In the first part of this two-part feature on examples of disability discrimination in the workplace, we looked at the definition of a disability under the Equality Act 2010 (EqA) and who was protected under the legislation. You can read that article here. In this part, we focus on the different types of disability discrimination under the EqA and provide practical examples of what might be considered unlawful under the EqA.

Different Types of Disability Discrimination

There are four main types of discrimination which apply to all protected characteristics under the EqA (disability included):

• direct discrimination
• indirect discrimination
• harassment
• victimisation

In addition, there are additional two forms of discrimination that only apply to disabilities. These are:

• discrimination arising from disability
• failure to make reasonable adjustments

Where an individual can show that they have suffered discrimination under one of these areas, they may be able to bring a tribunal claim against the organisation. It is therefore important that employers understand what constitutes disability discrimination and what is needed to provide the required level of support to those with disabilities in the workplace.

Direct Discrimination

Direct disability discrimination occurs when an employee is treated less favourably than other staff in a similar situation due to their disability.

For a direct discrimination claim to succeed, the employee must have been subjected to some form of disadvantage, e.g. a dismissal, lack of access to training, or less favourable working conditions, and they must have been subjected to the treatment due to of their disability. Causation is extremely important and there must be a link between how they have been treated and the reason why they have been treated in that manner. Lastly, the employee would need to prove that someone who doesn’t possess their disability has or would have been treated more favourably than them – this may be an actual comparator or a hypothetical comparator.

Examples of Direct Discrimination

An employee is not offered a promotion because they are recovering from cancer. The job goes to a less qualified non-disabled person because the employer believes that there is a risk of the first employee needing to take time off work in future. This is likely to be direct discrimination.

An employer sees from a job application that the applicant has a stammer. They do not look into the applicant’s abilities but simply discard the application. This is also likely to be direct discrimination if the only reason the applicant didn’t get the job was because of the stammer.

Indirect Discrimination

Under S.19 of EqA, indirect disability discrimination occurs when an apparently neutral working practice, policy or rule applies to everyone in a group, but it puts a disabled person or disabled people at a disadvantage.

To prove indirect discrimination, the policy must be shown to disadvantage the employee due to their disability and must theoretically disadvantage all other people with the same disability.

Unlike direct disability discrimination, the employer can raise an ‘objective justification’ defence to excuse unlawful indirect discrimination. Indirect discrimination may not apply if an employer can show that their policy or practice was a proportionate means of achieving a legitimate aim, in other words, it is essential for the normal functioning of the organisation and there are no less discriminatory alternatives available.

Financial reasons alone are unlikely to justify discrimination but they may be factored in, especially where an employer can show that there are other good enough reasons for the treatment, such as the health, safety and welfare of the individual or others, the particular training requirements of the job and the need to run and provide an efficient service.

Example of Indirect Discrimination

An employer has a sickness policy that automatically warns and dismisses employees for reaching a set number of sickness absence days. This type of policy is likely to impact an employee with certain kinds of disability compared to other staff.

A rest break policy that requires everyone to have a lunch break at the same time, with no other breaks, might indirectly discriminate against an employee with type 1 diabetes, who needs snacks between meals to manage their condition.

Harassment

Harassment can take place when a disabled employee experiences bullying or inappropriate behaviour that targets their condition.

This unwanted behaviour must:

• violate the disabled employee’s dignity, whether this was the intention or not,
• created an hostile, degrading, intimidating, offensive or humiliating working environment for the person, again, whether this was someone’s intention or not.

Bullying, nicknames, mimicking a disabled person’s movements or mannerisms, inappropriate or intrusive questions and unwanted jokes may all be considered forms of disability harassment and to say it was only ‘banter’ is no defence.

It is also possible for any person who witnesses harassment in the workplace to make a harassment-related claim if it has created a hostile environment for them even if the conduct isn’t specifically targeted at them.

The law protects disabled workers from being harassed by anyone in the workplace, including supervisors, co-workers, and even clients and customers. A single incident might constitute harassment if it is sufficiently serious and a series of incidents is likely to amount to harassment, especially if the employee has given a clear indication that the behaviour is unwanted.

Employers should ensure that all reasonable steps are taken to prevent all forms of harassment, including third-party harassment, and if it does occur, take steps to communicate to the harasser that this is not acceptable and must stop.

