What are your rights as an employee with a disability?
By: Philippa Harrington, On: 13 January 2021
It is illegal for your company to discriminate against you because of your disability. Whether your disability is physical or mental, permanent or temporary, any impairment that has a significant and long-term effect on your ability to carry out your regular work duties is protected under the Equality Act 2010. This covers recruitment, employment, and even dismissal or redundancy.
Your interviewer or hiring manager may ask limited questions about your health or disability in order to help make reasonable adjustments, decide if you can carry out essential parts of the work, and for their own monitoring and recording to help increase the number of people with disabilities they employ. Assessments should be based on the skills and qualifications for the job, and those with impairments should not be placed at a disadvantage.
The Equality Act 2010 covers recruitment areas such as application forms, interviews, and aptitude and proficiency tests. Reasonable adjustments include holding interviews in wheelchair-accessible locations and verbal tests instead of written ones. You do not have to disclose a disability to an employer, but you will need to specify that you are disabled when asking for adjustments. Your employer may not withdraw a job offer when they learn of your condition. In some limited circumstances, an employer can refuse to hire someone on the basis of their disability. For example, if heavy lifting is an essential part of the role, a person with back problems would not be able to fulfil the duties of the job.
The legal obligation for employers to ensure you are not discriminated against or at a disadvantage continues once you are employed. This includes the job offer and terms of employment (it is illegal, for example, to offer lower pay because of disability), promotion and training opportunities, discipline and grievances, and reasonable adjustments in order for you to carry out your work. This could include specialist equipment, flexible hours and improvements to accessibility around the workplace such as ramps.
They must also ensure that you do not suffer bullying in the workplace because of your disability. Types of discrimination in the workplace fall into three key categories:
Direct discrimination – the most “obvious” type of discrimination, this is when a person is treated less favourably because of their disability. For example, a disabled employee being excluded from a meeting because it’s in an inaccessible location or failing to provide reasonable adjustments.
Indirect discrimination – is when a process, rule or space is applied to everyone but inadvertently disadvantages a disabled person. This is illegal unless the employer is able to show that there is a good reason for the policy.
Harassment – this is when colleagues behave poorly towards a person because of their disability, such as through offensive remarks or gossiping. This can be malicious or intended as humorous but is still discrimination that your employer has a responsibility to stop. It should also be noted that this can include harassment based on perceived disability, even if they are not in fact disabled. For example, making offensive remarks that suggest someone has a mental health disability.
If you believe you are experiencing discrimination, keep a written and dated record of all incidents.
You can’t be made redundant just because you’re disabled. The redundancy process must be fair, and your disability cannot put you at greater or reduced risk during the redundancy process.
Your employer cannot make you retire or resign if you become disabled, and it could be discrimination if you are fired for disability-related absences.
What should I do if I believe I have been discriminated against?
1. Start with an informal chat
Many moments of discrimination are due to lack of knowledge or thoughtlessness, and most employers will want to resolve issues quickly and ensure you are comfortable and welcomed. Speak to your manager as soon as possible to see if anything can be done.
2. Raise a grievance
If speaking informally doesn’t work, you can raise a grievance. This is a formal complaint that your workplace should have an established procedure for, which will explain what to do. Your employer cannot treat you unfairly for raising a grievance.
3. Seek independent advice
If raising a grievance does not help or your employer continues to treat you unfairly, seek out independent advice, such as from your union or ACAS.
4. Take it to a tribunal
As a last resort, you can take a discrimination claim to a tribunal. This can be a long and stressful process, so think carefully before going ahead. There is a time limit for making a claim of three months from when the discrimination happened.