What is disability discrimination in the workplace?
Disability discrimination in the workplace is where someone who has a disability as defined in section 6 of the Equality Act 2010 is subjected to adverse or detrimental treatment because of their disability. Special protections are enshrined in law to protect disabled people from poor treatment at work but sadly this does not mean that disability discrimination is not happening at work every day. Sometimes companies will manage someone out because they have a disability. Sometimes this can be quite subtle, at other times overt, but mostly it causes humiliation and distress for the disabled person who knows they are not being treated fairly.
Disability Discrimination at Work: An Overview
Disability discrimination at work takes many forms. The law provides protection against a number of different types of discriminatory conduct. An employer is liable for the acts of its managers and staff if they allow disability discrimination in the workplace to go unchecked.
What is Discrimination?
Discrimination essentially means treating someone poorly, badly or unfairly because of a protected characteristic. The Equality Act 2010 protects a number of characteristics. They are: age, disability, gender reassignment, marriage and civil partnership, race (which includes nationality and ethnic origins), religion or belief, sex and sexual orientation.
The law defines a number of different kinds of discrimination. These are:
- direct discrimination, in breach of section 13 of the Equality Act. This is treating a disabled person detrimentally because they are disabled. An example would be refusing to promote someone because they suffer from depression.
- associative discrimination, also section 13. Treating an employee badly because they are the principal carer of a disabled person.
- perception discrimination, again section 13. Treating an employee poorly because the employer believes they are disabled even if they are not.
- discrimination arising in consequence of disability, section 15. This is where the employer is subjecting the employee to a detriment not because of their disability but because of something (indirectly) connected to it. An example would be dismissing someone for taking a long period of sickness absence which is disability-related without considering the disability as a mitigating factor.
- indirect discrimination, section 19. This is where a policy, criteria or practice (PCP), some aspect of the workplace arrangements, adversely impacts the person with a protected characteristic. An example would be insisting that an employee has to undertake a multiple-choice test to achieve promotion where the disabled person is neurodiverse and will not score well on this kind of testing.
- failure to make reasonable adjustments, sections 20 and 21. This is one of the most common forms of disability discrimination in the workplace. Disabled people are entitled to ask their employer to make reasonable adjustments to alleviate any workplace disadvantages they are suffering which cause them substantial issues. An example would be allowing a neurodiverse employee to have their own desk rather than hot-desking.
- harassment, section 26. Sadly this is an equally common form of disability discrimination in the workplace. A classic example is where an employer, on learning that an employee has a disability and will need reasonable adjustments, starts to deliberately put pressure on or put hurdles in the employee’s way. This is where employers are trying to manage out a disabled person by making them so fed up that they resign. Do not ever resign without taking legal advice first.
- victimisation, section 27. This is where an employer treats an employee badly either because they have raised a complaint at an Employment Tribunal or have suggested that they intend to complain.
Example of Disability Discrimination in the Workplace
Classic examples of disability discrimination in the workplace include:
- an employer refusing to make reasonable adjustments which will remove some of the workplace barriers that exist for disabled people
- an employer harassing a disabled employee by making them feel a nuisance or feel unwanted in the workplace, creating a hostile environment
- demoting someone returning from sick leave
- refusing to promote an employee because they have a disability
- unjustified performance management
Making a Decision Based on Disability
Sometimes employers will view disabled employees as less able to do the job. An example of this might be never promoting someone because they have ADHD and leaving them in the same role for years on end while others around them see their careers advanced
Helping You Understand Disability Discrimination at Work
Disability discrimination at work takes many forms. Rarely is it overt and often employees might feel as if they are imagining that something bad is going on in the background. Having said that, you know when you are being treated unfairly. A classic example of disability discrimination at work is where everything is going well until you share information about your health with your line manager or employer and suddenly things start to change. At the first sign of any trouble you should take legal advice so that you can be prepared for what lies ahead.