Relationships at Work Sections

Combating disability discrimination

Although we all hope we’ll never experience discrimination in the workplace, unfortunately it can and does happen. 

Thankfully, there are rules in place, enacted by law, to prevent workplace discrimination and provide those who experience it with the tools to address it. 

Discrimination can happen at any point in your professional journey, including with regards to: 

• Recruitment 
• Pay, terms and conditions of employment 
• Sickness absence 
• Opportunities for promotion
• Training opportunities 
• Unfair dismissal 
• Redundancy

To protect individuals from experiencing discrimination in both their professional and their personal lives, the Equality Act was set up.

The Equality Act (2010)

Introduced in October 2010 and bringing together over 116 pieces of legislation, the Equality Act is designed to promote equality, prevent discrimination and protect the rights of individuals. Government guidance on the Equality Act 2010.

The Act’s main aim is to protect people from discrimination, harassment and victimisation. By providing an actionable legal framework, it protects our rights and advances equal opportunities for all. 

Who does the Equality Act (2010) protect? 

It protects everyone, but there are a number of personal attributes related to identity that the Act explicitly addresses. They’re known as protected characteristics. 

These characteristics are a fundamental part of a person’s identity, and they’re safeguarded in the Act to make sure no one is treated unfairly based on these aspects. 

The characteristics protected by the Act are: 

• Age 
• Disability 
• Gender reassignment 
• Marriage and civil partnership
• Pregnancy and maternity 
• Race 
• Religion or belief 
• Sex 
• Sexual orientation

What does the Equality Act look like in practice? 

The Act is in place to help people recognise harmful behaviour and correct it so as not to offend, upset or discriminate against another person. This can look like: 

• Equal treatment 

In practice, this means all individuals should be treated equally regardless of their race, gender, religion, sexual orientation, or any of the other protected characteristics listed above. 

• Reasonable adjustments 

The Act requires that reasonable accommodations are made for those with disabilities or specific needs. This can include supporting physical accessibility, adjusting work schedules, or providing assistive technology to ensure everyone can access services or facilities.

• Anti-harassment and bullying  

The Act also serves to protect people from being harassed or bullied based on any of the protected characteristics (listed above). 

What is disability discrimination? 

Before we delve into disability discrimination, it’s important to understand what ‘disability’ actually means and looks like. 

The Equality Act’s definition of disability applies to anyone who: has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. 

Types of discrimination (and what they look like) 

The Equality Act (2010) lists four main types of discrimination: direct, indirect, harassment, and victimisation. 

Within the Act, there are two additional types of discrimination relating solely to the protected characteristic of disability: discrimination arising from a disability, and failure to make ‘reasonable adjustments’. 

We’ll explore each type of discrimination in more detail below. 

Direct discrimination 

This type of discrimination can fall into one of three categories: 

1. Direct discrimination
   If someone is treated less favourably due to their disability, this is known as direct discrimination. 
2. Direct discrimination by association
   If someone is treated less favourably because a person they’re associated with – such as a friend, family member or colleague – has a disability, this is known as direct discrimination by association. 
3. Direct discrimination by perception
   If someone is treated less favourably because they are believed to have a disability, whether this is the case or not, this is known as direct discrimination by perception. 

What does direct discrimination look like? 

Direct discrimination can take many forms. If you have a disability and experience any of the following situations, this could be an example of direct discrimination: 

• Being turned down for a job, or being dismissed because of your disability 
• Having a promotion or additional training withheld because of your disability 
• Having poorer terms and conditions in your contract, or having fewer contractual benefits because of your disability 

Indirect discrimination 

Indirect discrimination is usually less obvious than direct discrimination, and is often unintentional. 

In the workplace, this is where an employer brings in a rule or process that applies to all employees or job applicants, but puts those who share a certain protected characteristic (such as disability) at a disadvantage. These rules, processes or requirements can be expressed in writing or verbally. 

Examples can include: 

• Recruitment selection criteria 
• Contractual benefits 
• A redundancy scoring matrix 
• Any other workplace practice 

The only way this can happen and not be considered indirect discrimination is if the employer can justify their decision(s). 

Indirect discrimination is justified if the employer can prove it is ‘a proportionate means of achieving a legitimate aim’. However, this can be difficult to prove as two criteria need to be met: 

1. There is a legitimate aim 

This needs to be a good business reason behind the decision made (often ‘cost’ is not considered a good enough reason). 

2. The actions taken are proportionate, appropriate and necessary

The employer will also need to consider alternative ways of achieving the same aim that would be less discriminatory, and be able to show that the decision-making process has been fair and reasonable. 

Harassment 

Harassment is defined as ‘unwanted conduct’ and must be related to one of the previously mentioned protected characteristics, for example disability. 

