DISABILITY RIGHTS

The Equality Act 2010 makes it unlawful for employers to discriminate against Disabled people when in work, including their terms and conditions, benefits, opportunities for promotion, performance review(s), the handling of any absence(s), pay, training and development, and the termination of employment.

A person is considered Disabled under the Equality Act 2010 and qualifies for protection if:

• They have a physical or mental impairment, and

• The impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

• Impairment is long-term if lasting (or likely to last) more than 12 months. This includes fluctuating conditions recurring for 12 months or more.

People with some impairments are automatically protected by the Equality Act 2010, for example blind and severely visually impaired people, people with HIV, cancer, MS. If a person has a progressive condition they are protected, even at early stages when their impairment does not yet have an impact on day-to day life.

Whether an employee is Disabled or not is a legal question made by an Employment Tribunal or higher court. However, advice from an occupational health professional can give an employer a basis for management decisions. 

The Equality and Human Rights commission has more detailed information on what disability discrimination means under the Equality Act 2010 and who is protected.

Discrimination arising from Disability

It is unlawful for an employer to treat a Disabled person worse than they would a non-Disabled person who shares the same circumstances. 

To be culpable of a discriminatory act, an employer must know (or ought to have known) that someone is Disabled when the alleged act took place.

Different treatment of a Disabled employee may be justified by showing there is a good reason and it is proportionate. Proportionate means there are no other ‘less discriminatory’ ways for an employer to achieve the outcome they want. When deciding this, the employer must consider what reasonable adjustments they can make. 

Indirect Discrimination

It is unlawful for employers to apply a policy, a rule or do things in a way that has a worse impact on Disabled people compared to non-Disabled people. However, an employer can justify that policy, rule or way of doing things by showing there is a good reason and it is proportionate.

Reasonable Adjustments

Employers are required by law to make reasonable adjustments to remove barriers Disabled employees face at work.  This applies to rules, policies or practices that put a Disabled person at a disadvantage. If there are physical barriers in the work environment, reasonable steps should be taken to remove the disadvantage. This duty also means an employer may have to provide equipment or support which can help to remove barriers. What is ‘reasonable’ is ultimately decided by an Employment Tribunal, if this is disputed.

Access to Work

This government scheme gives grants to pay for practical support for Disabled people at work. Further information and application details: https://www.gov.uk/access-to-work

Harassment and victimisation

Employers must not create or tolerate an environment that is intimidating and violates someone’s dignity as a Disabled person.

Employers must not retaliate or treat an employee differently because they complained about discrimination or helped others to do so, or because they might complain about discrimination, or help others to do so.

Further information: https://www.acas.org.uk/disability-discrimination