Disability is one of the protected characteristics under the Equality Act 2017 (the “Act”), which addresses both work and access to goods and services. The object of the legislation is to remove barriers to full participation in society and promote equality of opportunity. This article concentrates on workplace issues, although the topic and legal framework are wider than this.
Disability threshold
Before we consider the types of discrimination to which disabled people may be subject, we first need to establish what constitutes a “disability” for the purposes of the Act as not all conditions and impairments are covered. The Act provides that a person is considered to have a disability if the following two conditions are met:
- the person has a physical or mental impairment; and
- the impairment has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities.
There are some conditions and impairments which are automatically protected such as cancer, HIV, multiple sclerosis, or a visual impairment, ie being certified blind. There are also progressive conditions such as Alzheimer’s disease, motor neurone disease, muscular dystrophy and Parkinson’s which become protected as soon as the condition starts to have an effect on the person’s normal day-to-day activities and the effect is expected to be long-term.
A condition does not have to be clinically well-recognised to be covered. It is impossible to provide an exhaustive list as to what conditions or impairments might be considered disabilities and so employers are encouraged to focus on the effects an employee is experiencing in work, not on the label of the disability or condition. Some people may not consider themselves to be “disabled” even though they may benefit or require reasonable adjustments to be made to support them in the workplace.
What constitutes an impairment that is substantial and long-term?
An “impairment” is when someone’s physical or mental abilities are reduced in some way as a result of (but not limited to) an illness or medical condition.
The impairment must have a “substantial adverse effect” meaning it must have more than a minor or trivial impact on a person’s everyday life.
“Long-term” means that the condition must last, or be likely to last, for more than 12 months, or is likely to last for the rest of the life of the person affected. However, employers should avoid getting caught up with the timeframe as a fluctuating condition may still be considered long-term if the effects come and go.
“Normal day-to-day activities” include things people do not just at work but also at home or in their social lives, such as communicating, driving, using a computer, writing, getting washed and dressed etc.
Knowledge of disability
For some types of discrimination, the employer’s knowledge of disability is relevant. For example, where direct discrimination is alleged, the less favourable treatment must be “because of“ the protected characteristic which will be difficult to argue if the employer was not aware of the disability. Additionally, the Act provides that an employer cannot be liable for discrimination arising from disability where they did not know or could not reasonably have been expected to know that the employee had a disability.
Notwithstanding this, an employer may still be liable if they have “constructive knowledge”, ie they have information from which it might reasonably be inferred that an employee has a disability. Note that an employer can have constructive knowledge even where they fail to ask relevant follow-up questions or make further enquiries provided they are aware of some of the facts relating to the potential disability.
Types of disability discrimination
In addition to the usual types of discrimination (direct, indirect, plus the related concepts of harassment and victimisation), there are two further types of claim which are unique to disability, these being: (i) discrimination arising from disability; and (ii) failure to make reasonable adjustments.
- Direct discrimination is where an employee or a job applicant is put at a disadvantage or treated less favourably because of (i) a disability they have; (ii) their association with someone who has a disability; or (iii) someone else thinking they are disabled when they are not. For example, an employee tells a prospective employer that they have chronic fatigue, and the employer withdraws the job offer but proceeds to offer the job to someone else who is not disabled – this may amount to direct discrimination.
- Indirect discrimination occurs when an employer applies a working practice, policy or rule equally to all staff but it puts a disabled job applicant, employee or group of employees at a disadvantage and the working practice, policy or rule cannot be objectively justified. For example, if an employee who had diabetes needs regular breaks, but the break policy only allows for a lunch break, this could amount to indirect discrimination.
- Discrimination arising from disability occurs when someone is treated less favourably because of something connected to their disability, not because of the disability itself. An example of this could be dismissing someone for making mistakes owing to their dyslexia, or disciplining them for a change in behaviour caused by the medication they are taking. An employer may, however, be able to show that there is an objective justification for discrimination arising from disability, ie something resulting from someone’s disability might mean they cannot do a job even if reasonable adjustments are made.
- Failure to make “reasonable” adjustments is where an employer fails or refuses to make reasonable adjustments for someone who needs them. The purpose of reasonable adjustments is to remove or reduce a disadvantage related to someone’s disability. Examples include providing an adapted keyboard for someone with arthritis or agreeing a varied working pattern for someone who is autistic and finds travelling at the busier times on public transport very stressful. Reasonable adjustments can involve a change to a rule or practice, modifications to the working environment, or providing an auxiliary aid. What is reasonable will depend on the circumstances, ie an employer cannot be reasonably required to make adjustments which would impose a disproportionate burden on them or which would not be expected to alleviate the disadvantage resulting from the disability.
