If you are disabled, you are protected from disability discrimination in the workplace by the Equality Act 2010. Drawing on the provisions of this Act, we summarise below some of the key issues and practical steps that you can take if you are disabled and/or are being discriminated against because of your disability.
This guide covers:
- What is disability discrimination?
- What is a disability?
- Types of disability discrimination
- Reasonable adjustments to job roles and pay protection: new case law
- Advice for disabled employees needing reasonable adjustments
- Raising a grievance to resolve your disability issues at work
- Taking a disability discrimination claim to an employment tribunal
- Next Steps
What is disability discrimination?
Disability discrimination at work occurs if you are treated worse than other employees who don’t have a disability, or are disadvantaged in some way just because of your disability.
A discriminatory act against you might only occur once, or it could be potentially ongoing in the form of a workplace policy, or physical/communication obstruction which prevents you from accessing something that you need for your job.
What is a disability?
Under the Equality Act, you’re classed as disabled ‘if you have a physical or mental impairment that has a substantial and long-term negative effect on your ability to do normal daily activities’. (‘Definition of disability under the Equality Act 2010’ – GOV.UK)
Types of disability discrimination
As is the case with other forms of discrimination (see our overview article on Discrimination), the law recognises different types of disability discrimination. Those for disability are:
- Direct discrimination
- Indirect discrimination
- Discrimination arising from disability
- Failure to make reasonable adjustments
Looking at each of these in turn:
1. Direct disability discrimination
Direct disability discrimination occurs if someone at your place of work treats you less favourably because of your disability than another person who doesn’t have a disability.
Examples include: deciding not to employ you, denying you training or promotion, giving you less favourable terms and conditions or even dismissing you – just because you are disabled.
2. Indirect disability discrimination
Indirect disability discrimination is when your employer has adopted policies or practices that adversely affect you more than they affect colleagues who aren’t disabled. One of the main differences between this and direct discrimination is that here, the policy/practice is permissible if an employer can show that there is ‘objective justification’ for it.
The following example is taken from the Equality and Human Rights article on: ‘Disability Discrimination‘:
‘A job advert states that all applicants must have a driving licence. This puts some disabled people at a disadvantage: they may not have a licence because, for example, they have epilepsy.
If the advert is for a bus driver job, the requirement will be justified. If it is for a teacher to work across two schools, it will be more difficult to justify.’
3. Discrimination arising from disability
Discrimination arising from a disability may arise because of needs you have which arise from your disability, rather than from the disability itself.
For example, because of your disability, you may need an assistance dog, or more frequent toilet breaks than other employees, or regular absences from work because of hospital/medical appointments. If your employer makes life difficult for you because of needs like these, then that is discrimination arising from disability.
However, this kind of discrimination can only occur if your employer knew or should have taken reasonable steps to find out, that you had a disability.
The only time that discrimination arising from a disability may be lawful is when/if your employer can show that the treatment can be justified and that it is ‘proportionate’ (which in plain English means that the goal achieved by the discrimination must outweigh the disadvantage incurred by the discrimination).
4. Harassment related to disability
This is when – because of your disability – you are treated in a way which makes you feel humiliated, offended, intimidated or belittled, or which creates an environment resulting in you having those feelings.
So for example, if you have an evident physical disability, you may be called unpleasant names which refer to that disability, or taunted because you may not be able to do some things as deftly or as quickly as your able-bodied colleagues.
Harassment in the workplace is of growing concern (see our article on bullying and harassment). However, you would only have a chance of successfully claiming against your employers for harassment related to your disability if they had failed to do everything possible to prevent the perpetrator(s) from harassing you.
This is when you are singled out for bad treatment (eg told that you won’t be promoted, or threatened with dismissal) because you have complained about disability discrimination in your workplace, or because you are assisting (or thought to be assisting) someone with their disability claim.
6. Failure by employers to make reasonable adjustments
To prevent disability discrimination the law requires employers to make reasonable adjustments to accommodate employees who have a disability.
There are three types of adjustments:
- To property and premises e.g. installing a lift, ramp or handrails in the office
- To provide auxiliary aids e.g. provision of alternative equipment like a large computer screen or an ergonomic chair
- To practices and policies e.g. changing the employee’s job description to vary duties
What is reasonable when it comes to making the first two types of adjustments above is not defined in law. It will depend on the circumstances of the case such as the nature of the adjustment, the costs involved, the size and resources available to the employer etc.
Each case will be different and what is reasonable for one employer in one set of circumstances is not necessarily the same for another employer.
However, it has long been established that an employer’s obligation to make reasonable adjustments includes making reasonable adjustments to job roles and descriptions.
