“Disability” is one of the protected characteristics of UK Employment Law. This means that it is illegal for employers to discriminate employees on grounds of their disability. It thus gives employees who are disabled certain protection and equal treatment at the workplace. However, according to a recent research, over half of the disabled people are being bullied or harassed in the workplace because of their impairment, and 21% of them try to hide their disability from their employers.[1] This even causes more problems to those who experience hidden disabilities, such as chronic pain or mental health conditions. Take Sally Taylor as an example. She has profound hearing problems and works for the local government music services. Despite having a hearing dog wither, her colleagues don’t really understand her needs and her disability. “People don’t understand I need good lighting, no background noise, and them facing me so I can lip-read.”[2]
It is vital that the society create an environment where disabled people and people with other protected characteristics are treated equally and fairly. This is no doubt the objective of the Equality Act 2010. But who are these disabled people? What sorts of discrimination do the legislation prohibit? Are there any positive obligations imposed on employers to give better treatment to disabled employees? What should employees do if they find out that their employers discriminate them based on their disability? These are important questions that both employers and employees need to know.
Who are “the disabled”?
Disabled people are those who have physical or mental impairment, and that impairment has a substantial and long-term effect on that person’s ability to carry out normal day-to-day activities, according to section 6 of the Equality Act 2010.
Further definitions are given in the Act and case law in terms of “substantial”, “long-term” and “normal day-to-day activities”. “Substantial” basically means the disability must be “more than minor or trivial”; “long-term” means that the disability must last for at least a year; “normal day-to-day activities” mean activities that normal people do in real life, such as using a telephone, taking a public transport, etc. This is an interesting point since when the activities are not “normal” or “ordinary” enough, the fact that the disabled people are not capable of doing that particular thing due to their disability does not bring them under the protection of the Act. So a garden assistant who was unable to lift very heavy objects after being disabled was not protected under the Act because he was still capable of lifting everyday objects, which normal people can do.[3] This causes controversy since lifting the heaving objects itself is part of the job of the gardener. Allowing him to be fired because he couldn’t lift heavy objects means allowing the employer to discriminate him based on his disability.
What kinds of discrimination do the Act entail?
There are broadly speaking, four types of discrimination, namely direct discrimination, indirect discrimination, discrimination arising from disability and failure to make reasonable adjustments.
Direct discrimination means that someone is treated less favourably because of their disability than someone without a disability would be treated in the same circumstances. It is useful to think of a hypothetical person, who are not disabled, and compare that person to the disabled claimant to see if the employer would treat the disabled claimant differently. It is interesting to note that it is also illegal to treat a person less favourably because the employer thinks that person has a disability, regardless of whether that person really has disability (discrimination by perception) and because the person is associated with someone who has disability (discrimination by association).
Indirect discrimination means that a rule, called a PCP, is applied to all employees, but would put a certain group of people (ie. those who are disabled) in a particular disadvantage when compared to other ordinary employees. However, unlike direct discrimination, indirect discrimination can be justified if the PCP is found to be a proportionate means of achieving a legitimate aim. This is often very difficult to prove, since the objective justification must entail a real business need that makes the accidental impact on disabled people less significant than the importance of the business aim.[4]
Discrimination arising from disability is a specific form of protection given to employees who are disabled. This additional protection given to disabled persons prevent the employers from saying that they are dismissing the employee because they are not capable of doing their job, rather than the disability itself. Section 15 of the Equality Act says that it is equally illegal to discriminate someone because of something arising from their disability. However, the employer must first know that the employee suffers from a disability, and the employer can show that the treatment is proportionate.
Duty to make reasonable adjustments place duty on the employers to help their disabled employees overcome their challenges that they face at the workplace. The “reasonableness” of the adjustments is largely dependent on cost and efficacy, which in turn is dependent on the size/ profits/revenue of the business. Thus, it may be reasonable to require the employer to provide parking facilities, suitable facilities, flexible working schedule, and allow for regular breaks if those are appropriate and do not incur significant cost on the running of the business.
What should employees do when they find out that they have been discriminated?
If an employee suspects that they are being discriminated against due to their disability, they should first fire a formal grievance with the HR department. If the matter remains unresolved, they should consider commencing legal process. It is noted that the claim must be made no later than three months after the day from the last act of discrimination.[5] It is also possible for the employee to resign and bring a claim for “constructive dismissal”, if the employer did something which violates the fundamental aspect of the employment contract, and that amounted to a “breach of trust and confidence’ between the employer and the employee.
Looking ahead to create a better work environment
Employers need to provide better support for disabled employees to help include them within the workplace. This is especially so for people with invisible disability, since their disability is often being overlooked by colleagues. To achieve this, employers can offer channels and spaces for employees to raise any issues they face. Reasonable adjustments should be made to those who are in need and specialist advice can be brought in to understand what issues disabled people are facing. Raising awareness is crucial and seminars and talks can be organised to help everyone understand their colleagues. A workplace should be free from discrimination, fear, and injustice, so that everyone can strive and showcase their full potential.
Stephen Lau
Employment Law Section Editor
23 March 2019
[1] Disability discrimination: your legal rights, The Guardian, https://www.theguardian.com/careers/2017/feb/22/disability-discrimination-legal-rights
[2] Hidden disabilities at work: “Every day I’m fatigued and in pain”, The Guardian, https://www.theguardian.com/careers/2017/feb/21/hidden-disabilities-at-work-everyday-im-fatigued-and-in-pain
[3] Quinlan v B & Q plc (UK EAT 1386/97).
[4] Homer (2012).
Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes above.
Comments