Head of JMW's Employment team, Paul Chamberlain outlines how to avoid disability discrimination in the workplace and what may happen should it occur.
What is disability discrimination at work?
Disability discrimination occurs when a person is put at a disadvantage because of their condition or impairment.
What does the law say about it?
Disability is one of nine "protected characteristics" covered under the Equality Act 2010 (EA).
The statutory definition states that: "A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities" (Section 6(1) EA).
Types of workplace disability discrimination include:
- Direct disability discrimination where a job applicant or employee is treated less favourably than others because of their disability (Section 13(1) EA). Direct disability discrimination cannot be objectively justified.
- Discrimination arising from disability where a job applicant or employee is treated unfavourably because of something arising in consequence of their disability and it cannot be shown that the treatment is a proportionate means of achieving a legitimate aim (Section 15 (1) EA), also known as the “objective justification” defence.
- Indirect discrimination by applying a provision, criterion or practice that disadvantage job applicants or employees with a shared disability without an objective justification (Section 6 and 19 EA). In these circumstances, the "particular disadvantage" must affect those who share the claimant's disability (Section 6 (3) EA).
- Failure to comply with the duty to make reasonable adjustments where a disabled job applicant or employee is placed at a substantial disadvantage (Section 20 and 21 EA).
- Harassment when a person engages in unwanted conduct related to disability and the conduct has the purpose or effect of violating a job applicant or employees’ dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment (Section 26(1), EA).
- Victimisation of a job applicant or employee because they have made or intend to make a disability discrimination complaint under the EA, or because they have done or intend to do other things in connection with the Act.
- Asking job applicants pre-employment health questions other than for a prescribed reason.
How can an employer avoid causing disability discrimination in the workplace?
Chapter 18 of the Equality and Human Rights Commission (EHRC) Code of Practice provides guidance on the importance of having equality policies and practices in the workplace to assist employers with complying with their obligation under the EA.
Some examples include:
- Ensuring that you have effective equal opportunities or equality policies in place. An equal opportunities policy can help to set minimum standards of behaviour and reduce the risk of legal action (paragraph 18.3, EHRC Code).
- Provide regular training on equality and anti-harassment policies to ensure employees understand both their own and their employer's rights, duties and obligations.
- Carrying out equality monitoring during recruitment and employment to identify any inequalities and areas in which further support or changes are required to achieve equality of experience, to establish whether your Diversity Equality and Inclusion (DEI) policies are working in practice and to obtain the data from which DEI targets can be set.
- Widening diversity in senior leadership to ensure future diversity in succession planning.
- Reviewing recruitment and promotion practices.
- Signing up to equality initiatives, such as Disability Confident.
What happens if an incident of disability discrimination occurs?
ACAS have issued guidance on asking and answering questions about discrimination at work in an attempt to help resolve any issues without having to go through the formal employment tribunal process.
Firstly, an employee should write a written statement with details of what happened, including the events, the details of those involved, the type of discrimination experienced and the questions they would like to ask their employer.
An employer should then carry out an investigation and provide a response as soon as possible. There is no legal obligation for an employer to respond, however, a tribunal may consider whether a respondent has answered a claimant's discrimination questions and how they have answered them when reaching its overall decision on a claimant’s discrimination claim. Therefore, it is advisable for employers to respond as fully and as promptly to an employee's questions as possible.
If an employee is unhappy with the response, they can raise a formal grievance or make a claim to an employment tribunal, ensuring that they have complied with the ACAS conciliation process.
A discrimination claim must normally be submitted to an employment tribunal before "the end of the period of three months starting with the date of the act to which the complaint relates" (Section 123(1) EA). However, a Tribunal can extend this where it feels that it is just and equitable to do so (Section 123(1)(b) EA).
In a successful discrimination claim, a tribunal may make one or more of the following orders:
- A declaration of the rights of the parties.
- An order that the respondent pay compensation to the claimant.
- An appropriate recommendation as to what steps the respondent should take to reduce the adverse effect of discrimination on the claimant. (Section 124(2), EA)
If you have any concerns regarding discrimination in the workplace, seek legal advice.
Written by Paul Chamberlain
As head of JMW’s Employment team, Paul has 25 years’ employment law experience - law relating to recruitment, advising and providing training on employment status issues, Agency Workers’ Regulations, GLAA, Working Time Regulations and industry-specific regulatory compliance.