Disability Discrimination in the Workplace

Caragh Bailey
17/11/2020
disability discrimination in the workplace advice from employment law friend

You are protected from discrimination at work based on your mental or physical disability, which has had a long term adverse effect on your ability to do normal day to day activities. You are also protected if you had a disability in the past, but have since recovered.

Disability discrimination in the workplace is legislated against in section 6 of The Equality Act.
Disability discrimination in the workplace is wrong, but sadly happens often. Below we explain when you are and aren't protected by employment law. However, to learn more about what behaviours constitute the different types of discrimination, read our main page on discrimination. If you'd like to jump ahead, read our article Discrimination at work: What should you do?

3 examples of disability discrimination in the workplace

    1
    Disability harassment at work. You suffer from depression and anxiety, this affects your performance at work. Your supervisor shouts at you in front of your colleagues, this worsens your mental health and further damages your performance.
    2
    Disability discrimination by association. Your child is disabled. You have taken a lot of time off of work to care for your child this year as they have changed schools. You are dismissed for repeated absence.
    3
    You have a mobility impairment and need to park close to the office. Your employer only gives senior staff parking spaces, and refuses to make a reasonable adjustment to give you one.

You are also protected from being treated ‘unfavourably because of something arising in consequence of disability’. If they don’t know about your disability, it doesn’t count, but if you’ve been showing signs (for example, crying and signs of distress, increased lateness or absence, drop in performance) then they might reasonably be expected to realise that you have a disability.

It would also be classed as disability discrimination in the workplace if they knew that you are disabled, but didn't understand how your disability affects you.
For example: for a reason arising from your disability, you have had a higher number of absences from work. Your employer selects you for redundancy as a result. If the absence were just a part of the reasons that you were selected for redundancy, this would still be discrimination.

Your employer may be able to justify disability discrimination in the workplace because of something arising from your disability, if it is a reasonable and proportionate way of meeting a legitimate aim: Such as, maintaining the health and safety of staff and customers, or making sure the business can run properly. If there is a fairer way that they could have managed the issue arising from your disability, you can argue that their discrimination is not justifiable.

Your employer must make ‘reasonable adjustments’ to help you with:
  • Application forms
  • Aptitude tests
  • Interview arrangements
  • Terms of employment including pay
  • Providing workplace facilities and equipment
  • Workplace benefits (access to recreation and refreshment facilities)
  • Promotion, transfer and training opportunities
  • Discipline and Grievances
  • Dismissal or redundancy
Click here to get help asking for reasonable adjustments

Further reading:

You are also protected from disability discrimination in the workplace if you have some illnesses, impairments or conditions, including some which might not affect your day to day activities.

For example:
  • You have cancer, or a growth which needs removing before it becomes cancerous.
  • You are HIV positive, even without symptoms
  • You have a severe disfigurement (such as facial scarring or skin disease)

Mental Illness Discrimination in the Workplace

You are also protected from disability discrimination in the workplace if you have an impairment which reduces your abilities in some way or makes things harder. It doesn’t have to be medically diagnosed, but you will need to provide medical evidence that it has a 'long term' or 'fluctuating or recurring', 'substantial' effect on your ability to perform daily tasks.

For example:
  • You suffer from depression
  • You are partially sighted to certified blind
  • You have MS (Multiple Sclerosis)
  • You have dyslexia
  • You have autism
  • You have chronic migraines
  • You suffer from stress causing difficulty concentrating, ongoing fatigue

Definitions
Your impairment lasts for at least a year
Your impairment is also considered long term if it is likely to affect you for the rest of your life, even if your life expectancy is less than one year.
Your impairment affects you for periods of a few weeks or months at a time, has a substantial adverse effect when it does, and could happen again.
Some examples of the effects of a substantial impairment:
  • You take longer with everyday tasks, such as getting dressed and preparing meals
  • You find it difficult to go out on your own
  • You can’t concentrate on reading or watching TV
  • You find it difficult to socialise and interact with people because you struggle to understand what they mean You have seizures that cause you to lose awareness of your surroundings
  • You need to use reading aids
If you have a long term condition which is currently not substantial, but is likely to become substantial in the future, this is still classed as substantial.
If you take medication or have treatment for your condition, which makes it manageable, you are still protected from disability discrimination in the workplace based on what the impact of your condition would be if you weren’t getting the medication or treatment you need.
For example: If your condition is manageable with medication, but you would be at risk of fits, seizures, blackouts or hospitalisation without it, you would be classed as disabled and therefore protected from disability discrimination for that characteristic.

Your employer might try to dispute whether you have a disability.
Be prepared to argue your case at the employment tribunal.
    1
    Keep a diary of what you do, what you find difficult and why.
    2
    Ask friends and family to write down ways you are and have been affected.
    3
    Get a medical professional to write a letter explaining:
    • How long your impairment is likely to last, and whether it is likely to get worse
    • What would happen if you medication or treatment were stopped
    • What effect it has on your everyday activities

Frequently Asked Questions

Have you been a victim of disability discrimination in the workplace?
Sadly, some employers still discriminate, you don't have to accept this treatment. Get in contact with us and see how we can help.

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This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of our company. For employment law advice please get in contact and speak to your employment law solicitors.
 
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