Disability discrimination
Introduction to disability discrimination
The Equality Act 2010 makes it unlawful to discriminate against someone because of their disability, their perceived disability or because they associate with someone who has a disability. This would, for example, include an able bodied person who cares for a disabled family member.
It is also unlawful to indirectly discriminate against a person because of their disability by imposing a provision, criterion or practice, which puts them at a disadvantage when compared to others.
The Equality Act also requires employers to make reasonable adjustments to remove disadvantages to the disabled individual’s working conditions, whether that is a physical feature or a working practice.
Definition of a “Disability”
The definition of disability covers anyone who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The effect of an impairment is long term if it has lasted, or is likely to last at least 12 months or it is likely to last for the rest of the life of the person affected.
Examples of disabilities include diabetes, epilepsy, long term depression, and sleep apnoea. Severe disfigurement is also considered to be disability.
Some conditions automatically constitute disabilities even if they have not got to the stage where they have a substantial effect, these are HIV, Cancer and MS.
Duty to make “Reasonable Adjustments.”
The times when an employer is obliged to consider making reasonable adjustments includes:-
· When recruiting and interviewing for an employee
· When an employer becomes aware of an employee’s disability
· If an employee asks for adjustments to be made
· If an employee is having difficulty with any aspect of their job
· If an employee’s sickness record, length of sickness absence or delay in returning to work while off sick is linked to their disability.
In appropriate cases, reasonable adjustments could include:-
· Making adjustments to the employee’s duties
· Allowing the employee more time to carry out a part of their duties
· Adaptations to their work station, equipment or seating
· Adjustments to their working hours or breaks
· A phased return to work following illness
· Allowing the employee to work from home
· Allowing time off for treatment
· Access to facilities for the control of their condition
· Availability of written material in large print
· Disregarding disability related sickness absences when operating an attendance management programme
· More time to pass their probationary period
· Redeploy the employee to an existing vacancy
Not all these examples would be appropriate in all circumstances, the key question is whether the proposed adjustment is reasonable. What is reasonable, may depend on:
· the extent to which taking the step would prevent the effect in relation to which the duty is imposed;
· The extent to which it is practical for the employer to take the step;
· The financial and other costs which would be incurred
· The extent to which taking it would disrupt any of his activities;
· The extent of the employer’s financial and other resources;
· The availability to him of financial or other assistance
· The nature of the employer’s activities and the size of the undertaking;
A detailed guide for employers on making reasonable adjustments is available from the Equality & Human Rights Commission
The code of Practice gives practical guidance on how to prevent discrimination against disabled people.
Financial assistance may be available to employers through “Access to work” which is available from Job Centre Plus
Scope of unlawful disability discrimination
The scope of unlawful discrimination against job applicants and employees includes prohibition of discrimination in offering employment, in the terms of employment, refusing employment, in the way the employer provides access to promotion, transfer, training or receiving any other benefit, subjecting a person to a detriment or dismissing them.
Disability related harassment is also unlawful. Harassment is defined as unwanted conduct which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading humiliating or offensive environment.
It is also unlawful to victimise someone for complaining about disability discrimination.
Pre-employment Health Questionnaires
The Equality Act 2010 prohibits employers asking job candidates questions about their health unless it is to check that the candidate can perform an “intrinsic function” of the job, to see if any adjustments to the recruitment process need to be made, or to monitor their compliance with Equal Opportunities.
Any other questions about a candidate’s health for any other purpose must wait until they have been offered employment.
Enforcing rights
Claims of unlawful discrimination can be brought by job applicants, employees, workers, contractors, and others by issuing a claim in the Employment Tribunal. There is no qualifying period of employment, before a claim can be made, but any claim must be registered with the Tribunal within 3 months of the last incident of discrimination.
A guide incorporating the questionnaire is produced by the Disability Rights Commission.
Employers are liable for the discriminatory conduct of their employees even if they did not know about it at the time. Exceptionally, if an employer has done all it can do to prevent unlawful discrimination, it may be able to avoid liability.
Claims can also be brought against the individuals who caused the discrimination, employees might choose to do this because they want the individual to be liable for what they did, if there is a risk that the employer can avoid liability, or if there is a risk of the employer’s business going into liquidation.
Links
DWP guidance on employing disabled people
Equality and Human rights Commission
Royal National Institute for the Blind
Royal National Institute for the Deaf
Disclaimer
Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.