As an employer, your workforce may include employees who are disabled. You have a duty to never treat your staff differently due to them having a disability or a mental health condition.
Failure to stop this form of discrimination, as well as all other forms can lead to claims being made against you at an employment tribunal.
In this guide, we'll discuss what disability discrimination is and its different forms, how to manage it in your workplace, and if discrimination is ever lawful
What is a Disability?
A disability is a "physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities".
As an employer, you must remember how having a disability can affect an employee and the difficulties they face.
What is Disability Discrimination?
Disability discrimination is when disabled people are treated differently or put at a disadvantage.
This treatment could be a one-off or an ongoing rule or policy which makes accessing something difficult, or even impossible. It's important to remember that discrimination doesn't have to be intentional to be unlawful.
What is Workplace Disability Discrimination?
Workplace disability discrimination is when disabled employees are unfairly treated at work.
As an employer, you have a legal duty to ensure any employees with disabilities are protected against discrimination of all forms. So, you must understand the law in the UK on discrimination due to disability.
Disability Discrimination Law
In England, Scotland, and Wales the Equality Act 2010 replaced the Disability Discrimination Act (The Equality Act doesn't apply in Northern Ireland). It says that disabled people have the right to "reasonable adjustments" that make jobs accessible. Making discrimination of all forms against the law.
It also protects employees who have mental health conditions from discrimination and being treated unfairly.
How Does the Equality Act 2010 Protect Against Discrimination?
The Equality Act 2010 protects people with a disability from unfair treatment and discrimination at any time, including whilst they're at work. It's against the law to discriminate against anyone because of their:
- Marriage and civil partnership.
- Pregnancy and maternity.
- Religion or belief.
- Sexual orientation.
- Gender reassignment.
You should never treat someone differently at work due to protected characteristics, this includes disability. It's against employment law and can lead to claims being raised against you in the future.
Different Types of Disability Discrimination
Disability discrimination can take many forms, all of which are as important as each other. To reduce it in your workplace, it's important to become familiar with its different forms.
Let's discuss them all in more detail:
Direct Disability Discrimination
Direct discrimination is when someone with a disability is treated unfairly and differently from someone in a similar situation.
This type of unlawful discrimination is often the most obvious and makes the victim feel like they're intentionally being treated differently. You should never treat disabled employees unfairly, this may lead to claims being raised against you.
Indirect Disability Discrimination
Indirect discrimination is when a way of working or a policy has an impact on disabled employees compared to those who are not disabled.
Although not intentional, this form of discrimination can still have negative effects. You should communicate with all your employees before implementing a new policy so concerns may be raised.
Failure to Make Reasonable Adjustments
By law, all employers must make reasonable adjustments for disabled employees and job applicants. Failure to make these adjustments can lead your disabled employees to be at a substantial disadvantage to others.
Examples of a reasonable adjustment are:
- Assistance for people with visual impairments.
- Making physical changes to your building, such as ramps for a wheelchair user.
- Chairs with extra back support.
You have a responsibility to make reasonable adjustments. However, if this isn't possible (for example building a lift), then you can legitimately refuse the request.
Discrimination Arising from Disability
Discrimination arising from disability is when someone receives unfavourable treatment because of something to do with their disability.You should never treat disabled employees differently due to the circumstances surrounding their disability.
Disability Discrimination by Association
Disability discrimination by association is when someone is treated differently due to their association with a disabled person.
For example, not choosing an employee for a promotion because their child is disabled and may require extra care. This is against employment law and should be avoided.
Harassment is unwanted conduct relating to a protected characteristic. This behaviour affects a person's dignity and creates a hostile, degrading, or offensive environment. You should never harass an employee due to them having a disability or a mental health condition.
Victimisation is a form of discrimination that can lead an employee to suffer mental, emotional, or physical harm. This behaviour typically happens after a complaint has been made as a form of retaliation.
This type of disability discrimination often occurs towards someone who isn't disabled, but simply because they've supported someone who has made a complaint of discrimination.
Examples of Workplace Disability Discrimination
You must become familiar with examples of disability discrimination at work. This is because it may be happening in your business but you were previously unaware.
So, let's discuss common examples in more detail:
Two examples of direct discrimination are:
- A job applicant makes the hiring manager aware they have multiple sclerosis and are not hired even though they're the best candidate.
- A higher-skilled worker doesn't get a promotion because they're disabled.
However, this form of discrimination can commonly occur throughout a business. From the hiring process, all the way through to when employees leave their roles.
Two examples of indirect discrimination are:
- A company policy is that everyone must have lunch breaks at the same time. However, an employee who is diabetic may require more breaks in order to manage their condition.
- Telling all employees they have the same timeframe to complete a project. Employees with learning difficulties may need longer to complete the task.
You may not mean to discriminate when creating policies, but be careful of the impact it may have on disabled employees.
Discrimination Arising from Disability'
Two examples of discrimination arising from disability are:
- An employee who was off work to receive treatment for their disability not receiving a company-wide bonus because they were absent at the time.
