Are you doing all you can to avoid disability discrimination?

Posted:28th February 2020

Employers are increasingly being held to account on their policies and approach to equality and diversity in the workplace. Solicitor Matthew Sigsworth, from EMG Solicitors, explains the law around disability discrimination.

It’s the start of a new decade and a perfect time for both large and small businesses to review their attitude and policies to ensure their workplace is welcoming and suitable for all.

The vast majority take the necessary steps to ensure their businesses are free from intolerance and bias, meeting expected standards when it comes to the fair treatment of employees. Over the past decade, industry and commerce has taken enormous strides in the right direction to ensure workers are treated equally and fairly.

However, there are some who continue to flout human rights laws, either because they are blissfully unaware of their responsibilities or simply because they never got around to it – and the consequences could be costly. There may also be those who simply don’t care, but, in my experience, they are few and far between.

Disability discrimination

In October 2010, the Equality Act 2010 replaced the Disability Discrimination Act 1995, setting out the law around six different forms of disability discrimination, namely:

  • Direct discrimination
  • Indirect discrimination
  • Discrimination arising from disability
  • Failure to make reasonable adjustments
  • Disability-related harassment
  • Disability-related victimisation

It has a very wide application, but when it comes to the workplace, the duty is very much on the employer to make reasonable adjustments for both their employees and also job applicants who are disabled.

This is because the concept of “reasonable adjustments” is at the heart of disability discrimination law. In practical terms, it is also the issue that employers are most likely to come across.

It’s important to note that the duty is on the employer to make the adjustments. The employee does not have to make a request for reasonable adjustments.

Defining disability

The Equality Act definition of disability is as follows:

A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities.

This is a very broad definition. Importantly, it covers so-called “hidden” disabilities, such as dyslexia, post-traumatic stress disorder, diabetes and depression.

However, an employer can only be potentially liable to make reasonable adjustments if they know or should know that the member of staff or job applicant has a disability.

The duty on the employer to make reasonable adjustments comes into play if the disabled worker is placed at a “substantial disadvantage” by either:

  • an employer’s “provision, criterion or practice”. This phrase is deliberately wide and includes one-off decisions, as well as general employment policies.
  • a “physical feature” of the employer’s premises, such as stairways, parking areas or toilet facilities.
  • a failure to provide an “auxiliary aid”, such as specialist IT equipment.

What’s reasonable?

“Reasonable” is the law’s favourite word, but it isn’t always very helpful as it means very different things in different contexts. So, how does an employer decide whether adjustments are reasonable?

There is some guidance in the Equality & Human Rights Commission’s Employment: Statutory Code of Practice about factors which should be taken into account. These include:

  • whether the adjustments will work in practice. However, the employee does not need to prove that the adjustment will definitely work. It is enough for the employee to show there is a chance (and not even a good chance) that the adjustment will work.
  • the financial costs of the adjustments and the availability of external funding. However, even if the adjustment is expensive, it might still be reasonable if it is cost-effective overall or in the long-term.
  • the nature and size of the employer’s business. Generally, more is expected of larger employers, compared to small and medium-sized enterprises(SMEs). A large employer or public sector organisation will be expected to make adjustments that are not even cost-effective overall. At the same time, this is not the same as saying that money is no object for larger concerns.

Finally, there are two other important points for employers to bear in mind.

  1. If the adjustment is reasonable in all circumstances, it must be made.
  2. It is also vitally important that the employee is involved in the process and consulted fully before any adjustments are introduced.

There is no doubt that discrimination is a complex area of law, so it is important that employers take good legal advice. If an employer gets things wrong, then a costly and damaging tribunal claim might follow.

There is no upper limit to the amount of compensation that can be awarded in discrimination claims (unlike claims in Unfair Dismissal, for example). However, it is better for employers to see the area of reasonable adjustments as an opportunity to keep, develop and get the most out of their most valuable resource – their people.

For legal advice about discrimination in the workplace, contact Matthew Sigsworth at EMG Solicitors on 0191 500 6989 or at [email protected]