Employment law makes it illegal for employers to discriminate against disabled workers. Disability discrimination, as set out in the Equality Act 2010, means treating a person less favourably than others because of a recognised disability. As well as disabled workers, the Act also enables employment lawyers to take action against unfavourable treatment of people who do not have a disability but are thought to have one, and against discrimination against people closely associated with a disabled person.
Furthermore, the Act seeks to reduce excuses employers may make for not employing disabled workers. Employment legal advice would tell employers to take reasonable steps to support a disabled employee in their work. It should be noted that an employment tribunal would accept that it is not unlawful to treat a disabled person more favourably than a non-disabled person.
For the purposes of employment tribunal and employment law, a disability is a substantial, long-term mental or physical impairment that negatively affects the ability to perform normal day-to-day activities. Employment law allows employment lawyers to argue that some of those normal day-to-day activities include eating, washing, walking and shopping. Employment tribunals will automatically consider some health conditions as a disability such as cancer and HIV. Other conditions are specifically excluded such as alcoholism. The Act protects a worker who had a disability in the past but has recovered, such as a past mental health condition that lasted over 12 months.
Types of disability discrimination
There are six main types of disability discrimination:
- direct discrimination
- indirect discrimination
- failure to make reasonable adjustments
- discrimination arising from disability
This applies, as set out in the Equality Act, to people who have particular characteristics that makes them vulnerable to discrimination. Direct discrimination is where an employer treats a worker, employee or contract worker less favourably than other workers on the basis of the worker’s race, age, sex, disability or the other relevant personal characteristics. Such discrimination can occur during recruitment or at any stage of the employment, for instance at an interview, in promotion, or in the terms and conditions offered as part of the contract.
The law allows for a claim of direct discrimination to be brought because of unfavourable treatment of a person on the basis that they were thought to be disabled or they have an association with a disabled person.
This occurs when an employer introduces and implements a provision, criterion or practice that tends to lead to disadvantages for workers who have a particular characteristic relevant to the Equality Act but where that practice is not necessary to achieve organisational goals. For example, an employer requires workers to attend regular training in a remote part of the building even though this may adversely affect a worker whose disability means they have difficulty in getting there. The onus will be on the employer to demonstrate that the practice was necessary to achieve a legitimate aim.
Employers and organisations have a ‘duty to make reasonable adjustments’ so that disabled workers can do their jobs or have access to jobs, promotion, training and other benefits as easily as non-disabled people. Employment law requires workplace managers to make reasonable changes to working conditions. Providing adapted equipment, such as keyboards, large print or Braille, would be regarded as reasonable but what is reasonable is dependent on the situation faced by the employer or organisation, such as resources available. Furthermore, employers can ask job candidates about their health or impairments to help them attend a job interview. But employers cannot ask job candidates about their disability for any other reason as part of the recruitment process.
This occurs when a manager or colleague bullies, humiliates or degrades a worker because of a disability. An example of this is where a disabled woman is regularly sworn at, name called or is the butt of jokes because of her disability. An employment tribunal would have to decide whether a form of action could reasonably regarded as harassment. If an employee resigned from their job because of this, that would be a form of constructive dismissal. In such circumstances, to defend themselves, an employer would have to demonstrate that all reasonable steps were taken to prevent such harassment.
This is when a worker is treated badly because he or she made a complaint of discrimination under the Equality Act or if a worker was supporting a complaint or made it known they intended to support another worker making a discrimination complaint. For instance, employment legal advice would mean that an employer should not threaten to sack a worker who has volunteered to be a witness in a case brought under the Equality Act.
Lawful different treatment
An employment tribunal would judge that treating a disabled person more favourably than a non-disabled person is lawful. It may also be lawful to discriminate in favour of a disabled worker or job candidate against another disabled person. This is where a particular disability is essential for the job such as where a worker needs to have a British Sign Language user and therefore a deaf person would be more suitable than a person with a mobility disadvantage.
Employment legal advice would indicate to an employer that they cannot ask job applicants about their health or their disability until a job has been offered, except where the information is essential for the job. This means that an employer cannot ask a job candidate whether they are taking any medication.
The Equality Act provides legal rights for disabled people in other areas as well as employment.