Examples of Harassment Related to Disability 

An employee has an eating disorder, which his manager knows about. The manager makes offensive comments in the open-plan office about people with anorexia.

An employee with Tourette’s feels upset when colleagues regularly mimic her vocal tics. She mentioned this to the office manager but was told she was being too sensitive.

Both cases could potentially amount to harassment related to disability.

Victimisation

Victimisation occurs when an employee is treated badly because they have made a complaint of discrimination under the EqA. It can also occur when a worker is supporting someone who has made a complaint of discrimination.

Examples of Victimisation

An employer threatens to dismiss an employee unless they withdraw a complaint of disability discrimination

A non-disabled employee gives evidence during a disability discrimination claim at an employment tribunal and is subsequently ostracised by colleagues and managers as a result.

Both situations could potentially give rise to a victimisation claim under the EqA.

Failure to Make Reasonable Adjustments 

Under the EqA, employers have a legal responsibility to make reasonable adjustments for disabled staff members to remove or reduce a disadvantage related to someone’s disability wherever possible, and failure to do so could amount to disability discrimination. This duty applies from the recruitment process onwards.

‘Reasonable adjustments’ can be changes to policies, working practices or physical layouts, or providing extra equipment or support. Employers should be proactive in supporting any employee suffering from long-term physical or mental health problems, making any reasonable adjustments where at all possible.

Common examples include:

• Making alterations to an employee’s duties to avoid strenuous physical tasks for someone who is not able to perform heavy manual work
• Allowing flexibility or a remote working arrangement for an employee who is faced with serious fatigue, such as ME
• Providing mentoring sessions for those battling with anxiety and severe stress
• Providing suitable equipment to support a disabled worker in their role; for example, a amplified phone for those with impaired hearing
• Allowing more time for those with dyslexia when faced with written interview assignments
• Making sufficient adaptations and alterations to accommodate for wheelchair access, where possible
• Making provisions for additional breaks for someone diagnosed with diabetes, ensuring they get sufficient food and drink.

An employer is not required to do more than what is considered reasonable. For example, where a small business is asked by an employee who uses a wheelchair to install a lift so they could get to the upper floors of their workplace, the employer can reasonably turn down that request if the costs associated with this adjustment would mean they go out of business if they paid for the work.

What is considered reasonable adjustments will depend on the circumstances of each case. Relevant factors would be:

• the cost of an adjustment,
• the extent to which the adjustment was practicable
• the size of the employer’s company and what resources are available to it
• how effective the adjustment is likely to be.

Discrimination Arising From Disability

Section 15 of EqA protects people from being treated unfavourably because of something connected to their disability, rather than the disability itself, for example, the need for an assistance dog or time off work for medical appointments. This is unlawful unless the employer can show that the treatment of the employee is a proportionate means of achieving a legitimate aim.

Examples of things that might be connected to disability are

• the need for a higher number of days of absence
• the need for regular hospital appointments
• the need for specialist computer equipment
• speech and movement difficulties
• difficulties in using public transport
• the need for regular rest or toilet breaks

This form of discrimination cannot occur unless the employer knew or should have reasonably known that the employee was disabled. However, as long as it can be shown that the employer knew about the disability, it doesn’t matter whether it did or did not know that something (misconduct, poor performance, etc) was a consequence of it.

This was illustrated in the landmark case of City of York Council v Grosset, where the Court of Appeal held that the dismissal of a school teacher suffering from cystic fibrosis for a serious error of judgment (showing an 18-rated film to a class of 15/16-year-olds) was discriminatory. The teacher’s error of judgement was due to stress which largely arose from his condition and although the school knew of his disability, they did not know it was a cause of his showing the film. This case highlights the importance of employers looking into the matter more carefully before taking unfavourable disciplinary action against a disabled employee to consider whether the employee’s actions were directly related to their disability or condition.

Examples of Discrimination Arising From Disability 

• an employee not receiving a bonus due to their sickness absence relating to their disability
• an employee selected for redundancy due to spelling mistakes in their work arising from dyslexia
• lack of promotion because of an employee’s mobility issues caused by a disability

We Can Support Your Business

Our experienced employment team can advise you on your business’ approach to disability and assist you with implementing relevant policies to avoid all types of disability discrimination in the workplace. For further information please contact us via email.

Featured image: Unsplash Licence – Annie Spratt