According to analysis of data from Acas, the number of early conciliation notifications related to disability discrimination rose 41% between 2023–24 and 2024–25.
There are several claims under discrimination and prohibited conduct in the Equality Act that can be brought in relation to some or all of the protected characteristics. These include direct and indirect discrimination, as well as harassment and victimisation.
However, the protected characteristic of disability differs from the others because it carries a set of unique protections that do not apply to any other protected characteristic. These are discrimination arising from a disability and the duty to make reasonable adjustments. Employers must also comply with rules on asking health related questions before a job offer is made which is designed to protect disabled employees.
Discrimination Arising from Disability
Under the Equality Act, it is unlawful to treat a disabled person unfavourably because of something arising from, or in consequence of, their disability. This could be, for example, disciplining an employee for breaching absence triggers where the absence is because of a disability. That is, unless that treatment can be shown to be a proportionate means of achieving a legitimate aim.
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Duty to Make Reasonable Adjustments
Employers are under a duty to make reasonable adjustments under the Equality Act where a provision, criterion or practice, a physical feature of the work premises, or a lack of provision of an auxiliary aid or service, put a disabled person at a substantial disadvantage in comparison with people who are not disabled. The Act states that failure to comply with this requirement is discrimination.
Whilst it is not possible to justify failing to make a reasonable adjustment, an employer will only be in breach of this duty where the adjustment was reasonable. This test of reasonableness is applied by the courts.
Pre-employment health questions
Under the Equality Act, it is unlawful for a prospective employer to ask about a job applicant’s health until that person has been either offered a job (on a conditional or unconditional basis) or been included in a pool of successful candidates to be offered a job when a suitable position arises. Such questions are only permitted in a narrow set of circumstances, for example, identifying required reasonable adjustments for pre-employment assessments, the recruitment process and the role being recruited for itself. Employers who do take such approach risk enforcement action being taken against them by the Equality and Human Rights Commission.
The increase in early conciliation notifications relating to disability discrimination is a clear reminder for employers of the importance of compliance with the duties under the Equality Act, and of the need to ensure the workplaces that they maintain are discrimination free.
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