Recognising disability discrimination in the workplace

With poor treatment of disabled employees being increasingly recognised as an issue across many sectors in the UK, it is unsurprising that more workers are seeking justice following instances of discrimination.

However, this leaves many wondering how to recognise discrimination when it happens. How is it distinguished from a difficult working relationship with a colleague or a genuine lack of funds for reasonable adjustments?

Discrimination doesn’t necessarily have to be a conscious effort to exclude in order to qualify as unlawful treatment, which makes it additionally hard to define for employees experiencing it.

What are your rights?

Under the Equality Act 2010 (EqA 2010), all employees, workers, job applicants, contractors and former staff in the UK have the right to exist in the workplace without ‘direct or indirect discrimination, harassment and victimisation’.

Disability is one of nine ‘protected characteristics’ covered by the EqA 2010. The individual must show that they have or had a disability for the purposes of the legal definition set out in the EqA 2010. If they satisfy this definition, they are then legally protected from suffering a detriment due to the disability.  This means, in practice, that you are legally protected from bullying or a lack of opportunities because of your disability. You are able to request adaptations which would allow you to do your job to the same level as your non-disabled colleagues. These adaptations are called reasonable adjustments.

Significantly, employers must make reasonable adjustments to ensure that those with a disability are not ‘substantially disadvantaged’ in the course of their normal duties.

As a disabled employee or applicant, you could be entitled to (as applicable):

  • Flexible or remote working arrangements
  • A wheelchair-accessible working space
  • Adapted safety equipment such as visual fire alarms

Is it discrimination?

There are several types of disability discrimination an individual may suffer, all of which have slightly different tests that need to be met by the individual claiming the discrimination.

Direct discrimination is more easily defined and is what many people think of when they consider mistreatment in the workplace. It may include, but is not limited to:

  • Making jokes about your disability
  • Being explicitly denied a job or opportunity because of your disability
  • Explicitly refusing reasonable adjustments
  • Discrimination by association – such as denying flexible working for caring responsibilities.

Indirect discrimination is harder to recognise because it is generally more a structural, policy-driven issue. More common types of this type of mistreatment include:

  • A policy against flexible working
  • Failing to produce accessible internal communications, such as posters using braille
  • Certain dress code policies

Discrimination arising from disability is when an individual is treated unfavourably by someone else because of something arising from their disability.

If an employer has a policy or a practice that places a disabled employee at a substantial disadvantage or they have a physical feature in their premises that does so, the employer has a duty to make reasonable adjustments to correct this. The employer would have to know or reasonably be expected to know of the disability and the substantial disadvantage and the duty is only to make a ‘reasonable’ adjustment.

Objective justification

On some occasions, your employer may need to make a decision that can cause discrimination in the legal sense.

While it may disadvantage you materially, it might still be permitted if there is an ‘objective justification’.

This may mean that your disability genuinely prevents you from doing a key aspect of your role or that your employer has a genuine business need and the unfavourable treatment must be a proportionate means of achieving a legitimate aim.

For example, if you drive often as part of your job but are diagnosed with an eye condition which means it is no longer safe for you to drive, then you may be legitimately moved into a different role or, if this isn’t possible, dismissed because you are unable to carry out your duties safely and legally.

I think I’ve been discriminated against – what can I do?

If you think that you have experienced disability discrimination, you may want to take action against the employer.

We can advise you on your options and on navigating mediation or reaching an informal solution.

However, if this is not effective at resolving the issue, you can also take your complaint through your employer’s complaint procedure or through the courts.

We appreciate that pursuing litigation in addition to managing a disability and potentially seeking new employment can be challenging, so we provide all-encompassing support that prioritises your needs.

Contact us to find out more.

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Joanna Alexiou

Joanna Alexiou

Associate Solicitor at Mackrell.Solicitors
Joanna joined the firm’s Employment Law team in February 2020 having previously worked at another prominent firm of solicitors in the heart of London. Joanna has worked with clients from the finance, technology, arts and culture, marketing, charity and food and drink sectors.
Joanna Alexiou

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