Introducing the Equality Act on 1st October 2010 brought together several pieces of existing discrimination legislation into one place but, at the same time, extended protection in far-reaching ways. It is the law that you must look to when considering discrimination against disability at work.
It makes it unlawful to discriminate against disabled people and requires the employer to make reasonable adjustments for disabled staff to enable them to carry out their job.
If the law finds you to have discriminated against someone with a disability, you face an unlimited fine from employment tribunals. There is also no minimum service for those claiming, making it far easier to face these cases.
It is also a major drain on employee morale and damages the reputation of your business, leading to fewer talented employees wanting to work for you and a reduction in productivity.
Let’s look at what disability discrimination is and how to avoid it.
What is disability discrimination at work?
Discrimination is a complex and nuanced topic. It is not as simple as simply denying opportunities to those with protected characteristics.
Therefore, the law sets out legislation for both direct and indirect instances of discrimination.
We’ll define both below.
Direct disability discrimination occurs where a person is treated, or would be treated, less favourably ‘because of’ disability compared with others in like-for-like circumstances.
We can never justify direct discrimination, no matter how well-intentioned the motive. So, you can never try to show that the act was a proportionate means of achieving a legitimate aim.
Indirect discrimination occurs when a provision, criterion or practise (PCP) is applied universally and that PCP:
- Puts, or would put, a group of people who have the same disability as the disabled employee making the complaint at a particular disadvantage compared to people who do not have that disability, where there is no material difference in each case
- Puts, or would put, the disabled employee at a disadvantage
- Cannot be shown as a proportionate means of achieving a legitimate aim.
To show that a PCP is a proportionate means of achieving a legitimate aim, the aim itself must be legitimate and must correspond to a real, objective business need which, if not met, would mean the business would suffer a disadvantage.
To be proportionate, the PCP must:
- Actually, contribute to pursuing the legitimate aim
- Be within the limits of what is absolutely necessary to achieve the business aim and there is no other less discriminatory way to achieve it
- Deliver benefits to the business, which far outweigh the discriminatory effect on the individual.
Disability discrimination at work examples
It's difficult to understand how discrimination works, even when the legislation lays out the rules. Therefore, seeing examples is great for understanding discrimination further.
An example of a direct disability discrimination act at work is:
Although a disabled applicant with a severe speech impairment is the best candidate for a job, his employer does not offer him the position purely because he is disabled.
This is because the employer fears he would ‘have the mickey taken out of him’ by members of the workforce who teased a previous employee who had a bad stutter.
This would be direct discrimination if the disabled person can show that a non-disabled applicant, actual or hypothetical, and who had or would have had the same attributes as him, was treated more favourably in an identical recruitment process.
An example of indirect disability discrimination is:
They put a policy in place which requires individuals to be of a certain height and weight to undertake a certain job.
If the employer cannot objectively justify this practice, it could amount to indirect discrimination.
Employers have a duty to make ‘reasonable adjustments’ to remove potential barriers that would put a disabled person at a disadvantage in the workplace.
If a person is not visibly disabled, it will not be immediately apparent that they may trigger your duty to consider reasonable adjustments.
If you do not know, or they could not reasonably expect you to have known, that an employee has a disability, then the law does not expect you to make adjustments.
What the employer should be wary of, in these circumstances, is where an employee’s performance falters. You should investigate such issues without delay to determine whether the reason for the change in performance is a disability.
If it is, you must consider reasonable adjustments. If you do not make these investigations and the decline is because of a disability, they may consider any ensuing disciplinary procedure as less favourable treatment.
Examples of reasonable adjustments
This can mean an alteration to a physical feature in the workplace, for example, getting a specialised mouse for an employee who has dexterity problems.
This could also encompass altering a disabled employee’s starting times if their disability means that they have problems travelling in rush hour traffic.
Compensation for disability discrimination at work
Successful claims for disability discrimination at an employment tribunal can result in unlimited compensation pay-outs, plus an additional amount for injury to feelings compensation.
There is also no requirement for purely the employee themselves who suffers from a disability to make a claim of disability discrimination.
The concept of associative discrimination is covered in the Equality Act and makes it possible for an employee to claim that an employer is discriminating against them because of their association with someone else (wife, child, parent etc) who does not work for you but who does have a disability.
Expert support on discrimination with Peninsula
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