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Disability discrimination in the workplace

If you’re disabled then you have the right not to be discriminated against at work – a guide to disability discrimination in the workplace is laid out below

Table of contents

What is disability discrimination in the workplace

If you are working and are defined as disabled under the Equality Act 2010 then you are entitled to certain legal rights and protections. One of these protections is the protection from discrimination in the workplace because of your disability.

Disability discrimination in the workplace occurs when a disabled employee is treated unfairly because, or as a result of, their disability. Discrimination generally occurs if you are subjected to some form of detriment (i.e. any disadvantage) because of, or as a result, of your disability. Examples of detriment could be a failure to make reasonable adjustments to the workplace to accommodate you, disciplining you, failing to promote you, and dismissing you, among others.

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Examples of disability discrimination

The following are some examples (but not an exhaustive list) of when disability discrimination may occur in the workplace:

  • Your employer makes you redundant because you have a disability
  • Your employer has offices on the second floor of a building with no lift – this would be indirect discrimination if you were unable to properly climb stairs
  • One of your colleagues says something about disabled persons which you find offensive (whether you’re disabled or not)
  • Your employer dismisses you for a lack of punctuality but fails to investigate whether the punctuality issues had been caused by your disability
  • Your employer fails to make reasonable adjustments in the workplace to accommodate your disability

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The definition of disability under the Equality Act 2010

In order to make a claim for disability discrimination under the Equality Act 2010, you have to show that you are disabled for the purposes of the Act. This means that the burden of proof is on you to satisfy the Tribunal that you are in fact disabled and you must provide evidence to show this.

Under the Equality Act 2010 a “disabled person” is a person who has a “disability”. Section 6(1) reads:

A person has a disability if (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activitiess.6(1) Equality Act 2010

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Impairments which “automatically” qualify as disabilities

Cancer, HIV infection, and multiple scleroris are all “automatically” deemed to be disabilities under Schedule 1 of the Equality Act 2010. In some circumstances, partial sight may also be deemed to be a disability. Claimants who suffer from any of these impairments should obtain a letter from their GP or consultant (as relevant) to confirm that they suffer from the condition.

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Direct disability discrimination

Direct disability discrimination occurs when your employer treats you less favourably than other non-disabled employees (or employees who do not possess that particular disability) because of your disability.

The definition of direct discrimination under the Equality Act 2010 is:

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.s.13 Equality Act 2010
Example
An employee suffers from a disability and has to use medical equipment in the workplace because of this. His line manager disapproves of the use of the medical equipment in the workplace and fabricates a redundancy process to try to force the employee out. The employee is subsequently dismissed for the reason of redundancy. This would be direct disability discrimination.

If you think that you have been discriminated against because of your disability then there are three important things that you must show:

  1. That you have been subjected to some form of disadvantage – in the above example the employee’s dismissal is clearly a disadvantage
  2. That you were subjected to this treatment because of your disability – causation is an extremely important issue and you must be able to link the manner in which you have been treated and the reason why you (think you) have been treated in that manner
  3. That someone who doesn’t possess your disability (or particular disability) has or would have been treated more favourably than you – this may be an actual comparator (i.e. someone that you know has been treated more favourably) or a hypothetical comparator (i.e. a hypothetical employee who possessed similar attributes to you but not your disability or particular disability)

Employees may also be subject to disability discrimination even if they don’t possess a disability themselves. This can occur in the following circumstances:

  1. You are treated unfairly because of a protected characteristic (in this case a disability) that someone that you are associated with possesses e.g. a friend or a relative – this is known as “discrimination by association”
  2. You are treated unfairly because of a protected characteristic (in this case a disability) of someone that you do not even know i.e. customers or clients of the business; and/or
  3. You are treated unfairly because you are (incorrectly) perceived to possess a disability

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Indirect disability discrimination

Under the Equality Act 2010, indirect discrimination occurs when:

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if –  (a) A applies, or would apply, it to persons with whom B does not share the characteristic (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aims.19 Equality Act 2010
Example
Your disability means that you find it difficult to climb stairs but your employer’s office is located on the second floor of the building and there is no lift. This would be likely to constitute indirect disability discrimination.

