Disability Discrimination

Disability is one of the nine protected characteristics outlined in the Equality Act 2010 which can form the basis of a discrimination claim in the employment tribunal.

As with other protected characteristics (such as sex and race), an employee may make a claim of direct or indirect discrimination on the ground of their disability. The Equality Act also contains provisions concerning disability harassment and victimisation.

However, there are two further forms of discrimination that are unique to the protected characteristic of disability. These are ‘discrimination arising from disability’ and a failure to comply with the duty to make ‘reasonable adjustments’.

The definition of disability

Disability discrimination will not take place, and the duty to make reasonable adjustments will not arise, unless an employee has a disability within the meaning of the Equality Act 2010 definition. The definition is technical and does not necessarily correspond with common perceptions of disability.

For the purposes of the Equality Act 2010, a disability is a physical or mental impairment which has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities. The effect must have lasted for 12 months or be likely to last for 12 months.

The duty to make reasonable adjustments

A ‘reasonable adjustment’ is a term used to describe any change made to the working environment or working practices to accommodate or assist a disabled person.

Under the Equality Act 2010, ‘reasonable adjustments’ may be required where premises, working arrangements or the lack of auxiliary aids put a disabled person at a substantial disadvantage compared to others. If an employer fails to make a reasonable adjustment for a disabled employee, the employee may bring a claim of disability discrimination.

Common reasonable adjustments include operational changes such as altering an employee’s duties or working hours or policy changes, such as extending sickness absence thresholds to give a disabled employee more leeway before an absence warning is triggered.

Ultimately, it will be a decision for an employment tribunal whether a particular adjustment is ‘reasonable’. This is a fact-sensitive question. The cost of the adjustment, in the context of the employer’s resources, is relevant, but cannot be the only factor. An employment tribunal will also consider the practicality of the adjustment, and the extent to which the adjustment would actually have worked to ameliorate the disadvantage suffered.

While it is good practice for an employer to consult a disabled employee about possible adjustments, there is no legal onus on the employee to suggest them. The duty to consider making reasonable adjustments falls on the employer, which may need to be proactive and take the initiative.