Back to basics: Disability discrimination in the workplace

Unless you’ve been walking around with your eyes and ears closed to the world, you can’t have failed to notice Mencap’s #HereIAm campaign, which recently entered its third year. And this is exactly what the UK’s leading charity for learning disabilities is trying to confront – the lack of acknowledgement of those with disabilities; here I am, see me, hear me.

So let’s take a closer look at disability discrimination in the workplace.

How is a disability defined under the Equality Act?

Under the Equality Act 2010, disability is a protected characteristic and defined as “a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.”

“Substantial” means the effect of the disability is not minor or trivial, rather significantly affects a person’s ability to carry out routine daily tasks such as getting dressed.

“Long-term” means the effects of the condition affect (or are likely to affect) the person for 12 months or more. There are some conditions (such as cancer, multiple schlorisis, HIV), however, where the person is identified as having a disability from the moment of diagnosis.

What forms does disability discrimination take in the workplace?

The Equality Act protects employees from discrimination during every stage of employment from recruitment, pay and training to promotion, benefits, retirement, redundancy and dismissal.

The Act also covers various forms of discrimination:

Direct discrimination – when an employee is treated unfairly due to their known disability.

Discrimination by perception – when an employee is treated unfairly because they are perceived to have a disability (regardless of whether or not they actually have that disability).

Discrimination by association – when an employee is treated unfairly because they are connected to someone with a disability, for example those who are caring for a child or parent.

Indirect discrimination – this relates to a change to or introduction of policies and procedures that unfairly disadvantage an employee with a disability.

Harassment – when an employee with a disability is subjected to unwanted and inappropriate behaviour that causes distress, humiliation and offense.

Is obesity covered by the Equality Act?

Obesity is not considered a disability under the Equality Act. However, obesity may lead to conditions such as diabetes, physical impairment such as joint pain, and mental illness such as depression. These conditions can have a substantial and long-term effect on a person’s life; therefore, it is the resulting conditions of obesity rather than obesity itself that means that person is protected under the Equality Act. An employee should also not be subjected to harassment or bullying because of their weight.

How do we improve the workplace for disabled employees?

Mencap’s #HereIAm campaign identifies “there are 1.4 million people in the UK with a learning disability”, yet “just 6% of people with a learning disability known to social services are in paid employment”.

We need to ensure our workplaces offer a supportive and inclusive environment for disabled employees.

Employers have a duty to make reasonable adjustments to ensure disabled employee can carry out their role – particularly if the current place, practice or procedure of an organisation unfairly disadvantages an employee with a disability. It is important to note here that employers who do not adhere to their duty to provide reasonable adjustments risk discriminating against disabled employees.

Reasonable adjustments may include allocated parking spaces closer to the office building, a desk with adjustable height, allowing for regular breaks, offering flexible working or providing an employee with a mentor.

So how do we ensure we provide this supportive environment where reasonable adjustments can be made? By opening up the conversation and asking disabled employees how they can be supported to help them fulfil their role – asking, rather than assuming, or worse, box ticking!

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