Disability discrimination – What is it?

It can be confusing to know how to deal with issues in the workplace which are connected with a disabled employee.  Is the employer supporting the employee in line with its culture?  What legal framework applies?  It is essential for an HR team to understand the basic legal position as a starting point. That has to start with being able to make an assessment of whether or not an employee is disabled and protected under the Equality Act 2010.

An employee has a disability if they have a physical or mental impairment which has a long-term and substantial adverse effect on their ability to carry out normal day-to-day activities.  Breaking that definition down:

A condition has a long-term and substantial adverse effect if it has:

More than just a minor or trivial impact on the individual’s life; and

Lasted or is likely to last for more than 12 months.

Day-to-day activities are those which an individual carries out in their home or work life, such as reading and writing, preparing and eating food, or taking part in social activities.

There are a few conditions which are automatically deemed to be disabilities, namely:

• Cancer;
• Multiple sclerosis;
• HIV infection;
• Severe disfigurement; and
• Blindness (including severe sight impairment, sight impairment and partial sightedness).

1. Direct discrimination: Where an employee or job applicant is treated less favourably than others because of a disability.
2. Indirect discrimination: Where a rule or requirement is applied that disadvantages employees or job applicants with a shared disability without the employer being able to justify it objectively. For example, a policy requiring in-office work only with no option for remote work could disadvantage a disabled employee with motor impairments who finds it difficult to commute to work every day.
3. Discrimination arising from disability: Where an employee or job applicant is treated unfavourably because of something arising in consequence of disability without objective justification.
4. Harassment: Where an employee or job applicant is subjected to harassment relating to a disability.
5. Victimisation: Where an employee or job applicant is victimised because they have made or intend to make a disability discrimination complaint.

An employee can bring disability discrimination claims against their employer in the employment tribunal. If such a claim is successful, an employment tribunal may:

• Order the employer to pay compensation. Compensation is based on the loss suffered by the employee and is uncapped. Loss can cover both financial and non-financial loss, including compensation for injury to feelings. In 2023/24, the average award for a disability discrimination claim was £44,483.
• Make an appropriate recommendation aimed at reducing the adverse effect of the discrimination on the employee.
• Make a declaration as to the rights of the employee.

Employers should also consider the effect that such a claim could have on their public reputation and staff morale, as well as the loss of management time and legal fees that are often involved in tribunal claims.

Employers are under a duty to make reasonable adjustments to help disabled job applicants and employees where:

1. An employer knows or could reasonably be expected to know that the person is disabled; and
2. The disabled person is at a substantial disadvantage due to:
   1. a policy or practice
   2. a physical feature of the workplace

• the absence of an auxiliary aid.

Adjustments can include things such as:

• Changing working arrangements (e.g. flexible hours, remote work)
• Modifying the physical environment (e.g. ramps, accessible toilets)
• Providing equipment or support
• Altering recruitment or promotion processes (e.g. giving extra time to complete tests)

What is considered reasonable is an objective test and will depend on the circumstances of the case, such as:

• Effectiveness of the adjustment.
• Cost and practicality.
• Size and resources of the employer.
• Impact on others (e.g. health and safety).

The duty to make reasonable adjustments arises where an employer knows (or should have reasonably known) that an employee is disabled. It is not sufficient for an employer to claim that it did not have actual knowledge of an employee’s disability. Employers should take reasonable steps and have systems in place to find out the relevant information and be aware of cases where the employee themselves is not fully aware of their disability.

The Equality and Human Rights Commission Code states that employers should do all they can reasonably be expected to do to find out this information, although it emphasises that “when making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially”.

• Write inclusive job descriptions using clear, jargon-free language, focusing on essential skills only and avoiding unnecessary requirements.
• Make application processes accessible. Ensure online platforms meet accessibility standards (like WCAG 2.1) and offer alternative formats.
• Offer reasonable adjustments at interview, for example, assistive technology or remote interviews. Employers should be proactive and ask candidates if they need adjustments when inviting them to interview.
• Train hiring managers by providing training on unconscious bias, disability awareness, and legal obligations. Employers should also emphasise to hiring managers the importance of objective, structured interviews to reduce subjectivity.
• Monitor by tracking diversity data and invite candidates to provide feedback on the interview process.