There are a number of stages that you must go through to prove that they have been indirectly discriminated against because of your disability:

  1. You must show that a practice, criterion or provision (“PCP”) has been applied to you – a PCP is generally some form of requirement, condition or practice that your employer operates e.g. the requirement that you have particular qualifications, that you have certain types of previous work experience, or that the employer over-burdens employees with work (among other things)
  2. That this PCP has been applied to you and other people who are not of your disability (or particular disability)
  3. That the PCP puts people with a disability (or a particular disability) at a particular disadvantage as compared to those whom do not share the disability (or particular disability)
  4. That the PCP does in fact put you at a disadvantage because you have that disability (or particular disability)

Unlike direct disability discrimination, there is a defence available for employers should an employee succeed with a claim for indirect discrimination. This defence is known as the “objective justification” defence. In order to succeed with an objective justification defence the employer must show that the PCP which put you at a particular disadvantage was a proportionate means of achieving a legitimate aim.

Indirect discrimination claims often tie in with failure to make reasonable adjustment claims. Indirect discrimination is a complex area of law

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Discrimination arising from disability

Discrimination arising from disability occurs when a disabled employee is subjected to unfavourable for a reason arising in consequence of their disability.

Discrimination arising from disability is defined under s.15 of the Equality Act 2010:

A person (A) discriminates against a disabled person (B) if –  (a) A treats B unfavourably because of something arising in consequence of B’s disability; and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aims.15 Equality Act 2010

Example

You suffer from multiple sclerosis and suffer problems with your legs and bowels which means that you find it difficult to get to work on time in the mornings. Your employer is aware that you suffer from multiple sclerosis but makes no effort to find out what the effects of the condition are or whether it is affecting your performance at work. You are then fired without notice because of issues with your punctuality. This would be disability discrimination and you would be entitled to make a claim for discrimination arising from disability.

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Failure to make reasonable adjustments for disability

If you suffer from a disability then your employer has a duty to make reasonable adjustments for your disability if you suffer from a substantial disadvantage at work because of some facet of your workplace. A failure to make reasonable adjustments constitutes unlawful discrimination.

Under section 20 of the Equality Act 2010, the duty to make reasonable adjustments applies when:

(1)Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2)The duty comprises the following three requirements.

(3)The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4)The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(5)The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.s.20 Equality Act 2010

Example
An employer has a policy that designated car parking spaces are only offered to senior managers. A worker who is not a manager, but has a mobility impairment and needs to park very close to the office, is refused a designated parking space and no reason is given. This is likely to constitute a failure to make a reasonable adjustment.

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Harassment because of disability

It is disability discrimination if a colleague is harassing you or anyone else because of a disability. You may be able to take action about this.

“Harassment” occurs under s.26(1) of the Equality Act 2010 when:

(1) A person (A) harasses another (B) if –  (a) A engage in unwanted conduct related to a relevant protected characteristic, and  (b) the conduct has the purpose or effect of –  (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for Bs.26(1) Equality Act 2010

You can therefore make a claim for disability-related harassment if, for example, one of your colleagues makes a remark at work about disabled people (or about your particular disability) which you find violates your dignity or humiliates you.

Example
If a worker with a hearing impairment is verbally abused because he wears  a hearing aid, this could amount to harassment related to disability

Employers are also liable for the harassment of their employees under s.40 of the Equality Act 2010 (although there is a defence available to employers under s.109 Equality Act 2010).

Harassment need not be related to your disability – you can claim that you have been harassed if, for example, you are not disabled but a colleague makes a derogatory remark about disabled people which offends you.

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Victimization

It is unlawful for you to be victimized because you have done a “protected act” (i.e. because you have complained of discrimination in any way).

Victimization is defined under s.27 of the Equality Act 2010:

(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.s.27 Equality Act 2010

If you are subjected to any detriment because you have brought a claim under the Equality Act 2010, because you have given evidence in any claim for discrimination or, for example, you have made an allegation that your employer has breached the Equality Act 2010, then you may be able to make a claim for victimization to the Employment Tribunal.

Example
An employer threatens to dismiss a staff member because he thinks she intends to support a colleague’s discrimination claim. This threat could amount to victimisation, even though the employer has not actually taken any action to dismiss the staff member and may not really intend to do so.

Pre-employment health questions and disability discrimination

You may have been discriminated against because of your disability if a prospective employer asked you questions about your health before offering you a job.

Except in the specific circumstances set out below, it is unlawful for an employer to ask any job applicant about their disability or health until the applicant has been offered a job (on a conditional or unconditional basis) or has been included in a pool of successful candidates to be offered a job when a position becomes available. This includes asking such a question as part of the application process or during an interview. Questions relating to previous sickness absence are questions that relate to disability or health.

