Employment law: Disability Discrimination Act and Equality Act

In recent years in the UK, there has been a great deal of work in UK employment law to safeguard disabled workers’ rights. These rights extend not only to employees but also to potential employees during the application process. The main bulk of legislation that provides these protections are included in the Equality Act of 2010.

The Equality Act replaced many of the elements in the Disability Discrimination Act of 1995 and expanded the protections for disabled people. Due to its role in defining anti-disability discrimination law in current employment practices, we will detail the Disability Discrimination Act 1995 below, despite it now being replaced.

It is important to note that the Disability Discrimination Act is still in place in Northern Ireland, as opposed to the Equality Act 2010, which replaced it throughout the rest of the UK.

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Disability Discrimination Act of 1995

The passing of the Disability Discrimination Act in 1995 resulted from many years of public campaigning, all aimed at forcing the state to end this form of discrimination. It was amended multiple times in the intervening years between its passing and the adoption of the Equality Act in 2010.

The DDA helped ensure that anyone classed as disabled did not face discrimination, including in employment.

It enabled those discriminated against due to disability to challenge these behaviours. The types of discrimination it was designed to oppose were:

–      Direct discrimination (for example, a business having a ban on the employment of deaf people.)

–      Disability-related discrimination (for example, a building refusing entrance to a blind person due to them being accompanied by a guide dog.)

– An organisation’s failure to make reasonable changes to facilitate access to services, goods, and facilities.

– Any victimisation.

– Any harassment.

The DDA covered all types of employers, of all sizes. It did not, however, cover volunteer work or the armed forces.

Equality Act of 2010

The Equality Act was introduced in 2010, with the primary goal of consolidating all the numerous anti-discrimination laws under one umbrella act.

In employment law, it protected multiple groups from being discriminated against on several different bases, for example:

• Age

• Disability

• Gender reassignment

• Sex

• Sexual orientation

• Religion or belief

It incorporated much of the existing legislation covered in the Disability Discrimination Act 1995.

Similarly to the Disability Discrimination Act of 1995, the Equality act of 2010 does not apply to voluntary workers or the armed forces.

What is defined as a disability?

When applying the Equality Act in practice, it is crucial to understand how it defines being disabled. This can have a significant bearing on how any grievance proceedings may be brought against an employer due to discrimination.

The Equality Act 2010 classes any person as having a disability if they meet these criteria:

  1. That the person has a physical or mental impairment.
  2. That impairment has a significant and long-term adverse effect on the person’s ability to carry out normal day-to-day activities.

If the person in question meets that definition, then they can be sure that the disability discrimination sections of the Equality Act 2010 cover their situation.

Conditions that are considered progressive, such as HIV, multiple sclerosis, or cancer, are also categorised as disabilities by the Equality Act 2010. This assures anyone suffering from these kinds of conditions will be backed up by the Equality Act 2010 if they experience any discrimination in an employment situation.

What is disability discrimination in the workplace?

Disability discrimination can take numerous forms in the workplace. To take into account every form of discrimination, the Equality Act 2010 splits them into categories.

There are four primary types of discrimination, as described by the act. The act covers any discrimination that falls within these types.

The Four Main Kinds of Discrimination

1. Direct Discrimination

Direct discrimination happens when a person (colleague, employer, etc.) treats you worse than they treat others in a similar situation, just because of your disability.

An example of this would be when an applicant explains to an interviewer that they have multiple sclerosis, and an employer decides not to hire them, despite that applicant is the best fit for the job. 

Their reasoning might be that the employee would need much time off sick; however, this is discrimination and is against the law in the eyes of the Equality Act 2010.

There are three types of treating someone “less favourably” due to a disability. These are:

  1. Treated differently due to their disability (ordinary direct discrimination)
  2. Treated differently due to a perceived disability (direct discrimination by perception)
  3. Treated differently due to associating with someone with a disability (direct discrimination by association)

2. Indirect Discrimination

Indirect discrimination happens when a workplace or organisation has a specific policy or workflow that impacts disabled employees more significantly than employees who are not disabled.