- Harassment may occur when an employee experiences unwanted behaviour related to a disability. The unwanted behaviour must have the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. For instance, if an employee makes a joke about another employee’s disability causing the disabled employee or another colleague to feel uncomfortable or offended this may be disability-related harassment.
- Victimisation occurs when someone is treated less favourably because they’ve made or supported a complaint, for example, an employee who has made a formal complaint because their manager failed to make reasonable adjustments for their disability. If the manager then starts picking on the employee in front of other staff and withholds work from them this is likely to be considered victimisation.
Can an employer ask job applicants pre-employment health questions?
Except as permitted under the Act, an employer is prohibited from asking pre-employment health questions until that person has either been offered a job or has been included in a pool of successful candidates to be offered a job when a suitable position arises. For instance, it is generally unlawful to ask a job applicant or their previous employer about their sickness absence record.
Circumstances where health enquiries can be made include where this is for the purposes of finding out if a job applicant would be able to participate in an assessment to test their suitability for the work, making reasonable adjustments to facilitate participation in the recruitment process, monitoring diversity in applications for jobs or enabling an employer to identify suitable candidates for a job where there is an occupational requirement for the person to be disabled (e.g. an acting role).
Does an existing employee have to tell an employer they’re disabled?
The short answer is “no”. As noted above, people may not consider themselves disabled or they might be worried about how their employer will react if they tell them about an actual or potential disability they have. Consequently, they can’t be “forced” to declare their status and an employer should not “probe” in a general way. There are some occupational requirements, however (see above), and matters of health and safety in relation to which it may be legitimate for an employer to ask certain questions about a person’s ability to perform core elements of the job role.
What about “invisible” disabilities?
A particular difficulty for employers is where an employee’s disability is not self-evident and may only impact or become apparent in particular situations, or in relation to certain duties or responsibilities. Examples of “hidden” or “invisible” disabilities may include Asperger’s syndrome, autism, attention deficit hyperactivity disorder (ADHD), dyslexia, obsessive compulsive disorder (OCD), post-traumatic stress disorder (PTSD), epilepsy, depression and other mental health conditions. Some physical conditions made also be “hidden” most or all of the time, eg Crohn’s disease or colitis.
- In the case of Sherbourne v N Power Ltd (2018), a tribunal found that there had been “continuous management failure” on the part of an employer to understand an employee who had autism and who felt overwhelmed and distracted when working in an open plan office with a busy walkway behind him. As a result, the employee became distressed and had a breakdown at work. The employer was criticised for failing to implement reasonable adjustments, including those recommended by the employer’s own occupational health team. The employee’s line manager made little effort to understand what autism meant and claimed that they could not implement the proposed adjustments due to inadequate training. The employee was eventually dismissed due to capability but later succeeded in claims for indirect disability discrimination and failure to make reasonable adjustments.
- Employers also need to be particularly aware to the possibility of cases where the employee is not themselves aware of their disability, as was the case in Fotheringham v Perth & Kinross Council (2011). The employee, a teacher, had reported interpersonal difficulties with pupils, staff and management and was the subject of complaints due to his rigid, rule-based attitude. As a result, the employee subsequently suffered stress and depression and after a year’s medical suspension was diagnosed with Asperger’s syndrome but returned to work. The situation escalated and he was subsequently dismissed. The tribunal found in the employee’s favour in his claims for unfair dismissal and disability discrimination as a result of which he was awarded £78,417 in compensation for injury to feelings, loss of earnings and interest.
Disability inclusive employment practices – how can employers help (and protect themselves from liability)?
- Having an inclusion and diversity policy and providing relevant training help to set the tone for all staff and, properly implemented, can enable an employer to show that they took all reasonable steps to prevent discrimination.
- Taking appropriate advice from healthcare professionals and disability specialists (as well as being informed about the applicable legal rights and protections for disabled employees) helps employers make informed, educated, decisions rather than simply “reacting” to a situation or facing criticism (and possible claims) for “not doing enough” or taking the “wrong” approach.
- Involving disabled employees in discussions about making reasonable adjustments and consulting with them helps to target support where it may be most helpful and manage expectations. There is not necessarily a “one size fits all” solution even for employees having the same disability; good communication (as in most situations) aids in identifying solutions and understanding concerns.
- Encourage representation and advocacy by all employees (disabled and non-disabled) to foster a genuinely inclusive work culture and positivity around topics affecting disability and differences generally.
The next article in our equality series will consider the protected characteristic of marriage and civil partnership.
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The guidance in this note is for information purposes only and is not intended to be exhaustive. It is not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. Cains only advises on the laws of the Isle of Man and accepts no responsibility for any errors, omissions or misleading statements or for any loss which may arise from reliance on the information in this note.
