Disability discrimination

Under the Equality Act 2010 it is unlawful for employers to discriminate against disabled people, and this covers:

• Application forms;
• Interview arrangements;
• Job offers;
• Aptitude or proficiency tests;
• Terms of employment
• Promotion and training opportunities;
• Work related benefits e.g. access to sports facilities;
• Dismissal or redundancy;
• Discipline or grievances.

Under the Equality Act 2010 an employer has a duty:

• Not to treat a disabled person less favourably because heshe is disabled
• Not to directly discriminate against a disabled person, unless there is a fair and balanced reason for doing so. Direct discrimination includes discrimination because they associate with a disabled person (e.g. their partner is disabled) or because they are  rightly or wrongly perceived as being disabled.
• Not to indirectly discriminate against a disabled person.
• Not to harass a disabled person or victimise anyone
• Make reasonable adjustments in the workplace e.g. making access easier, adjusting working hours, providing special equipment or adapting existing equipment so that a disabled worker is not disadvantaged.

Recruiting new employees

Advertisements or applications forms must not discriminate against disabled candidates or ask for details of disabilities or health conditions, unless this can be justified.

Under the Equality Act 2010 questions relating to a candidate’s health or disability are limited.  These limits apply up to the point where a job offer is made, or the applicant is placed in a pool or successful candidates who may be offered a job.    A potential employer can make enquires at that stage:

• To help the recruiter assess whether reasonable adjustments are needed to allow the candidate to take part in an assessment;
• To help decide if the candidate needs reasonable adjustments for the selection process e.g. being given more time to take a test;
• If the recruiter wants to increase the number of disabled people they employ.  Positive discrimination is allowed;
• To help monitor diversity among candidates applying for their jobs – many employers have an “equal opportunities” policy;
• Because being disabled s a requirement of the job;
• For national security checks.

Once a disabled person has been offered a job, which may depend on the candidate meeting a certain health standard, an employer can make other enquiries about health and disability to decide whether reasonable adjustments would enable the candidate to do the job.   The information disclosed must be honest and the employer has an obligation not to use the information to discriminate against the candidate because of hisher disability.

Consequences of unlawful discrimination

• The candidate or employer can bring an Employment Tribunal claim within 3 months of the discriminatory incident. The Employment Tribunal can either recommend the employer should take certain action e.g. make an offer of employment or change its policy or order the employer to pay compensation;
• The Equality and Human rights Commission can carry out an investigation or take action against the employer.

Record Keeping

Employers should always ensure that a proper written record is kept of applicants and job interviews, and be able to justify a decision either not to give an interview or not to make a job offer.

In the workplace, ensure that disabled people are treated equally and fairly.   It is an employer’s duty to make reasonable adjustments if they are aware (or should be aware) that an employee is disabled.   That employee’s personnel record should record details of any discussion about this, and any requests for, or offers of, any kind of assistance should be properly documented. Likewise, any complaints of discriminatory behaviour or bullying should be recorded and properly dealt with.  This will assist with any defence against an unlawful discrimination claim – and remember the unsuccessful candidate or aggrieved disabled employee has 3 months in which to bring a claim.

If you want to discuss any employment issues please contact Janet Long by email at j.long@pj-h.co.uk

The contents of this article are intended for general information only.  It is not a substitute for legal advice, and shall not be deemed to be or constitute legal advice.  We therefore cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.  We will, however, be pleased to advise you on the specific facts of your case.