This form of discrimination is illegal unless the employer can prove that the workflow or policy is as it is for a specific and legitimate reason. In the eyes of the law, this is “objective justification.”

3. Harassment

Harassment is when there is unwanted attention or conduct towards someone due to their disability, which causes distress or creates a humiliating or offensive environment for the disabled individual.

4. Victimisation

Victimisation is when individuals are treated unfairly or inappropriately because they have made a complaint of disability discrimination, or have supported a claim.

Other Types of Discrimination

As well as these four main kinds of discrimination, there are also two different kinds which can also be considered discrimination in particular circumstances. These are:

1. Discrimination relating to disability

This is when a person is treated unfairly or badly due to a reason linked to their disability, but not the actual disability itself.

2. Failure to make any “reasonable adjustments.”

This form of discrimination is when an employer fails to make any appropriate and reasonable changes to the work environment to accommodate a disabled employee or job applicant. As long as the adjustments are considered reasonable, then the employer is expected to make them.

This is one of the most common causes of disability discrimination, as there are so many variables that depend upon each workplace.

Employers Responsibilities

As well as these forms of discrimination covered under the Equality Act 2010, there are further responsibilities that an employer must make they address when interviewing or hiring a disabled individual.

This includes having rules in place, preventing discrimination in areas such as:

  • Hiring and recruitment
  • Pay and terms and conditions
  • Absence for illness
  • Training and development
  • Dismissal
  • Redundancy
  • Promotion

Employers are obliged to ensure that there are relevant protocols to prevent discrimination occurring due to any of these reasons.

Applying for a job when disabled

It is illegal to discriminate against an interviewee or any other potential employee on the grounds of disability. 

While the interviewer is permitted to ask questions about the interviewees’ health or disability, these questions must be limited. For example, there are six specific situations where it is lawful for the employer to ask an employee about their disability or health. These are:

  1. To make reasonable adjustments to the workplace.
  2. To work out whether or not an employee can take part in an assessment that is part of the recruitment process.
  3. To monitor the diversity of applicants.
  4. To determine if the employee may benefit from any schemes or procedures designed to improve the employment rate of disabled people.
  5. To determine whether or not the individual will be able to undertake a particular occupational requirement. The individual may have a specific impairment that hinders this particular occupational requirement.
  6. If there is a national security reason to ask applicants about their health and any disabilities they may have.

What you can do if you have been discriminated against

Due to this legislation, many practical actions are available if you think you have been discriminated against due to a disability.

These will always depend upon the particular disability and the situation, however, some examples of actions you can take are:

  • Make a complaint to your line manager that you are being discriminated against. Be sure to put this complaint in writing, and be as thorough as possible. Make sure the complaint is dated and, if possible, provide time-stamps of when the incidents took place.
  • Lodge a formal complaint or “grievance” to the HR department in your company. This should be in writing as well.
  • Speak to an organisation such as the Citizens Advice Bureau to hear specialist advice on how you should proceed.
  • Make sure to collect evidence of any discriminatory incidents. This can be in the form of a diary or any other type of written record. Again, be as detailed as possible.

Making a Claim to the Employment Tribunal

You can also claim disability discrimination to the Employment Tribunal. This can be an effective way of dealing with discrimination.

To do this, make sure to follow the following guidelines:

  1. Your claim should be made within three months of the date of the last act of discrimination you suffered.
  2. Appeal for an ACAS certificate of early conciliation.
  3. Collect evidence from a medical expert of your disability.
  4. Collect evidence that will allow you to prove your case to the employment tribunal.

Want to know more?

We hope this has given you a solid introduction to what your rights are in employment law regarding disability discrimination. Want to know more? Our employment lawyers are available now! They are ready to provide professional advice and guidance tailored to your situation.

 

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