Behaviour is considered to be harassment when it has the purpose or effect of harming a person’s dignity or creating a working environment that is: 

• Intimidating 
• Hostile 
• Degrading 
• Humiliating 
• Offensive 

Harassment can take many forms, but often looks like: 

• Bullying 
• Using insensitive nicknames 
• Making threats 
• Asking intrusive or inappropriate questions 
• Excluding or ignoring someone (e.g. not inviting someone to meetings or events) 
• Making insults 
• Making unwanted or offensive jokes and comments 
• Creating unwanted gossip that the person finds offensive 

Whilst some people will attempt to pass such behaviour off as ‘banter’, this is not a valid defence or justification for their offensive behaviour. 

Harassment doesn’t only impact the person on the receiving end of the insults; it can impact those around them, too. Where this is the case, another employee who has witnessed such behaviour can make a complaint of harassment even if they don’t share the same protected characteristic as the person being harassed. 

Victimisation 

Victimisation happens when an employee is treated differently or unfairly because they have spoken out against workplace discrimination. This can include: 

• Making an allegation of discrimination 
• Supporting someone else who has made a complaint of discrimination
• Giving evidence that relates to a complaint about discrimination 
• Raising a grievance based on inequality or discrimination 

Victimisation can also happen when it is believed that an employee has done one of these things, or that they’re likely to do so in the future, even if this isn’t the case. 

Those who make or support an allegation of discrimination or victimisation are protected under the Equality Act, even if the information or evidence they give proves to be inaccurate. The only time this wouldn’t be the case is if they give support, information or evidence in bad faith (i.e. maliciously). 

Discrimination arising from a disability 

Discrimination arising from a disability occurs when someone is treated unfavourably not because of their disability itself, but because of something linked to their disability. 

Those who experience this behaviour and make a complaint about it do not need to compare their treatment to how anyone else is being treated. 

Examples of things linked with a disability might include: 

• Being off work due to illness 
• Problems with movement 
• Difficulties with reading, writing, talking, listening, or understanding 

Language plays a key role in disability discrimination law, and the terms ‘unfavourably’ and ‘less favourably’ are used carefully. 

• ‘Less favourably’ is used where someone submitting a complaint of direct discrimination would have to compare the way they’ve been treated to the way other people, without a disability, are treated. 
• ‘Unfavourably’ is used where the person experiencing discrimination arising from a disability suffers a ‘disadvantage’ – but they do not have to compare their treatment to someone else’s. 

Much like with indirect discrimination, claims of discrimination arising from a disability will be successful if the person the complaint is logged against can’t objectively justify the unfavourable treatment (as ‘a proportionate means of achieving a legitimate aim’). 

However, unlike with indirect discrimination, the person making the complaint doesn’t need to show that others with the same protected characteristic (i.e. disability) are disadvantaged; they only need to show that they themselves are disadvantaged. 

Claims of discrimination arising from a disability are even more likely to succeed where the unfavourable treatment could have been avoided if the employer had made ‘reasonable adjustments’. 

Failure to make ‘reasonable adjustments’

Failure to make ‘reasonable adjustments’ is one of the most common types of disability discrimination. 

A ‘reasonable adjustment’ is a change made to the working environment, or working processes, that will help a disabled employee to fulfil the duties of their role more easily, without being at a disadvantage. 

In the recruitment process, this is also extended to job applicants living with a disability.

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‘Reasonable adjustments’ and additional support

As outlined in the section above, a ‘reasonable adjustment’ is a change made to the working environment, or working processes, that helps a disabled employee to fulfil their duties. Failing to do so is one of the most common types of disability discrimination. 

When assessing whether or not ‘reasonable adjustments’ need to be made, usually an employer will ask some key questions: 

• Do they need to change how things are done?
• Do they need to physically change the workplace to make it more accessible? 
• Do they need to provide extra equipment or assistance for the disabled employee?

Some adjustments will be simple and cheap to implement, and some even cost nothing. An employer will never be required to change the basic nature of a job, but where ‘reasonable adjustments’ need to be made, the employer will be required to foot the bill. 

Examples of a ‘reasonable adjustment’ 

A ‘reasonable adjustment’ might include: 

Changing the terms and conditions or working arrangement for a disabled employee 

This can include: 

• • Changing hours 
  • Changing shift patterns 
  • Supporting flexible working arrangements

Making physical changes to the workplace to make it more easily accessible 

This can include: 

• • Rearranging furniture and equipment 
  • Adding handles and support rails to access routes to make it easier for disabled employees to move around the building

Providing extra equipment 

Such as supplying a disabled employee with a computer they can use to work from home when they need to

Employing a support worker

To provide additional assistance and support a disabled employee when working outside of the main workplace 

The decision of what (if any) adjustments will be made ultimately sits with the employer. It’s advisable for employers to seek medical advice during the decision-making process so that they can make sure any changes made will benefit the employee. 

