What is disability discrimination?

Recent statistics published by Scope UK – the disability equality charity - indicate there are an estimated 4.4 million people with a disability in employment.

According to survey results published by the TUC in June 2021, nearly one in three disabled workers say that they’ve been treated unfairly at work in the previous two years.

The survey results also reveal that many disabled people report that they experienced significant barriers in the workplace before the pandemic, and that Covid-19 has made things worse for them.

There are many steps businesses can take to tackle disability discrimination in the workplace. In this post we will be discussing these alongside different types of discrimination. We will also look at the Equality Act 2010 and some of the resources available to help employers support disabled team members.

What is disability discrimination? 

Who is a disabled person? 

Invisible disabilities

Examples of disability discrimination in the workplace

When can discrimination happen? 

Three resources for supporting employees with disabilities 

What is disability discrimination?

The Equality and Human Rights Commission defines disability discrimination as being:

‘When an employee is treated less well or put at a disadvantage for a reason that relates to their disability in one of the situations covered by the Equality Act.

The treatment could be a one-off action, the application of a rule or policy or the existence of physical or communication barriers which make accessing something difficult or impossible’.

It is important to remember that discrimination does not have to be intentional to be unlawful. It’s therefore vital that employers, people responsible for HR and managers understand what constitutes discrimination and take appropriate action as and when it is identified.

Who is a disabled person?

It’s important to understand what is considered to be a disability along with the conditions which are not considered to be impairments and therefore are not covered by the Equality Act, e.g. addictions to alcohol or other non-prescribed substances.

The General Medical Council defines a legal definition of disability & provides examples of physical and mental health conditions covered by the law. In terms of a broad legal definition, an employee is considered to be disabled if they have a mental or physical condition which:

• Makes it difficult for them to carry out normal daily activities (which will usually include their normal day-to-day activities at work).
• Has more than a minor or trivial adverse effect.

 The rights of disabled employees and their legal protection from discrimination at work and in wider society are set out in the Equality Act 2010. This consolidates more than 116 existing pieces of legislation which cover discrimination, including the Sex Discrimination Act 1975, the Race Relations Act and the Disability Act 1995.

Deciding whether someone is covered by the definition of disability as provided in equality legislation can be complex and time-consuming. Seeking advice from employment law and HR professionals is highly recommended, if you have any doubts. Breathe’s HR Partner directory includes the details of numerous HR consultants and experts.

Invisible disabilities

An employee may have a disability which is not visible to colleagues and employers but nevertheless, is a condition that creates challenges and needs which must be accommodated.

People are often not forthcoming with their disabilities, frequently due to a perceived stigma or lack of acceptance and understanding. As an employer, it’s your responsibility to encourage these people to ask you for help, so you can support hidden disabilities in your workplace.

Some examples of hidden disabilities include:

• Autism
• Brain injuries
• Chron’s Disease
• Chronic Fatigue Syndrome
• Chronic pain
• Cystic Fibrosis
• Depression, ADHD, Bipolar Disorder, Schizophrenia, and other mental health conditions
• Diabetes
• Rheumatoid Arthritis
• Visual and auditory disabilities(These may be invisible if someone wears contact lenses and a hearing aid, for example)

Examples of disability discrimination in the workplace

Scope UK identifies four basic examples of discrimination:

• An employer not providing reasonable adjustments that would help a disabled person to do their job
• An employer withdrawing a job offer when they learn of someone’s condition
• An employer firing an employee due to disability-related absences
• Workplace bullying because an employee is disabled

Scope UK also describes different types of discrimination. These include:

Direct discrimination

This is when an employee is treated less favourably because of their condition. For example, if an employer does not offer the employee a place on a training course because it is assumed that the employee would find it difficult to travel and attend a place of learning.

Another example is a job candidate who mentions they suffer from clinical depression during an interview and the employer decides not to offer them the position as it is assumed they will need a lot of time off from work. In this case the candidate could have a case for direct discrimination.    

Indirect discrimination

Indirect discrimination happens when an organisation has a particular policy or way of working that has a worse impact on disabled people compared to people who are not disabled. It could be a rule, policy or practice which seems to apply equally to everyone, but which puts disabled people at an unfair disadvantage.

An example is an employer who only offers promotions to people who have a driving license and can drive, even though this is not a key requirement for of the job. This could indirectly discriminate against an employee who suffers from epilepsy.

Harassment

Harassment occurs when someone treats you in a way that makes you feel humiliated, offended or degraded. For example, when a disabled woman is regularly subjected to offensive language and called names by colleagues at work because of her disability.

Victimisation

Victimisation at work is when you are treated poorly or unfairly because you have made a complaint related to a protected characteristic such as disability or you have helped someone else who has raised a complaint and are seen to be siding with them and are then treated badly.

Failure to make reasonable adjustments

This can be complex as there is no set definition of what is ‘reasonable’. However, depending on the job and workplace, if an adjustment can be made to accommodate the needs of a disabled employee relatively easily, then this could be deemed reasonable. If in doubt, this is another area where professional advice is highly beneficial.

When can discrimination happen?

A disabled employee can face discrimination at any stage of their employment. This can range from initial job applications and interviews, through to day-to-day work, promotions, pay rises and the termination of a contract.

Although it is unlawful for an employer to ask an employee about a disability during an interview, the candidate may request reasonable adjustments at this stage of their application, which may also apply if they are offered a position.

Three resources for supporting employees with disabilities

ACAS have detailed guidance on the subject and a great overview which is ideal for employers, managers, disabled employees, workers and job applicants. This guide covers:

• Reasonable adjustments
• Disability discrimination
• Supporting mental health at work
• Discrimination and the law
• Improving equality, diversity and inclusion in your workplace
• When an employer may make a decision based on a disability
• Working safely during COVID-19

The government has a dedicated guide for employers. It aims to help increase their understanding of disability and enable them to recruit and support disabled people and those with long term health conditions in work.

The Chartered Institute of Personnel Development (CIPD) is a Disability Confident Leader and committed to supporting employees and employers. They offer a guide which includes advice on governance and best recruitment practice, such as the Recruitment Charter launched by the organisation’s Business Disability Forum. The CIPD’s guide also links to various factsheet and useful external resources.