Solving Employment Issues

Our Solving Employment Issues information is provided by Slater and Gordon, Edinburgh

In the UK, discrimination of individuals in the workplace because of their disability is prohibited by the Equality Act 2010. This applies to access to employment and recruitment, how you are treated and opportunities you are afforded during employment as well as in regards to vocational training.

It is unlawful to treat a disabled person unfavourably because of their disability, to require a disabled person to act or perform the same way as a non-disabled person if because of their disability they cannot, and disabled workers should not be subjected to harassment or victimisation. Sometimes discrimination can be justified by the employer (and therefore not unlawful) where it is necessary and proportionate for an employer to do what they have done. But of course, harassment and victimisation cannot ever be justified.

Certain behaviour prohibited by the Equality Act 2010 does not have to be directly committed by the employer, as the employer will be responsible in many scenarios for actions of employees and agents acting on their behalf.

Importantly, your employer must have knowledge that you are a disabled person before it can have discriminated against you because discrimination is about WHY you have been treated the way you have.

Below is a summary of the types of unlawful discrimination in the workplace.

It’s unlawful for an employer to treat someone less favourably than a non-disabled person because of their disability. Section 13 of the Equality Act 2010 requires that ‘like must be compared with like’, so the less favourable treatment must be compared with that of someone who doesn’t have the disability, but whose position is the same or not materially different in all other respects, including abilities.

Direct discrimination can not be justified. For example, if adverse comments are made about your disability, this could amount to direct discrimination, because your colleagues would not be spoken to in this way, and the comments relate to your disability. Your employer or colleagues may discriminate against you without intending to do so (in some cases it can be subconscious).

In order to bring a case for direct discrimination, you must be able to prove that you have been treated less favourably and that treatment was because of your disability.

Where you may not be able to show less favourable treatment than a non-disabled person, you may be able to show instead that you have been treated unfavourably because of something arising as a consequence of disability (which is slightly broader and sometimes easier to apply in reality). If a disabled person is treated unfavourably because of something arising in consequence of disability, then the employer must objectively justify that treatment. It is not necessary for the employer to know that the “something arising in consequence” is actually connected to the disability (as this may require an in-depth knowledge into the disabled person’s condition/lifestyle).

For example, if a disabled person needed to take sick leave for disability-related reasons, and was disciplined as a result of disability-related sick-leave, that may be unfavourable treatment and a case for discrimination arising from disability may be able to be brought. An employer may be able to justify why it has treated you unfavourably, by explaining that the treatment was necessary for a good, business-related reason.

Indirect discrimination can occur in the workplace when an employer has a particular policy or applies a particular rule or procedure to everyone, however, it puts someone with a disability at a substantial disadvantage when compared to people without that disability.
For example, if an administrative role requires the applicant to type at a certain word speed, but a person has severe dyslexia and so types at a slower rate, then the criteria of a particular number of words per minute may discriminate against that disabled person.

If you believe that the policy, rule or procedure in place has put you at a disadvantage because of your disability, you can raise or challenge this both before (in order to have it changed or dis-applied to you) or after the fact (if you have been disadvantaged by something).

There are certain cases in which an employer would be able to justify indirect discrimination but they would have to prove that there’s a good reason for implementing this policy, rule or procedure and that they’ve considered the impact and tried to find an alternative solution.

Employers have a duty to make reasonable adjustments (for example finding alternative solutions as above) where working practices or features of the employer’s premises put a disabled person at a substantial disadvantage, as compared to non-disabled colleagues. Where that duty arises, the employer must make reasonable adjustments to remove or minimise the disadvantage. The failure to do so can amount to unlawful discrimination, again unless that discrimination can be justified. Normally the cost of making an adjustment is not a good enough reason for failing to make an adjustment.

Factors which may help determine whether an adjustment would be reasonable include the size and resources of the organisation, and the impact of the adjustments on the workplace. There’s no financial cap on the possible cost of a reasonable adjustment, and the employee does not have to show that the adjustment will definitely alleviate the disadvantage, so long as there is a prospect that it will.

Only a disabled person has a claim for a failure to make reasonable adjustments under the law as it stands, and not those who assist or care for a disabled person.

Discrimination by way of victimisation occurs when you’re treated unfavourably because you’ve done, you’re about to do, or you’re suspected of doing a ‘protected act’. A protected act includes:

• Bringing a complaint, grievance or claim against your employer that relates to discrimination;
• Giving evidence or information to help someone else bring a claim under the Equality Act 2010;
• Making an allegation that someone/your employer has breached the Equality Act 2010;
• Doing anything else in relation to the Equality Act 2010;

For example, if you’ve made a complaint about your employer about disability discrimination under the Equality Act 2010 and are later treated unfairly or unfavourably, or even dismissed (even if for another reason) this could amount to victimisation.

If someone with a disability, or someone who is perceived to be disabled, is the subject of unwanted and unwelcome behaviour which violates their dignity or creates an intimidating, hostile and humiliating environment, it’s harassment.

Unwanted behaviour having this effect may include derogatory or stereotypical labels, inappropriate jokes, teasing or circulation of cartoons. Any form of threats, abusive emails, abusive comments on social media, and any form of physical intimidation or aggressive conduct will, of course, be harassment. Even more subtle forms, such as facial expressions and gestures could be harassment if unwanted.

Download Slater and Gordon’s ‘Disability Discrimintation fact sheet‘ for more information.

If you think you have a case for disability discrimination in the workplace, you should contact a lawyer who specialises in discrimination and employment law as soon as possible as there are strict time-limits to adhere to which need to be considered when bringing a case for discrimination to ACAS and the Employment Tribunal.

If you think you have suffered disability discrimination in the workplace or have any queries, please don’t hesitate to contact one of our specialists on 0800 884 0384 or email [email protected]