Places to seek advice include: 

• An independent occupational health specialist 
• The employee’s GP 
• The Government’s Fit for Work guidance 

In any case, the employer will need to focus on the employee’s ability to function on a day-to-day basis rather than focusing on a medical diagnosis. 

What are unreasonable adjustments? 

Whilst the employer has a legal duty to make ‘reasonable adjustments’ that will support their disabled employees, sometimes the changes requested are unreasonable. In this case, the employer can refuse to make them. 

Whether requested adjustments are reasonable or unreasonable depends on a number of factors, including: 

• Are the changes practical for the employer to make? 
• Does the employer have the resources to pay for them? 
• Will they actually help to remove or reduce the ‘disadvantage’ in the workplace? 
• Will they negatively impact the health and safety of others in the workplace?  

‘Reasonable adjustments’ can be a complex area of disability to navigate. You can find more advice in the Statutory Code of Practice from the Equality and Human Rights Commission, or by calling the Acas Helpline on 0300 123 1100. 

Support for ‘reasonable adjustments’ – Access to Work 

Access to Work is a government scheme that can help by providing advice (and sometimes financial support) for employers needing to make reasonable adjustments for an employee. 

The scheme may contribute to, or cover the cost of, workplace adjustments such as specialist equipment, a support worker for the disabled employee, or specialist travel costs for getting to and from work if the employee can’t use public transport.

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Opening the conversation – talking to your employer

It’s important to talk openly with your employer whenever you’re struggling, as this is the only way to get the help you need. However, it’s not always easy to start the conversation. 

In this section, we’ll explore some of the techniques you can use to open the dialogue with your employer and share information about your health. 

When you might need to talk to your employer 

Communicating when you’re struggling is key to getting the support you need to stay in work. 

Being open and honest with your employer about your situation can be beneficial in a number of scenarios, including: 

• When you need time off for medical appointments 

If your employer is in the know about your condition, they’re more likely to approve time-off requests during working hours so that you can get medical support when you need it. 

• When you make a request for ‘reasonable adjustments’

Knowing about your condition and the factors that can make it worse may make it easier for your employer to take reasonable steps to accommodate your needs, including by making ‘reasonable adjustments’ if necessary. 

• If there’s ever an emergency situation at work 

Not only will your employer and your colleagues know what to do if you experience a medical emergency at work, but they’ll also know how best to support you during other emergency situations, such as in the event of a fire. 

Talking to your employer about your health 

Whilst conversations about our health can sometimes feel awkward and uncomfortable, they don’t need to be. 

Before talking to your employer, think about what you’re going to say and how you might be able to explain your needs. 

How to prepare for a conversation with your employer about your condition

Here are some top tips you can use to prepare for this situation: 

• Get all the facts 

You might consider speaking to your GP or occupational therapist about how your condition can affect your work (along with possible solutions you/your employer could implement to make things easier)

• Gather information 

Preparing extra materials that you can leave with your employer will help them to learn more about your condition and understand how it affects you at work. Having documents like this to hand can also be helpful in case they ask you any questions that you’re not quite sure how to answer. 

• Be proactive 

Listing the steps you’re taking to manage your condition and outlining how these can impact on your work will help your employer to develop their understanding so that, if productivity is ever affected, you can feel more comfortable discussing it openly with them. 

How to talk to your employer about your health

Here are some top tips for opening the dialogue and sharing information about your health with your employer and/or colleagues: 

1. Be open, clear and brief about how your condition affects you, inside and outside of work
2. Share the important information they need to know in order to support you during a medical/workplace emergency 

Asking for adjustments to the way you work 

If you’re struggling to do your job because of your health, the Equality Act 2010 says that your employer must make changes (reasonable adjustments) to your working conditions so that you can remain in, and do, your job. 

When talking to your employer, consider asking if you can: 

• change job to take on lighter or less demanding work; 
• reduce your workload or get help from a colleague;
• work flexible hours, or from home; 
• be trained to do another job. 

If your employer is unable to make the necessary changes to support you, you’ll be deemed to be unfit for work and this will be recorded in a new fit note.

Extra help and support 

Unfortunately, gaining confidence in sharing information about your condition and how it impacts you doesn’t always mean you’ll receive the support you need from your employer. Thankfully, there are a number of places you can go to find further support and advice if you need it. 

If you feel you’re not getting the help and support your need from your employer, you can reach out to: 

• Your trade union (if applicable) 
• Your occupational health provider 
• Your HR department 
• Your local branch of the Citizens’ Advice Bureau 
• Acas (0300 123 1100) 

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