January 18, 2023

Disability Rights in the workplace – what you or your clients need to know

Posted in Amputation, Employment, Injury, Team Around the Client

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Matthew Hendra

Senior Associate

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The UK has a legal framework to protect disabled people, including an obligation on all employers to remove disadvantages experienced by disabled people in the workplace.

While the percentage of disabled people in work continues to lag behind non-disabled employees, there are positive signs that the gap is closing, albeit slowly. The percentage gap has reduced from 40% in 1998 to 28% in 2021, with 53.5% of disabled people in work compared to 81.6% of non-disabled people.

Despite these encouraging signs, physical and unseen barriers remain for disabled employees and job applicants. It is vital for disabled people to understand their rights and the range of support their employer must provide.

The Equality Act 2010

The Equality Act makes it unlawful for employers (and their staff) to discriminate against employees, workers and job applicants because of their disability. The Equality Act also imposes a duty on employers to make reasonable adjustments to overcome disadvantages suffered by disabled people.

The Equality Act defines disability as “a physical or mental impairment… which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

UK Courts have held that ‘substantial’ means anything more that trivial. Therefore severe limb injuries, amputations, chronic pain and nerve damage conditions would all meet this definition of disability.

Whilst a physical disability is often more obvious to an employer, it is widely recognised that severe limb injuries can have a considerable psychological impact on people. Related mental health conditions, such as PTSD, depression and anxiety, are often harder to spot but can also constitute a disability under the Equality Act.

Reasonable Adjustments

The duty on employers to make reasonable adjustments is a cornerstone of the Equality Act. It requires employers to take positive steps to ensure that disabled people can access and progress in employment.

This goes beyond simply ‘levelling the playing field’ but means providing support that non-disabled workers and applicants are not entitled to, examples of which can be seen below. Failing to make reasonable adjustments is an unlawful act of discrimination.

Employers are required to take reasonable steps in three situations to:

1. Avoid the substantial disadvantage where a provision, criterion or practice at work puts a disabled person at a substantial disadvantage compared to a non-disabled person.

Example: An employer has a policy that car parking spaces are only offered to senior managers. It would be a reasonable adjustment to allow a worker with restricted movement caused by a severe limb injury to be given a designated car parking space.
2. Remove or alter a physical feature or provide a reasonable means of avoiding such a feature where it puts a disabled person at a substantial disadvantage …

Example: A heavy internal door cannot be opened by an employee in a wheelchair. They have to ask for help, which is not always available, causing long waits by the door. It could be a reasonable adjustment to install automatic door openers.
3. Provide an auxiliary aid where, without this it would put a disabled person at a substantial disadvantage …

Example: An employee has an amputation and finds it difficult to use a standard keyboard. It could be a reasonable adjustment for the employer to provide voice recognition software, a specialist keyboard, typing tutorial etc.

There is a huge range of physical adjustments that employers can make for people with severe limb injuries, including making the site and facilities more accessible, modifying work areas, and providing equipment for a wide range of work-related activities.

In addition, adjustments can, and should, be made to policies and practice. This includes targets, absence and performance monitoring, breaks, hours, career development, and working practices such as working from home.

What is ‘reasonable’ will depend on the size and resources of a company, but the starting point is that an employer is obliged to remove disadvantages for disabled people.

Additional help may be available under the Access to Work scheme and employees should contact the scheme as early as possible because the level of funding available changes after 6 weeks of employment.

Discrimination

The Equality Act 2010 makes discrimination against disabled employees or job-applicants unlawful, including:

Direct Discrimination

Employers cannot treat disabled people less favourably than they treat a non-disabled person. This can be difficult to prove because it requires evidence of the employer’s motive. However, there is no defence to direct discrimination.
Discrimination arising from disability

Employers cannot treat disabled staff unfavourably because of something arising in consequence of their disability (such as requiring extra time off for medical appointments).

This is a much more common claim to bring because employees do not have to compare themselves to non-disabled employees. Employers have a defence that their actions were ‘proportionate’ (reasonable) in achieving a ‘legitimate aim’ (such as the management of staff attendance).
Indirect Discrimination

Employers are not allowed to have working practices, policies or rules which put a disabled person at a disadvantage to a non-disabled person.
Harassment & Victimisation

Harassing disabled employees in the workplace is unlawful, as is retaliating against anyone who reports such harassment.

What should you do, if you have been discriminated against?

Informal resolution:

Employees or job-applicants should firstly speak out. If a company does not know or understand about a disability, they may be unaware of what steps need to be taken to support you. They may also not understand the effect that a policy or physical feature has on a disabled employee. All employees are protected from being victimised for doing anything in connection with the Equality Act 2010 (including speaking out!).

We see many occasions where an employer or colleagues need to be educated about the effects of a disability, which often leads to a positive change in behaviour.

Grievance:

If you cannot resolve an issue informally, an employee can raise a formal grievance which must be fairly investigated and acted on by your employer, in accordance with the ACAS code.

Settlement/Tribunal:

If you can’t resolve an issue informally or through a grievance you should seek legal advice about your options, which could include a financial settlement or issuing Tribunal proceedings. Compensation for injury to feelings in discrimination claims can be up to £49,300 and compensation for lost earnings is uncapped.

There are very strict time limits in employment law which require employees to make a referral to the ACAS early conciliation service within 3 months of the discriminatory conduct and then to issue a claim within a month of conciliation (or more in certain circumstances). We therefore recommend employees seek legal advice as early as possible.

Other support may be available from the Equality and Human Rights Commission, your local Citizens Advice or Law Centre.