Under the Equality Act 2010, it is unlawful for an employer to discriminate against a worker because they have a disability.
There is a wide definition of the term ‘disability’ within the act and whether a person can be classed as having a disability will depend on the circumstances. Generally speaking, a person has a disability if s/he has a physical or mental impairment which has a substantial and long-term adverse effect on that person's ability to carry out normal day-to-day activities. Furthermore, some medical conditions automatically count as a disability for the purposes of the Act, for example HIV, cancer and multiple sclerosis.
Visit the Equality and Human Rights Commission website (for England, Scotland and Wales) or Equality Commission Northern Ireland for more information on disability discrimination. Each of these organisations has produced a Code of Practice relating to employment, which is useful to consider if you feel your employer may not be acting correctly.
The Equality Act 2010 introduced a new form of disability discrimination protection and that is protection against discrimination arising from disability. This involves unfavourable treatment because of something arising in consequence of disability, rather than the disability itself. For example, an employee may need regular rest breaks because of their condition, or require specialist reading materials. As with indirect discrimination, the employer may argue that the treatment was a proportionate way of achieving a legitimate aim, and therefore the action is justified.
This form of discrimination is closely related to the duty on employers to make reasonable adjustments (see below).
Apart from discrimination by association or perception, protection from discrimination because of disability only applies to disabled people.
Indirect disability discrimination and discrimination arising from disability only apply to disabled people.
An employer is only under a duty to make reasonable adjustments for a disabled worker or an actual or potential disabled job applicant.
The duty to make reasonable adjustments
If a disabled employee is placed at a substantial disadvantage in comparison with a non-disabled employee as a result of a provision, criterion or practice, physical feature or auxiliary aid, the employer has a legal duty to consider (and make) ‘reasonable adjustments’ for the disabled employee. The purpose of making adjustments should be to remove any barriers that may exist to eliminate the disadvantage and enable the employee to perform their duties whilst maintaining their health and safety in the workplace. For example, if a physical feature of the working environment that adversely impacts on disabled staff, the employer would have to take reasonable steps to remedy the problem (such as installing a wheelchair ramp). Likewise, if an employee requires assistive aids to help them undertake a certain task, the employer would have to take reasonable steps to provide those aids (such as providing computer screen magnification equipment). Please see our Health Ability Passport Guidance for more information.
What is ‘reasonable’ depends on the circumstances and is not defined in legislation. However, when making a decision the following factors could be considered:
- the effectiveness of the proposed adjustment
- the practicality of the step
- the financial and other costs incurred
- any disruption caused
- the extent of the organisation's financial and other resources.
If you feel your employer is not giving you enough support, consider speaking to your occupational health department and contact us.
Pre-employment health checks
The Equality Act 2010 places restrictions on the way in which prospective employers can use information about someone’s health or disability when considering them for a post. In general, prospective employers are prohibited from asking questions about someone’s health or disability prior to offering them a job. This includes questions about previous sickness absence. There are a small number of exceptions to this rule. The Government Equalities Office has detailed guidance on this area.
Guidance from the Equality and Human Rights Commission indicates that questions about sickness absence can be asked after a candidate has been offered the job (either conditionally or unconditionally) or has been placed in a pool of successful candidates. However, even then the purpose of these questions should only be to clarify that a person’s health or disability will not prevent them doing the job and enable the employer to consider whether there are any ‘reasonable adjustments’ that can be made.
If you feel you are being discriminated against, you should refer to your employer’s equality and diversity policy and speak to your line manager about your concerns. If you are unsatisfied with the response, contact us as you may wish to follow your employer’s grievance procedure with our support.