- Not giving a certain employee more responsibility because you feel they may struggle to keep up with the demands.
You should never assume anything about a disabled person, especially their capabilities or potential. Always communicate with them to see how they're coping with work.
Two examples of disability harassment are: * A disabled woman is called names or sworn at by her colleagues simply because she is disabled. * Giving a colleague an unwanted nickname because they're disabled.
Harassment and bullying should be avoided in your company at all times. You should never foster a workplace culture that allows this form of behaviour to take place.
Two examples of victimisation are:
- The employer threatens to take further action or even dismiss an employee unless they withdraw the complaint made.
- The employer threatens to take further action against an employee who is supporting a disability discrimination claim.
You should give every complaint of discrimination the respect it deserves. It's unacceptable to treat your employees differently simply because they exercised their employment right.
How to Prevent Disability Discrimination in the Workplace
As an employer, having a zero-tolerence disability discrimination and creating an inclusive workforce should be one of your main priorities. Doing this will increase your employee's confidence in you, improve your business culture, and improve your reputation.
There are lots of initiatives you can do to do so, let's discuss them in more detail:
Employ Disabled People
Employing and helping disabled people into employment can go a long way to creating an inclusive culture. Many benefits come with employing people with disabilities, such as:
- Allows your workforce to become more representative of your customers.
- Retain disabled employees in your company for a long period of time.
- Introduce new skills and knowledge to your company.
- Shows your commitment to inclusion, diversity and, equality for customers and employees.
You can also offer flexible working to your disabled employees in case they need to attend regular medical appointments.
Set Up Mentoring Schemes
You should consider setting up mentoring schemes to help disabled people into employment. This can be a great way to create a more diverse workforce.
For example, people with learning disabilities have a high rate of unemployment. So setting up a mentoring and job-shadowing programme may help them into work. These schemes allow new ideas to be bounced around between people who may not necessarily have worked together before.
As an employer, you should do everything you can to promote equality and inclusivity throughout your company.
This includes educating your current employees on how discrimination can make people feel, and how to change their behaviours.
Other ways to promote inclusivity can be smaller, like making sure you invite all of your employees to social events. You should never exclude anyone on the pretense they won't be able to attend due to their disabilities.
You should provide training to both your new and current employees about the different forms of disability discrimination. The training should include signs of discrimination, and what to do if an employee witnesses some.
You should provide annual refresher training to your employees. This is because there may be changes to rules or policies in the past 12 months.
Create Clear Disciplinary Policies
As an employer, it's your responsibility to ensure any incidents of discrimination are dealt with accordingly. So, you should create a disciplinary procedure that covers discrimination of all forms.
The policy should include consequences for discrimination. For example:
- Verbal warning.
- Written warning.
- Final warning.
This policy should be included within your employee handbook. Both parties should sign the document before employment starts.
Create Anti-Discrimination Policies
Along with your disciplinary procedures, you should also have an anti-discrimination policy. Creating one will show your employees that you're committed to preventing discrimination of all forms in your company.
The policy should include the following: * Who to report instances of discrimination to. * How to report discrimination. * Steps you'll take to investigate discrimination.
Include disabled employees on any decision-making panels
When looking to make decisions for the businesses that'll involve your employees, make sure there's diversity shown on the panel.
This'll help disabled employees get their point of view across and increase their confidence in your ability.
Can You Ask an Employee About Their Disability?
The employee has no obligation to make their employer aware of their disability or if they class themselves as a disabled person.
When hiring for a post, you should generally never ask an applicant questions about their health or disability during the recruitment process. However, you're entitled to ask them questions in the following circumstances:
- To ask if they need a reasonable adjustment for any interviews or assessment centres.
- To establish if they'll be able to carry out important tasks on the job.
- To monitor diversity levels within your company (as long as this is applied to everyone).
Is Discrimination Ever Lawful?
Yes, there are certain circumstances when disability discrimination is lawful if the employer can prove there is a good reason.
For example, all applicants must hold a driving licence to perform a certain job. This puts disabled people at a disadvantage because they may not hold a licence due to medical conditions. This is known as objective justification.
Can You be Taken to an Employment Tribunal Over Disability Discrimination?
If an employee with disabilities feels they've been the victim of discrimination, they may raise a grievance or take you to a tribunal.
If the discrimination leads to the employee resigning, they may file a claim of constructive dismissal against you. So, you need to be aware of how discrimination can impact someone and how it may affect your company further down the line.
If the claim is upheld, you may have to pay compensation as well as dealing with business and reputational damages.
Get Advice on Disability Discrimination with BrightHR
Your company may employ staff who are disabled, and as an employer you have a legal responsibility to treat them equally to their colleagues.
It's against employment law to treat someone differently because they're disabled. Failure to stop this form of discrimination can lead to claims being made against you at an employment tribunal.
If you need any advice on disability discrimination, we are on hand to help. Our BrightAdvice helpline. Give our friendly and helpful team a call on 0800 783 2806 (tel: 08007832806).
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