September 4, 2018

The Equality Act 2010 defines a disability a person who has a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

The Act protects those who are currently disabled, and those who were previously disabled, but are not at present.

types of disability discrimination

  • Direct discrimination: this includes discriminating against an employee because of their disability or perceived disability, or discriminating against the disability of someone they are associated with.
  • Indirect discrimination: When certain policies or criterion that although apply to the entire workforce, substantially disadvantages those who are disabled.
  • Harassment: Unwanted conduct relating to the employee’s disability, which violates their dignity and creates a hostile working environment.
  • Victimisation: Where an employee is subjected to detrimental treatment due to the fact they have made a grievance or support a grievance about disability discrimination or harassment, this is victimisation.

two additional types of disability discrimination

  • Discrimination arising from disability: when a person is treated unfavourably, not due to the disability itself, but something linked to their disability. An employee does not need to show that they were treated less favourably, just that they have suffered a detriment arising from their discrimination. Discrimination arising from disability may include:
    • Absence due to illness
    • Problems with movement
    • Difficulties with reading, writing, talking, listening or understanding
  • Failure to make reasonable adjustments: this is one of the most common types of disability discrimination. A reasonable adjustment is changing the work environment to minimise the employee’s impairment in the workplace, so they can undertake their normal work duties without being disadvantaged.

Can you treat disabled employees more favourably?

You can lawfully treat disabled employees more favourably by making reasonable adjustments, but non-disabled employees cannot claim discrimination on the grounds they have had less favourable treatment as reasonable adjustments have been made for a disabled colleague.

As an employer, you must consider making reasonable adjustments if:

  • You become aware of someone’s disability;
  • You were reasonably expected to know they have a disability;
  • An employee asks for adjustments to be made;
  • The disabled employee is struggling with their job;
  • The employees’ sickness record or delay in returning to work relates to their disability.

There are three main considerations when making reasonable adjustments:

  • Does it need to alter how things are done?
  • Does the workplace need to change physically?
  • Does extra equipment need to be provided or someone to assist the employee in some way?

Recruitment

When putting out a job advert for an open position, you must avoid using any words or phrasing that would discourage a disabled person from applying.

It is best practice to ask during the recruitment process if an applicant will require any reasonable adjustments, without asking too many personal or intrusive questions. You cannot reject an applicant solely based on the fact that reasonable adjustments will be needed.

Promotions and Training

Employees should not be denied promotions or the opportunity to progress based on their disability. Likewise, withholding training from an employee because of their disability would also be discriminatory. If necessary, reasonable adjustments should be made to allow a disabled employee to attend a training session.

Dismissal and Redundancy

You should make sure you have taken all helpful steps and made all necessary reasonable adjustments before dismissing a disabled employee, otherwise, the dismissal may not be lawful. Dismissing a disabled employee may be lawful if it can be proven that:

  • Reasonable adjustments have been made, and there are no more adjustments that can be reasonably made;
  • There are no other job roles or lighter duties you could offer as a reasonable adjustment;
  • The dismissal is proportionate means of achieving a legitimate aim;
  • You have followed a fair capability procedure, with evidence that the capability issue has been considered and debated.

Regarding redundancy, employers should make reasonable adjustments so that disabled employees are not at a disadvantage during the redundancy process, specifically focusing on:

  • The criteria used to select employees for redundancy. Employers should pay careful attention to:
    • Absence
    • Working hours
    • Job performance
    • Skills, experience and qualifications.
  • How the redundancy process is managed. Employers should focus on communication, and whether any alternative job roles are available.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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