However, there are six situations in which it may be lawful for an employer to ask you questions relating to your disability or health:

  1. To ask questions relating to reasonable adjustments that would be needed for an assessment designed to assess a person’s suitability for the job
  2. To ask questions to determine whether you can undertake an assessment as part of the recruitment process
  3. To ask you questions about disability and health for the purposes of monitoring the diversity of applicants
  4. To ask you if you have a disability for the purpose of determining whether you may benefit from any measures aimed at improving disabled people’s employment rates
  5. If a job has an occupational requirement that means a person with a particular impairment then the employer can ask you questions to determine whether you have that impairment
  6. To ask questions about health and disability can be asked where there is a requirement to vet applicants for the purposes of national security
ExampleA construction company is recruiting scaffolders. It would be lawful under the Act to ask about disability or health on the application form or at interview if the questions related specifically to an applicant’s ability to climb ladders and scaffolding to a significant height. The ability to climb ladders and scaffolding is intrinsic to the job.

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Applying for jobs if you are disabled

It is unlawful to discriminate against you because you are disabled if you are applying for a job. Your employer can only ask you questions about your health in limited in circumstances (see above) and must not make a decision not to employ you because of your disability. If you do think that you have been discriminated in a job application because of your disability then you may have a claim for disability discrimination in the Employment Tribunal.

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Action you can take if you think that you’re being discriminated against

If you think that you are being discriminated against or harassed because of your or another person’s disability then you should take action as soon as possible. Below are some examples of what you can do:

  • Inform your line manager that you believe that you are being discriminated against. Make sure that you put a complaint in writing (preferably by email so that there is a time and date stamp on the complaint and you can prove that it has been sent to the relevant person) and keep a copy. If you think that it is your line manager who is discriminating against you then make a complaint so someone else in a position of authority in your organisation.
  • Make a formal complaint (known as a “grievance”) to your HR department and also keep a copy of this
  • Obtain specialist advice from a qualified person – you can either consult a lawyer directly or make an appointment with the Citizens Advice Bureau to obtain initial advice
  • Collect evidence of the incidents that you think are discriminatory. An important thing to do is to keep a diary of all of the incidents of discrimination that you think that you have suffered and to record exactly who was involved and what happened. Try and obtain any witness evidence that you can from colleagues who have seen or heard things. Keep any letters, emails, minutes of meetings etc. that you think are relevant.

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Making an Employment Tribunal claim for disability discrimination

If you want to make an Employment Tribunal claim for disability discrimination then you must do the following:

  • Make your claim within three months of the last date of discrimination (this is also known as the “limitation date”). The last date of discrimination can often be difficult to pinpoint so you must be extremely careful that you do not fall outside of the three-month period
  • Since May 2015 you must also apply to ACAS for a certificate of early conciliation – if you fail to do so then you will not be able to bring your claim in the Employment Tribunal (unless very limited exceptions apply)
  • Obtain evidence from a relevant medical professional that you are in fact disabled
  • Gather enough evidence to allow you to prove your case in the Tribunal – this includes both documentary evidence and, if applicable, witness evidence.

It’s important to note that (unlike, for example, unfair dismissal claims) you don’t need to have worked for your employer for any particular length of time to make a claim for disability discrimination – you have the right to do this from “day one”.

You may have to pay a fee to issue your claim for discrimination unless you qualify for a fee remission. You may also have to pay a fee for the Employment Tribunal hearing – again, you may not need to do so if you qualify for a fee remission.

Details of when you may qualify for a fee remission are available in the EX160A form on the Ministry of Justice website.

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What happens if you’re victimized for making a complaint of disability discrimination?

If you do any of the acts listed below (known as a “protected act”) and are then subjected to any form of detriment or dismissal because you have done so then you may be able to make a claim for “victimization” under the Equality Act. A protected act can include:

  • Making or threatening to make an informal or formal complaint about disability discrimination within your organisation
  • Helping a colleague to make a complaint or helping them with their Employment Tribunal claim regarding disability discrimination
  • Making or threatening to make an Employment Tribunal claim for disability discrimination

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Call Redmans on 020 3397 3603 or email us at enquiries@redmans.co.uk to discuss your employment law matter.

Alternatively, you can call Chris Hadrill, the partner responsible for the employment department, on 020 3397 3601 or email him at chadrill@redmans.co.uk.

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