Disability Discrimination - Employers

The Equality Act 2010 defines a disabled person as someone who has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.

Each element of the definition of disability needs to be considered.  It may not always be obvious that a person is disabled within the definition of the Equality Act 2010. Whether an illness falls within the definition depends on the impact and duration of the illness.  Some illnesses such as cancer, HIV and multiple sclerosis are automatically included from the point of the medical diagnosis, without any further need to refer to each limb of the definition.

A physical or mental “impairment” can include severe disfigurement, dyslexia, depression or complaints arising from conditions that are not considered a disability – such as lung cancer arising from an addiction to cigarettes.  The cause of the physical or mental impairment is not generally considered.  It is the effect that matters. The effect must be on “normal day-to-day” activities, and this has a wide remit, including such capacities as mobility, speech and coordination.  An effect is long-term if it has lasted or is likely to last for at least 12 months, or the lifetime of the individual concerned.

It is unlawful for you as an employer to directly discriminate against a disabled employee and any form of indirect discrimination is only permitted if it can be justified. This includes discrimination in the context of:

  • application forms;
  • interview arrangements (for example an employer should not ask in a interview whether a prospective employee has any medical conditions or if how many days sickness absence they have taken. Questions about a worker's disability are allowed after they have been offered the position);
  • job offers;
  • terms of employment;
  • promotion, transfer or training opportunities;
  • work-related benefits such as access to recreation or refreshment facilities;
  • dismissal or redundancy.

You also have a duty to make 'reasonable adjustments' for any disabled employees in order to make sure that they are not put at a substantial disadvantage in comparison to other able-bodied employees. For example, when appropriate, you should consider:

  • allocating some of their work to someone else;
  • transferring them to another post or another place of work;
  • making adjustments to the buildings where they work;
  • being flexible about their hours;
  • providing training or retraining if they cannot do their current job any longer;
  • providing modified equipment;
  • making instructions and manuals more accessible;
  • providing a reader or interpreter.

You should discuss any such arrangements with your employee, and you may also want to seek external advice from someone with expertise in providing work-related help for disabled people, such as an occupational health adviser. Your duty to make reasonable adjustments is not automatic.  It will depend on your size and resources, among other factors.

You cannot select an employee for redundancy because they are disabled or for any reason relating to their disability, and you must ensure that any disabled employees are included in the consultation process. You should also make reasonable adjustments to the selection criteria to make sure the criteria do not discriminate against disabled employees.

Your employee may decide to resign if they feel that their position has become untenable as a result of discrimination they are suffering at work, in which case they would have a claim for constructive dismissal as well as disability discrimination. Furthermore, if they are subjected by you to any detriments because of a complaint they have made (or intend to make) about the discrimination they have suffered, they may also have a claim for victimisation.

If you would like more detailed information about disability discrimination, Ashby Cohen can help you. We specialise in employment law cases, and our years of experience as employment lawyers make us uniquely qualified to assist you with any disability discrimination issues you may have. Please contact us for an initial free telephone consultation.

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