How to Identify Disability Discrimination at Work

Disability is regarded as a protected characteristic under the Equality Act 2010.

As an employer, you are responsible for treating disabled employees fairly. You must not discriminate against them because of their health.

If you discriminate against disabled employees in unreasonable ways, you could face tribunal hearings, compensation penalties, and reputational damages.

In this guide, we'll discuss what disability discrimination is, different types of it, and how to deal with it in your business.

What is disability discrimination?

Disability discrimination is the unfair treatment of a person, or a disadvantage put upon them, due to their disability.

In the Equality Act 2010, a disability is a physical or mental impairment that has a substantial and long-term effect on how people do daily tasks.

Why should you deal with disability discrimination at work?

Disability discrimination complaints in the workplace usually don't include intentional unfair treatment. However, this provides no defence in the case of a discrimination claim before a tribunal.

Employers should have clear rules and processes to help avoid discrimination. This should include guidelines on how to handle requests for making reasonable adjustments.

Companies should also have procedures in place to handle employee complaints about workplace discrimination. This should apply to both informal and formal grievances.

Can you ask an employee about their disability?

The Equality Act states that recruiters cannot ask job applicants about their health or disability until they've been given a job.

The only exception is when the health information is necessary for the application process or is required for employment.

For example, a job candidate fills out an application form that asks if they are on medication.

Unless there is a strong need for the employer to know this information, the question shouldn't be asked.

Different types of disability discrimination

The following are the six types of disability discrimination:

• Direct.
• Indirect.
• Failure to make reasonable adjustments.
• Discrimination arising from disability.
• Harassment.
• Victimisation.

We go into further detail about each of them below:

Direct discrimination

Direct disability discrimination in the workplace indicates a situation in which a person receives less favourable treatment. Getting treated in this way can relate to having a disability.

Poor treatment may lead to a decision not to hire, a lack of access to training, and even dismissal.

This type of discrimination comes in three different categories:

• Standard direct discrimination: This happens when a person is directly discriminated against because of their disability. For example, when a highly skilled worker loses a promotion to a co-worker with lower skills just because of being disabled.
• Discrimination by perception: This happens when an employee is directly discriminated against because of a disability that someone believes they might have. For example, a job candidate may be rejected because the employer thinks the individual has a disability.
• Direct discrimination by association: This is when an employee is discriminated against because of their association with a disabled person. For example, dismissing a single father because he cares for his disabled child who has cerebral palsy.

Indirect discrimination

Indirect disability discrimination happens when employers develop a policy or special rules that apply to all employees but put disabled people at a substantial disadvantage.

To confirm indirect discrimination, the policy must be proven to disadvantage the victim for their disability, as well as all other people with the same disability.

If an employer demonstrates that their policy or usual practice is ‘a proportionate means of achieving a legitimate aim’, indirect discrimination may not apply. This is known as objective justification.

This should be based on reliable information and prove that there are no less discriminatory alternatives available for the company's operations.

Failure to make reasonable adjustments

This is a common kind of disability discrimination.

Reasonable adjustments are changes made to a policy or physical environment which reduces or eliminates consequences on an employee's disability.

Employers are required by law to make reasonable adjustments for mentally or physically disabled employees when possible. Such adjustments might include:

• Using an ergonomic keyboard.
• Assistive computer software.
• A desk chair with extra back support.

In some cases, a requested adjustment may be unreasonable, like building a lift. Here, the company can legitimately refuse to comply with the request.

Discrimination arising from disability

This type of disability discrimination refers to situations in which a person gets poor or unfavourable treatment because of something related to their disability.

Harassment

Any unpleasant behaviour at work that is related to an employee's disability is considered harassment.

This includes behaviour that is upsetting, intimidating, aggressive, or otherwise offensive in any manner to the employee. Harassment can be written, verbal, or physical.

Anyone who witnesses harassment in the workplace is eligible to file a harassment claim.

Victimisation

Victimisation is defined as a situation in which an employee suffers mental, emotional, or physical harm, loss, or damage as a result of:

• Making a discrimination complaint.
• Supporting someone else's discrimination complaint.
• Raising a grievance related to discrimination or equality.

An individual can also be victimised if it is suspected that they have done one of these acts or that they intend to do so.

How to prevent disability discrimination in the workplace

As an employer, you should take measures to avoid disability discrimination in your business. To achieve this, you should aim to:

• Remove or reduce the risks of anything that might cause this kind of discrimination.
• Provide extra support to anyone affected by it, such as a wheelchair user.
• Remind everyone who works with you that disability discrimination is illegal under the Equality Act 2010 and that you won't tolerate it.
• Train your employees to recognise and report this type of discrimination, and support disabled people.
• Ensure that all of your policies are consistent in their zero tolerance for disability discrimination. You must not exclude them from any of the services provided within your company.
• Realise the advantages of a diverse and inclusive business that doesn't exclude disabled people.

Try to implement the following steps to ensure that disabled people are not treated unfairly at work:

Employ and help disabled people

When you have a diversified workforce, unlawful discrimination based on disabilities is less likely to happen. Employing and helping disabled people allows you to:

• Recruit from the broadest pool of talent available for roles at all levels.
• Develop a workforce that is more representative of your customers and the larger community.
• Acquire and retain employees who, as a result of learning to live with a disability, have more resilience and problem-solving skills.
• Introduce new skills to the company.
• Boost employee morale by treating everyone evenly.
• Demonstrate your commitment to equality to customers, clients, and local authorities.

Promote inclusive behaviour

There are several approaches to encouraging inclusive behaviour towards disabled people that are treated differently. You could:

• Take positive steps to improve workplace diversity.
• If disabled staff members feel comfortable doing so, offer ways for them to talk about their experiences.
• Provide remote working options, such as working from home.
• Provide information on disability harassment to employees, job applicants, and customers in easy language.

Discuss language and disability

You and your employees should be mindful of the proper use of language when talking about disabilities.

This applies both to direct interactions with disabled people and other workplace communications.

Make it quite clear in your company that ableist language won't be tolerated. This refers to language that is offensive, has harassing orientation, or is insulting to individuals with disabilities.

Provide training to your employees

Training should be integrated into your company's overall strategy. This includes:

• Training your staff on identifying and understanding disability discrimination.
• Training managers how to handle discrimination claims including disabilities.
• Training appropriate staff to help those with mental health conditions. 
• Providing all employees ongoing training on diversity and equality.

It's important to note that training by itself is unlikely to remove discrimination or unconscious bias. You might need to add extracurricular activities or make reasonable adjustments to your workplace.

Monitor and measure change

As an employer, you should regularly evaluate whether policies and processes for addressing disability complaints are effective. There may be a need to update your policy.

For example, you can:

• Check the diversity of your workforce.
• Conduct anonymous staff surveys.
• Check to see if disabled employees are properly represented and paid
• If you have a trade union, speak with them.

Get advice on disability discrimination with Peninsula

The law protects people against disability discrimination in the workplace. This includes people with physical, mental, and learning disabilities. Employers must treat these people fairly and make a reasonable adjustment if necessary.

Employers who discriminate against disabled employees or refuse to pay them the appropriate salary can face an employment tribunal.

Peninsula offers 24/7 HR advice, which is available 365 days a year. We can help you to avoid all types of discrimination in your business, including disability and gender reassignment.

Want to find out more? Contact us on 0800 028 2420 and book a free consultation with an HR consultant today.