For example, if you are unable to perform certain aspects of your job due to a disability, then your employer is obliged to consider making adjustments to the job description, to remove the duties that you can’t perform, or to consider offering you another role within the organisation.
Reasonable adjustments to job roles and pay protection: new case law
What has been less clear until recently has been whether an employer who moves an employee to a new post due to the employee’s disability is required to pay that employee the same salary as for the old post even if the new post has a lower salary i.e. whether ‘pay protection’ (as it is called) is a reasonable adjustment.
In a recent ruling, the Employment Appeal Tribunal decided that an employer who had moved an employee from a job he could no longer perform due to his disability to another less skilled, and lower-paid role, should have continued to offer pay protection to that employee. It was therefore disability discrimination to have implemented a wage cut.
The Tribunal said that there was no reason in principle why pay protection could not constitute a reasonable adjustment. However, the Tribunal did not say that pay protection had to carry on permanently.
As always, the matter had to be judged according to the circumstances of the case at a given time, changed circumstances may mean the adjustment ceased to be a reasonable one which the employer was obliged to make.
Advice for disabled employees needing reasonable adjustments
The first thing to do is to ensure your employer is aware of your disability. If your employer is not aware of your condition it cannot be held responsible for not making reasonable adjustments. Not every condition will constitute a disability (see earlier definition).
The next thing is to assess what difficulties you are facing in your job or workplace due to your disability and consider the options on what changes would alleviate those difficulties.
For example, it could be that you have a condition which makes it difficult for you comfortably to use existing office equipment like the desk and chair and that you need especially designed ergonomic equipment.
Another example could be that you have more absences than non-disabled colleagues due to your condition. So, you want your employer to make an adjustment to the attendance policy (to relax the attendance requirements/ targets in your case) so that you are not subject to the same process as that which would apply to other colleagues.
Once you have identified your disability and proposed any solutions to your employer it will then be for the employer to make a decision. A good employer would refer the matter to an occupational health assessor for a medical opinion on the disability and what steps would constitute a reasonable adjustment.
In the event that your employer does not seek a medical assessment or the outcome of the assessment is not one you agree with, then you could seek to get a medical opinion of your own accord to support your position for example from your GP.
In the event that there is a conflict of opinion between two medical assessments, then your employer will have some leeway to choose which opinion to follow.
You should also seek out support and guidance from organisations like Disability Rights UK and the Equalities and Human Rights Commission which can provide useful information and signposting. Access to Work is a scheme under which employees can secure specific funding to assist employers to make reasonable adjustments, subject to assessment.
Raising a grievance to resolve your disability issues at work
If your employer is not acknowledging or addressing your situation you should in the first instance raise a grievance formally setting out your complaints. Most employers will have written grievance and equalities policies that provide a complaints process.
Taking a disability discrimination claim to an employment tribunal
If your employer is failing to make reasonable adjustments, despite being made aware of your disability, you also have the option to pursue legal action against your employer for disability discrimination in the employment tribunal.
A claim for disability discrimination against your employer must be made within a period of 3 months less one day from the date of the discrimination. In the case of a failure to make reasonable adjustments, the deadline will be 3 months less one day from the date the employer made the decision not to offer the reasonable adjustment(s) to you.
This deadline will not be suspended just because you are raising a grievance about the situation, so legal action must not be delayed even if you have started an internal complaint.
If you find that your employer is still discriminating against you because of your disability – despite your best efforts to get them to resolve the issues informally – then you can either ‘go it alone’, or consider getting legal help. Your main options are:
- A legal letter: you may not want to leave your employment, but simply to get your employer to act to resolve the issues which your disability gives rise to at your workplace. In that case, a legal letter that you could try compiling yourself (maybe using our legal letter builder app), or asking an employment law solicitor to write on your behalf, may be sufficient.
2. A settlement agreement: If you decide you’ve had enough and want to leave your employment, then a good employment lawyer can help you negotiate compensation with your employer by way of a settlement agreement.
3. An employment tribunal claim: If your employer still won’t oblige, then a last resort could be an employment tribunal claim, which a suitably experienced specialist employment lawyer can most certainly help you with.
If you would like our help with any of the above, please do get in touch. Monaco Solicitors are an established firm of employment solicitors who only handle claims on behalf of employees (not employers). All of our legal team are fully qualified experienced senior lawyers and include disability discrimination claims specialists.
You might also like to read our related guides below:
- Discrimination at work
- Mental health discrimination
- Tribunal award for disability discrimination
- Discrimination questionnaire
- Evidence gathering for disputes
- Evidence: record keeping
- Evidence: taking written material
- Grievance procedures
- Grievance meetings
- Grievances: how to write one
- Settlement agreements: how much?
- Negotiating settlements
- Employment tribunals
- Tribunal claims time limits