition ceases, it is still deemed a disability if it is likely to recur.
The Act does not specifically define ‘normal day-to-day activities’ but, in this context, ‘normal’ should be given its ordinary, everyday meaning and, in general, the activities are those people do on a regular or daily basis, such as shopping, reading and writing, having a conversation or using the telephone. In deciding whether an activity is a normal day-to-day activity, account should be taken of how far it is normal for a large number of people, and carried out by people on a daily or fairly regular basis. This does not have to be a majority of people, however. Some activities, for example applying make-up or using hair curling equipment, are predominantly carried out by women and would not, therefore, be said to be normal for ‘most’ people. They would, nevertheless, be considered to be normal day-to-day activities.
Normal day-to-day activities do not include work of a particular kind because no particular form of work is ‘normal’ for most people. In any individual case, the activities carried out might be highly specialised. The Act only covers effects which go beyond the normal differences in skill or ability. However, work may still involve normal day-to-day activities – for example sitting down, standing up, verbal interaction, writing, using everyday objects such as a keyboard, or lifting or moving everyday objects.
Whilst people suffering from cancer, multiple sclerosis or HIV are automatically deemed to be disabled for the purposes of Act, whether or not other illnesses constitute a disability will depend upon the full circumstances of the case. Where the effect of the illness is reduced or controlled by medication or medical treatment, its impact must be measured without reference to those improvements. However, in Metroline Travel Limited v Stoute, the Employment Appeal Tribunal ruled that a bus company employee who was able to control his Type 2 diabetes by following a diabetic diet was not a disabled person for the purposes of the Act.
The Act replaces the concept of disability-related discrimination with a new protection from discrimination arising from disability. This means that an employer discriminates against a disabled person if it treats them less favourably than it would another person because of something arising from, or in consequence of, their disability. The employer will have a defence if it can show that the unfavourable treatment was a proportionate means of achieving a legitimate aim or if the employer did not know, or could not reasonably have been expected to know, that the employee had a disability.
Where a provision, criterion or practice (PCP) puts a disabled employee at a substantial disadvantage compared with a non-disabled employee, the employer must take all reasonable steps to eliminate the disadvantage. This could include re-deployment to a different type of work if necessary. The making of an assessment as to what reasonable adjustments might be made is not in itself capable of amounting to a reasonable adjustment.
The duty to make reasonable adjustments for the benefit of an employee who becomes unable to do their job owing to disability is a positive duty which can, on occasion, require the employer to discriminate in favour of a disabled employee if he or she could carry out an alternative job within the same organisation. Depending on the circumstances, this could mean that an existing disabled employee must be given a job, even if there are other better-qualified candidates for the post, if he or she is capable of doing it.
If a non-disabled person would be affected by the PCP in exactly the same way as a disabled person, for example where its effects are purely financial, there is no comparative substantial disadvantage to the disabled person and no duty to make reasonable adjustments arises.
Nor does the duty to make reasonable adjustments to working practices extend to enabling a disabled employee who is no longer able to do their work (or any available alternative) to leave their employment on favourable terms. The whole concept of an adjustment is that it is made in order to make it possible for the disabled employee to remain in employment. It does not extend to taking steps to ensure that they are compensated for no longer being able to do so.
All reasonable steps must be taken to avoid disadvantage to disabled workers that arise because of physical features in the workplace. This could involve making adaptations to the premises, such as removing the physical feature in question, altering it or providing a reasonable means of avoiding it.
In addition, steps must be taken to provide auxiliary aids or services to help disabled personnel overcome a disadvantage. For example, a specially adapted computer keyboard could enable an employee with arthritis to overcome the substantial disadvantage posed by their condition.
These duties are also owed to job applicants. For example, employers must make adjustments to recruitment and selection procedures in order to accommodate disabled candidates, such as providing the job application form in large print for someone with a visual impairment.
In addition, in order to protect job applicants with a disability from discrimination during the recruitment process, the Act prohibits the use of questionnaires on an applicant’s general health and related issues prior to a job offer being made. This includes prohibiting the use of such questionnaires before selecting a pool of applicants from whom the successful candidate will be chosen.
The measure does not prevent employers from asking job applicants any questions about their health but stipulates that they are only allowed to do so for specific purposes, for example deciding whether a job applicant can carry out a function that is essential (‘intrinsic’) to the work concerned.
The Act also contains provisions that allow positive action specifically in the process of recruitment and promotion, in limited circumstances. These provisions mean that it is not unlawful to recruit or promote a disabled candidate who is of equal merit, in relation to the specific job or position for which they have applied, to another candidate for the same post if the employer reasonably thinks that people with a disability are under-represented in the workforce or suffer a disadvantage connected to their disability.
This kind of positive action is only allowed where it is a proportionate way of addressing the under-representation or disadvantage. The Act does not allow an employer to appoint a less suitable candidate just because he or she is disabled and that protected characteristic is under-represented or disadvantaged.
Employers must not treat an employee unfairly who has made or supported a complaint about discrimination because of disability.
Disabled employees are also protected from harassment. Harassment is unwanted conduct that is related to a person’s disability that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for that person or of violating their dignity.
The Equality Act also outlaws discrimination by association and discrimination by perception.
Discrimination by association, in this context, occurs when a person is treated less favourably because they are linked or associated with someone who is disabled. The person is not themselves disabled but is treated less favourably than others because of the disability of a friend, spouse, partner, parent or another person with whom they are associated. However, an employer's duty to make reasonable adjustments applies specifically to employees who are themselves disabled and does not extend to accommodate the needs of an employee's disabled relative, for example a disabled child for whom they have caring responsibility.
Discrimination by perception, in this context, happens when a person is discriminated against because they are thought to have a disability when in fact they do not.
Guidance on employing disabled people and people with health conditions is provided by the Department for Work and Pensions.
Where a worker requires support or adaptations, employers may be able to obtain a grant from Access to Work, a specialist disability service delivered by Jobcentre Plus, to help cover the costs. For further information, see the Employer's Guide to Access to Work.