Disability Discrimination – The key terms
Disability Discrimination is a confusing area of employment law for employers. It can also prove to be a costly area if employers ignore it or don’t understand it. What health conditions are disabilities? What are reasonable adjustments? These are just a couple of the questions employers may have. Below, we set out an explanation of some of the key terms in this area to help employers get a better grasp of disability discrimination.
For the purposes of discrimination, a disability is a physical or mental impairment that has lasted for 12 months or is likely to last for 12 months, that has a substantial adverse impact on someone’s ability to carry out normal day to day activities
This is where an employer treats an employee less favourably than they would someone without a disability and the reason for the less favourable treatment is because of their disability. For example, if during an interview, a candidate explained that they had Chronic Fatigue Syndrome, and the employer decided not to give that candidate the role because of this disability, that would amount to direct discrimination.
If an employer has a policy or a way of working that they apply to both disabled and non-disabled employees which puts (or would put) disabled employees at a specific disadvantage when compared to non-disabled employees, then this may be indirect discrimination if the employer cannot show that they have a legitimate aim and that the policy or requirement is a proportionate means to achieving that. An example may be that if employees have 10 days of sickness absence, then the employer’s absence management process commences. This may put employees with a disability at a disadvantage as they may be more prone to sickness absence. From the employer’s point of view, they may try and defend the policy on the basis that they need staff in work so that they can provide the service they offer (the legitimate aim) and that having an absence management process that triggers after 10 days of sickness absence, is a proportionate way of achieving that legitimate aim.
Discrimination arising from disability
This occurs when an employee with a disability is treated unfavourably because of something arising as a consequence of their disability. For example, an employee has a disability that requires them to take additional rest breaks. The need to take additional rest breaks is ‘a consequence of their disability’. If an employer was to discipline the employee because they were not meeting a production target, then this might amount to discrimination arising from disability, as the disciplinary action would be seen as unfavourable treatment and it is because of the need to take additional rest breaks.
Where there is a policy/process or a physical feature of a job or workplace that puts an employee with a disability at a substantial disadvantage compared to someone without a disability, the employer is required to take reasonable steps to remove the disadvantage. An example might be increasing the number of absences needed to trigger the absence management process for a disabled employee or providing the right type of telephone for an employee with a hearing aid. If there are reasonable adjustments that can be made but they aren’t, then this is known as a ‘failure to make reasonable adjustments’.
Harassment is where an employee is subjected to unwanted conduct relating to their disability that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Examples of harassment would be someone making fun of/mimicking a colleague with a speech impairment, or an employee making negative comments about disabled employees.
If an employee makes a complaint or makes a claim of discrimination and is then subjected to a detriment as a result of the complaint/claim, then this would be victimisation. For example, an employee raises a grievance that their manager has made derogatory comments about their disability. In response to the grievance, the manager marks the employee as performing below expectation in their performance review. This would be victimisation.
Would you know what to do if a disability discrimination claim was made against you?