Disability Discrimination at Work

Disability is one of 9 ‘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’s protected by discrimination law will consider themselves to be disabled
  • Some people are ‘deemed’ to be disabled e.g. those who are blind, sight impaired and partially sighted persons or those 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 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’).

Discrimination law covers

  • Direct or indirect discrimination – when someone is put at a disadvantage and treated less favourably 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

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

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.

Coronavirus (COVID-19) and disability discrimination

Disabled people and many people with health conditions have been disproportionately affected by the COVID-19 pandemic.

During the pandemic, employees and workers have the same rights as usual to not be discriminated against at work because of disability.

By law, employers must consider this when they make any decisions related to the pandemic, for example with:

  • Workplace safety
  • Returning to work
  • Ways of working, for example flexible working or hybrid working
  • Supporting staff who are at a high risk from COVID-19
  • Redundancy

Next steps

Take a look at the article below on ‘Disabled PAs and Reasonable Adjustments’ to guide you in more detail.

Part of
Last Updated
13 July 2022
First Published
01 April 2022
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Disclaimer

Please note that the information contained in this Handbook is provided for guidance purposes only. Every reasonable effort is made to make the information accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by Self Directed Support Scotland or any other contributing party.

The information does not, and is not intended to, amount to legal advice. You are strongly advised to obtain specific, personal and professional advice from a lawyer about employment law matters, or an accountant/ tax specialist about taxation matters, and from HMRC and your insurers. You should not rely solely on the information in this Handbook. Support organisations listed in this Handbook can help you find appropriate sources of advice.