It is against the law to discriminate against a disabled employee in the workplace. But what is disability discrimination? And what are the different types? We explain with examples.
What is disability discrimination?
Disability discrimination is when you treat someone unfairly or put them at a disadvantage because of their disability. For example, not employing someone with a disability because you don’t want disabled people working for you.
But how does the law define disability? In the Equality Act, a disability is a physical or mental condition which has a substantial and long-term adverse impact on how you carry out everyday activities. This includes using a computer or sitting in a chair.
The law classes conditions like HIV, cancer or multiple sclerosis as a disability. It starts to protect people from discrimination as soon as they get a diagnosis.
The law also covers past disabilities. So if you've had a mental health condition in the past that met the definition at the time, but you don't anymore, the law still protects you from discrimination.
What are the different types of disability discrimination?
Disability discrimination can come in six different types.
1. Direct discrimination: When you treat an employee less favourably than your other staff because of their disability.
2. Indirect discrimination: When you put a practice, policy or rule in place that applies to everyone in the same way, but it has a worse impact on some employees because of their disability.
3. Failure to make reasonable adjustments: When you don’t make reasonable practical changes to help a disabled employee at work.
4. Discrimination arising from a disability: When you treat someone unfavourably because of something that results from their disability.
Still with us? Don’t worry, there are only two more left.
5. Harassment: When you treat an employee in a way that makes them feel humiliated or offended. This includes calling them names or joking about their disability.
6. Victimisation: When you treat an employee badly because they’ve made a complaint of discrimination against you or they’re supporting someone who has.
We know that’s a lot to take in. But the different types will become clearer once we give you examples of disability discrimination at work.
Disability discrimination in the workplace examples:
Sarah goes to a job interview and mentions she has multiple sclerosis. The employer decides not to give Sarah the job even though she’s the best candidate because they presume she’ll need a lot of time off from work.
Sarah could have a case for direct disability discrimination because the only reason she didn’t get the job was that of her disability.
Sam puts out a job advert for a teacher. The advert states that all applicants must have a driving licence since the teacher will work across two schools. Claire wants to apply but doesn’t drive because of her epilepsy.
Claire could claim indirect disability discrimination because this rule puts her at a disadvantage because of her disability. She could argue that a driving licence isn’t a requirement for this position in the same way it would be for a bus driver. However, as an employer, if you can objectively justify your reasoning for implementing something that is indirect discrimination, you will not automatically be liable.
Failure to make reasonable adjustments
John is at risk of redundancy because his employer is reorganising his team. He can apply for other positions within the company and gets an interview.
As John is undergoing cancer treatment, his employer lets him pick the date and time of the interview and says he can take breaks or stop the interview when he wants. But John doesn’t perform well in the interview and someone else gets the job.
John could take his case to an employment tribunal. This is because John’s cancer treatment had an effect on his performance during the interview. He could argue that the employer didn’t make reasonable adjustments for him, for example by assessing him without an interview.
Find out what happened in the real-life example of this case between Waddingham v NHS Business Services Authority.
Discrimination arising from a disability
George’s workplace is giving all of its staff an annual bonus. George won’t get the bonus this year because his employer gave him a formal warning over his sickness absence. He was off work with depression.
This could be a case of discrimination arising from a disability, given that George’s employer treated him unfavourably as a result of his disability.
Harassment because of disability
Katie, who has Tourette’s, feels upset when her manager jokes about her vocal tics. She’s mentioned this to her manager before but he shunned her and said she was too sensitive.
Katie could claim her manager is harassing her because of her disability. Especially because her manager continues to make jokes even after she told him she finds them offensive.
Ben makes a complaint of disability discrimination against his employer. His employer threatens to sack him if he doesn’t withdraw this complaint.
This could be a case of victimisation given that Ben’s employer is treating him badly because he made a complaint of disability discrimination.