Disability discrimination in the workplace can be a complex and sensitive area for employers. From managing long-term health conditions and sickness absence to making reasonable adjustments and handling grievances, businesses need to ensure they meet their obligations while making practical decisions for their organisation.
At Consilia Legal, our experienced employment law solicitors advise employers on all aspects of disability discrimination and the Equality Act 2010. We provide clear, commercial and practical advice to help you manage workplace issues fairly, reduce legal risk and resolve disputes effectively.
What is Disability Discrimination at Work?
Disability is one of the protected characteristics covered by the Equality Act 2010.
Under the Act, a person will generally be considered disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Some conditions receive particular protection under the legislation, and determining whether an employee meets the legal definition of disability is not always straightforward.
For employers, disability discrimination can arise at any stage of the employment relationship, including recruitment, pay and benefits, training, promotion, sickness absence management, disciplinary proceedings, redundancy and dismissal.
This makes it important to consider potential disability discrimination issues before taking action which could disadvantage an employee or job applicant.
What Are the Different Types of Disability Discrimination?
Disability discrimination can take several different forms. Employers should understand the distinction between them when managing employees and making workplace decisions.
Direct Disability Discrimination
Direct discrimination can occur where someone is treated less favourably because of their disability.
For example, rejecting a suitable candidate simply because they have a disability could potentially amount to direct disability discrimination.
Indirect Disability Discrimination
Indirect discrimination can arise where an employer applies a provision, criterion or practice to everyone but it puts people with a particular disability at a disadvantage.
There are circumstances where an employer may be able to objectively justify the provision, criterion or practice, but this will depend on the individual situation.
Discrimination Arising from Disability
This can occur when an employee is treated unfavourably because of something arising as a consequence of their disability.
For example, an employer taking disciplinary action because of an employee's disability-related absence could potentially give rise to a claim.
Employers may have a defence where the treatment can be shown to be a proportionate means of achieving a legitimate aim. Specialist advice can be particularly valuable when assessing whether this test is likely to be satisfied.
Failure to Make Reasonable Adjustments
Employers have a legal duty in certain circumstances to make reasonable adjustments where a disabled employee or job applicant would otherwise be placed at a substantial disadvantage.
Failing to comply with this duty can amount to disability discrimination.
Disability Harassment
Harassment can occur where unwanted conduct related to disability has the purpose or effect of violating someone's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
Employers should therefore take allegations of disability-related comments, behaviour or workplace conduct seriously.
Victimisation
Employees are also protected against victimisation where they are subjected to a detriment because they have carried out a protected act, such as making or supporting a complaint about disability discrimination.
What Are Reasonable Adjustments?
One of the most important responsibilities for employers is the duty to consider reasonable adjustments.
A reasonable adjustment is a change designed to remove or reduce a substantial disadvantage experienced by a disabled employee or job applicant.
Depending on the circumstances, reasonable adjustments could include:
- changing an employee's working hours or working pattern;
- making physical alterations to the workplace;
- providing specialist equipment or software;
- modifying duties or working arrangements;
- providing information in an accessible format;
- allowing additional rest breaks;
- changing aspects of a recruitment or interview process;
- providing additional training or support; or
- considering a phased return following sickness absence.
There is no single approach that will be reasonable in every case. Factors such as how effective the proposed adjustment would be, its practicality and cost, and the employer's resources can all be relevant.
Employers should therefore assess reasonable adjustments on an individual basis rather than relying on a blanket policy.
Managing Sickness Absence and Disabled Employees
Long-term or recurring sickness absence is an area where disability discrimination issues frequently arise.
An employer may have legitimate concerns about an employee's attendance and the effect that absence is having on the business. However, where the absence is connected to a disability, employers should consider their Equality Act obligations before taking disciplinary or capability action.
This might include considering reasonable adjustments to an absence management process, obtaining appropriate medical evidence and exploring whether changes to the employee's role or working arrangements could enable them to remain in work.
Taking employment law advice at an early stage can help employers balance the needs of the business with their legal responsibilities.
Disability Discrimination During Recruitment
Protection against disability discrimination does not begin on an employee's first day of work. It also applies during recruitment.
Employers should ensure that job adverts, application processes, interviews and selection criteria do not unlawfully disadvantage disabled applicants.
Reasonable adjustments may also need to be made during recruitment, such as holding an interview in an accessible location, providing information in another format or adjusting a selection test.
There are also restrictions on when employers can ask applicants questions about their health or disability, making it important that recruitment processes are designed carefully.
Can an Employer Dismiss a Disabled Employee?
Being disabled does not prevent an employee from being dismissed. However, dismissing a disabled employee can create significant legal risk if the employer has not followed a fair process or properly considered its obligations under the Equality Act 2010.
Before contemplating dismissal, employers may need to consider matters including:
- the employee's medical circumstances and prognosis;
- reasonable adjustments;
- alternative duties or roles;
- whether disability-related absence should be treated differently;
- the operational impact on the business; and
- whether a fair capability or other relevant procedure has been followed.
The appropriate approach will depend heavily on the circumstances. Taking legal advice before reaching a decision can reduce the risk of an Employment Tribunal claim.
Defending a Disability Discrimination Claim
If an employee or job applicant alleges disability discrimination, obtaining advice early can put your business in a stronger position.
Our employment law solicitors can support employers throughout a dispute, including:
- assessing the merits and potential value of a claim;
- responding to grievances and internal complaints;
- advising during ACAS Early Conciliation;
- exploring settlement where commercially appropriate;
- preparing Employment Tribunal responses and evidence; and
- representing and supporting employers throughout Tribunal proceedings.
We can also advise businesses before a dispute develops, helping you identify risks and determine the most appropriate next steps.
How Consilia Legal Can Help Employers
Disability discrimination cases often involve difficult decisions and highly individual circumstances. Getting the process right can help protect your organisation while ensuring employees are treated fairly.
Our experienced employment solicitors provide practical advice tailored to your organisation and commercial objectives.
We can assist with:
- reasonable adjustment requests;
- disability and long-term sickness absence;
- capability procedures;
- grievances and disciplinary matters;
- recruitment and promotion decisions;
- redundancy involving disabled employees;
- settlement negotiations;
- ACAS Early Conciliation;
- defending Employment Tribunal claims; and
- reviewing workplace policies and procedures.
Speak to Consilia Legal’s Disability Discrimination Solicitors
If your business is dealing with a potential disability discrimination issue, seeking advice early can help prevent matters from escalating and reduce the risk of a costly dispute.
Consilia Legal's specialist employment law team advises businesses of all sizes on disability discrimination, reasonable adjustments and wider employment law issues.
Our aim is to give you clear advice on your options, risks and recommended next steps so that you can make informed decisions with confidence. Contact us today on 0113 322 9222 or email enquiries@consilialegal.co.uk
