This note is intended as a brief introduction and overview of the protection afforded to disabled workers in employment. Other useful guides are available at
What is a disability?
Disability is one of the protected characteristics set out in the Equality Act 2010 which affords, amongst other things, protection for disabled workers.
The Act says that a person has a disability if they have a physical or mental impairment which has a long term and substantial adverse effect on their ability to carry out normal day to day activities.
Direct discrimination occurs when a person treats another less favourably than they treat or would treat others because of their disability. To decide whether an employer has treated a worker less favourably, a comparison must be made with how they would have treated other workers in similar circumstances. If the employer’s treatment of the disabled worker puts them at a clear disadvantage compared with other workers, then it is more likely that the treatment will be less favourable: for example, where a job applicant is refused a job.
The comparator for direct disability discrimination will be a person who does not have the disabled person’s impairment, but who has the same abilities or skills as the disabled person.
Indirect discrimination may occur where an employer applies an apparently neutral provision, criterion or practise which puts disabled workers at a particular disadvantage. Where the employer applies a provision, criterion, or practise, and they can show that it is a “proportionate means of achieving a legitimate aim” that will not amount to examination. This is known as the “objective justification” test. So, if the employer is applying a provision to ensure a safe workplace then it will not be discriminatory.
Discrimination arising from a disability
The Act also prevents discrimination arising from a disability. Treatment of a disabled person amounts to discrimination where:
Employers can often prevent unfavourable treatment, which would amount to discrimination arising from disability, by taking prompt action to identify and implement reasonable adjustments. The duty to make reasonable adjustments is a cornerstone of the Act and requires employers to take positive steps to ensure that disabled people can access and progress in employment. This goes beyond simply avoiding treating disabled workers, job applicants and potential job applicants unfavourably, and means taking additional steps to which non-disabled workers and applicants are not entitled.
An employer cannot ask questions about disabilities pre interview or at interview, but once an offer has been made then they are entitled to ask the worker to fill in a health questionnaire to ascertain whether or not they have a disability.
If you need help with an employment matter that relates to a disability within the workplace please contact our employment team for help and advice on 0114 2256666 or at firstname.lastname@example.org