Disability Discrimination at Work

Disability is one of nine ‘protected characteristics’ covered by discrimination law (Equality Act 2010). The law protects people against discrimination, harassment and victimisation at work.

Employers must do all they reasonably can to protect people from discrimination and take steps to prevent disability discrimination at work. This includes recognising the benefits of having an inclusive and diverse workforce that does not exclude disabled people.

It’s important to understand that:

Most disabled people were not born with their condition
Anyone could become disabled at any stage of their working life
Some conditions are not obvious to others – often called non-visible, invisible or hidden disabilities (a disability can be a physical or mental impairment)
Not everyone who is protected by discrimination law will consider themselves to be disabled
Some people are ‘deemed’ to be disabled, for example those who are blind, sight impaired and partially sighted persons, or people with cancer, HIV and multiple sclerosis.

Discrimination can also be because of more than one protected characteristic – for example disability as well as race, religion or belief, sex, or sexual orientation.

Who is responsible

Anyone who discriminates against someone at work is responsible for their own actions.

Employers can be held responsible too – this is called ‘vicarious liability’.

Employers also have a responsibility – a ‘duty of care’ – to look after the wellbeing of their employees. If an employer does not do this, in some cases it could lead to a serious breach of someone’s employment contract. If an employee feels they have no choice but to resign because of it, the employer could face a claim of constructive dismissal.

All employers must take steps to prevent disability discrimination happening in the first place.

By law, employers must also make ‘reasonable adjustments’ for disabled employees and job applicants. If they do not do this, it could be discriminatory (the legal term is ‘failure to make reasonable adjustments’). Examples of this discrimination are something that disadvantages a disabled person which could reasonably be changed, but is not – for example a physical barrier or a policy.

Discrimination law covers

Direct or indirect discrimination – when someone is treated less favourably or placed at a substantial disadvantage because of a protected characteristic (for example, disability) or a policy or practice is applied by the Employer to everyone, but it puts a person with a protected characteristic at a particular disadvantage
Harassment – when bullying or unwanted behaviour is related to a protected characteristic
Victimisation – when someone is treated differently or less favourably because they made or supported a complaint to do with a protected characteristic, or someone thinks they did or might do.
Discrimination Arising From Disabity – where a disabled person is treated unfavourably for something that has arisen as a consequence of their disability
Failure to make Reasonable Adjustments – where changes to remove a subsantial disadvantage experienced by a disabled person are not made when it would have been reasonable to do so.

Who is protected by disability discrimination?

At work, the law protects the following people against discrimination:

Employees and workers
Contractors and self-employed people hired to personally do the work
Job applicants

It’s against the law to discriminate against someone because:

They have a condition or impairment considered a disability by law
It’s perceived they have a disability even if that’s not true
They are associated with someone who’s disabled, for example a family member, friend or colleague
They have another association with disability, for example they volunteer for a disability charity.

Discrimination arising from disability can also happen when a disabled person has been treated unfavourably because of something that has arisen as a consequence of their disability.

Past disability

In most circumstances, the Equality Act 2010 also protects people who are no longer disabled but who were disabled in the past.

An example could include someone who is harassed at work because of a past mental health condition.

When an employer can make a decision based on disability

In some cases, it may not be against the law for an employer to make a decision based on someone’s disability. But the law in this area can be complex. It’s a good idea for employers to get legal advice first.