What is disability?
Disability is defined in different ways for different purposes. In the UK and for employment purposes, the definition is contained in the Equality Act 2010: a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
‘Long-term’ means that the condition must last, or be likely to last, for more than 12 months, or is likely to last for the rest of the life of the person affected.
Individuals with cancer, multiple sclerosis or HIV/AIDS are covered from the date of diagnosis regardless of the impact that the illness is having on their life at the time of diagnosis. Other examples of conditions covered include: chronic fatigue syndrome, schizophrenia, rheumatoid arthritis, diabetes, epilepsy, dyslexia, severe nut allergies, eczema, depression and some cases of obesity. These are simply examples and many more categories may be included.
To be covered under the Act, a mental illness doesn’t have to be clinically well recognised. The emphasis is on the impact of the symptoms rather than the label that’s been attached to them.
The legal position
In the UK, discrimination on the grounds of disability, originally introduced by the Disability Discrimination Act 1995, is now contained within the Equality Act 2010.
Types of discrimination
Within the Equality Act 2010 there are a number of different types of discrimination. These apply to the protected characteristics, which include disability.
This applies to all protected characteristics. It’s treating someone less favourably than another person because of a protected characteristic that they have. For example, it’s deciding not to recruit an individual because they are disabled.
Indirect discrimination occurs when:
- a provision, criterion or practice is applied to all, and:
- it puts a group with a protected characteristic at a disadvantage when compared with another group
- an individual is put at a disadvantage
- the employer cannot show it to be a proportionate means of achieving a legitimate aim.
For example, indirect disability discrimination could occur if all employees are required to arrive at work at 08:00 and someone who is disabled has difficulty getting a bus or train in the rush hour in order to arrive on time. That employee’s working hours could be changed so they could start and finish later. Enforcing the specific hours might indirectly discriminate against a disabled person unless the hours can be justified.
Discrimination arising from disability
It’s discriminatory to treat someone less favourably because of something connected with their disability. For example, dismissing someone for making spelling mistakes owing to their dyslexia. It is justifiable only if the employer can show that it is a proportionate means of achieving a legitimate aim.
This is treating someone less favourably because they associate with an individual who has a protected characteristic. For example, treating someone less favourably because their child has a disability and they sometimes have to leave work to deal with a problem.
This is treating someone less favourably because it’s perceived that they have a protected characteristic, whether they do or not. For example, refusing to appoint someone because it is thought that they are disabled when they’re not.
Victimisation occurs when someone is treated less favourably because they’ve made or supported a complaint, or raised a grievance under the Equality Act 2010. It also applies if it’s thought that they have made a complaint. A comparator isn’t required for a claim of victimisation. Post-employment victimisation can occur – for example refusing to give a reference to someone who had made a complaint under the Equality Act 2010 – although the Act has some grey areas concerning post-employment victimisation.
Harassment is ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’.
There’s no longer any legislation making employers liable for harassment that comes from a third party (for example, a customer), as this express protection was removed with effect from 1 October 2013. However an employer can still be liable as a result of numerous other legal duties, for example breach of contract, direct discrimination and under the Protection from Harassment Act 1997. This, and good practice, mean that employers should continue to take steps to protect employees from all forms of harassment.
Where there is an Occupational Requirement to employ a person with a particular protected characteristic, certain very limited exceptions from the law are permitted covering selection, promotion and training. The employer must be able to show that there’s a genuine need, taking account of the type of work.
Case law in the area of disability discrimination continues to develop.
Employers can take positive action, for example to address under-representation or other forms of disadvantage within the workforce. The provisions are complex and must be handled carefully. Different provisions apply concerning positive action relating to recruitment and promotion. For more information, visit the Equality and Human Rights Commission
Good employment practices
Employers should screen policies and working practices to remove unfair discrimination and bias as part of a coherent diversity strategy. This is important to create an open workplace culture.
Making reasonable adjustments
A key part of the Equality Act 2010 requires employers to make reasonable adjustments to accommodate the needs of a disabled individual. The employer is required to think broadly of adjustments that could be made, and give the matter serious thought. The employer can discuss possible adjustments with the disabled employee but cannot rely on the employee alone to think of adjustments.
The requirement is to make ‘reasonable adjustments’. ‘Reasonable’ is considered with the size and resources of the organisation in mind.
Reasonable adjustments might include:
- making adjustments during the interview and selection process
- making physical adjustments to the workplace
- allocating some duties to another employee
- moving the disabled employee to a different but suitable job
- altering the hours of work
- moving the disabled employee to another place of work
- allowing time off during working hours for treatment or rehabilitation
- arranging training for the employee
- acquiring or modifying equipment
- altering instructions or reference materials
- altering procedures for testing or assessment
- providing a reader or an interpreter
- providing supervision.
Pre-employment medical questionnaires
The Equality Act 2010 made it unlawful to issue pre-employment medical questionnaires. Before offering employment, health-related questions can only be asked to:
- help decide whether there’s a need to make reasonable adjustments to the selection process
- help decide whether an applicant can carry out an essential part of the job
- monitor diversity amongst applicants
- take positive action to help disabled people
- ensure that an individual has a disability if there’s a genuine requirement to have a disability (for example, a mental health counsellor being required to have experience of mental health issues).
Challenging stereotypical thinking
Stereotypical thinking leads to bad decision-making. Employers should see the person, not the disability, and think positively about solutions that might work for the person and the business.
- Disability shouldn’t be confused with all long-term illness, as disability can affect health in different ways.
- Disability shouldn’t be seen in a narrow way. For example, a very small percentage of people with disabilities are wheelchair users.
- Not all disabilities are obvious. More people acquire disabilities than are born with them.
- Problems can arise for a disabled person related to the physical design of the environment they’re in, such as offices, shops, public places and transport. They can also relate to operational customs and practices at work such as hours of work or time-keeping.
- Corporate image and reputation can be seriously damaged or enhanced by negative or positive experiences relating to disability.
- Mental health problems such as depression and anxiety affect a significant proportion of the population and stress-related illness has overtaken muscular/skeletal problems as the top cause of absence.
- People with disabilities continue to find it significantly more difficult to get a job than able-bodied people, because employers fail to approach the management of disability positively.
- It’s possible to make simple changes to jobs and the way they’re carried out in order to successfully employ someone with a physical or mental impairment or learning difficulty without serious cost or even at no cost at all. Funding support to help a disabled person with employment is available through Access to Work (see Useful contacts).
- Good practice shows that there are easy ways to recruit and retain talented people with disabilities, which can often bring general benefits in other ways.
- Not everyone with a disability under the legal definition would see themselves as disabled, and many fear disclosure would result in unfair treatment. Such apprehension is bad for everyone. Organisations need to focus on building trust through honest and open conversations which can build employee engagement and good employee and customer relations.
Recommendations for positive progress
To be successful at managing disability, organisations need to train all employees to behave responsibly and treat people with respect and dignity. Line managers are pivotal; provide them with good practice information and basic legal obligations and crucially, give them guidance about conducting open and respectful discussions to explore possible practical solutions that would meet both the needs of the business and the disabled person.
An action plan
- Audit existing policies and practices.
- Draw up a business case for change and get management support.
- Develop a good practice policy, check it incorporates legal duties and promote it to everyone who works for the organisation.
- Clarify line manager and employee responsibilities; offer employees training to build their understanding and confidence to act appropriately, including contract specifications in, for example, recruitment and procurement.
- Design an action plan to implement the policy, monitor and review outcomes and effectiveness to make approaches more robust and share the learning across the organisation.
- Follow good recruitment practice such as the Recruitment protocol1 launched by the Employers’ Forum on Keep up to date with good practice and legal developments.
- Network with other employers interested in progress in diversity to share learning and ideas and keep up to date with competitors.
- Listen to disabled employees and customers to make sure you understand their needs and preferences, and refresh your organisation’s policies and practices to reflect them and keep them relevant and up to date.