How-to guide: How to avoid disability discrimination in the workplace (UK)

Introduction

This guide provides in-house counsel, private practice lawyers and human resources professionals with guidance on avoiding disability discrimination in the workplace in England, Wales and Scotland (GB). This guide does not cover the law in Northern Ireland.

This guide covers:

1. Introduction to disability discrimination law
2. Defining key concepts
3. Understanding the duty to make reasonable adjustments
4. Avoiding discrimination arising from disability
5. How to identify and reduce the risk of disability discrimination taking place
6. Consequences of getting it wrong

This guide can be used in conjunction with How-to guides: Overview of workplace discrimination and harassment law and How to comply with the duty to make reasonable adjustments in the workplace and Quick view: Protected characteristics under the Equality Act 2010.

Employers should be aware that the Employment Rights Bill 2024, introduced on 10 October 2024, aims to significantly enhance worker protections in the UK. Key provisions include granting day-one rights for unfair dismissal, paternity, parental, and bereavement leave, changes to sick pay and flexible working rights, protections against zero-hours contracts and restrictions on the use of ‘fire and rehire’ practices. New legislation will be introduced throughout 2025 and 2026. Further information can be found at UK Parliament: Employment rights bill and Employment Rights Bill: factsheets.

Section 1 – Introduction to disability discrimination law

Disability discrimination falls under the ambit of the Equality Act 2010 (EqA 2010), which consolidated and replaced previous discrimination laws in GB.

Under the EqA 2010, it is unlawful for employers to discriminate against individuals because of a disability. The EqA 2010 specifies different types of prohibited conduct, including direct discrimination, indirect discrimination, harassment and victimisation. For further information about these types of prohibited conduct see How-to guide: Overview of workplace discrimination and harassment law.

The focus of this guide is on the following areas, which are unique to disability discrimination:

• the definition of disability (section 6 EqA 2010);
• the employer’s duty to make reasonable adjustments (section 20 EqA 2010); and
• discrimination arising from a disability (section 15 EqA 2010).

Section 2 – Defining key concepts

Before looking at the claims of a failure to make reasonable adjustments and discrimination arising from disability in more detail, it is important to understand the legal definition of disability.

2.1 The definition of disability

Section 6 of the EqA 2010 defines a person as having a disability if they have a physical or mental impairment, and that impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This definition is broken down below.

2.1.1 Physical impairment

This encompasses a wide range of conditions, including mobility issues, sensory impairments (such as blindness or deafness) and certain medical conditions.

2.1.2 Mental impairment

This includes mental health conditions such as depression or anxiety, as well as learning disabilities or cognitive impairments.

2.1.3 Substantial adverse effect

The word ‘substantial’ is critical in this context. In section 212(1) EqA 2010 ‘substantial’ is defined as more than minor or trivial. It does not have to be a severe effect, but it should be more than just a slight hindrance. The substantial effect could relate to one’s mobility, memory, ability to concentrate or learn new things, or even to carry out daily tasks such as dressing or washing.

2.1.4 Long-term effect

The EqA 2010 defines ‘long term’ as having lasted, or being likely to last, at least 12 months. However, there are specific provisions that cover the situation where an impairment ceases to have a substantial adverse effect, but is treated as continuing because that effect is likely to recur. For instance, conditions that are episodic in nature, such as rheumatoid arthritis, might satisfy this provision (see schedule 1 EqA 2010).

2.1.5 Normal day-to-day activities

These are activities that most people, not just specialised professionals or trained individuals, carry out fairly regularly. They might include eating, walking, reading, writing, having a conversation, or using public transport.

2.1.6 Exclusions

The Equality Act 2010 (Disability) Regulations 2010 specifically exclude certain conditions from being defined as disabilities. These include addictions (unless resulting from medically prescribed drugs or treatments), tattoos, body piercings, and certain personality disorders. However, the resulting effects of these conditions might still be considered disabilities.

2.1.7 Progressive conditions

A special provision exists for progressive conditions. Individuals with HIV, cancer or multiple sclerosis are covered by the EqA 2010 from the point of diagnosis, even if the condition is not currently having a substantial adverse effect on their day-to-day activities (see Schedule 1 EqA 2010).

2.2 The disability-centric claims of discrimination

If an employee, worker or other category of protected person such as a job applicant is disabled within the meaning of the EqA 2010 the employer will have various duties to ensure that they are not subject to discrimination. In addition to protecting the individual from direct and indirect discrimination, harassment and victimisation (outlined in How-to guide: Overview of workplace discrimination and harassment law), an employer will also have to ensure that it complies with its obligations to make reasonable adjustments and to ensure that the individual is not treated unfavourably because of something that arose because of their disability.

Section 3 – Understanding the duty to make reasonable adjustments

This obligation recognises that treating everyone the same might not necessarily result in equal outcomes; in some cases, differential treatment or additional measures are required to achieve fairness. Under section 20 of the EqA 2010, employers are legally obligated to make reasonable adjustments in situations where a disabled person is at a substantial disadvantage compared to non-disabled individuals.

3.1 When the duty to make adjustments arises

This duty arises in the three main scenarios set out below.

3.1.1 Provision, criterion or practice

A provision, criterion, or practice (PCP) the employer operates may put a disabled person at a substantial disadvantage. For instance, an employer might have a standard policy that all staff must work from the office. If a disabled person is at a disadvantage because of this policy, the employer may need to adjust it, possibly allowing that person to work from home.

3.1.2 Physical features of premises

If the physical layout or design of a workplace puts a disabled person at a substantial disadvantage, then alterations might be required. This could involve making structural changes such as installing ramps, widening doorways, or providing ergonomic workstation equipment.

3.1.3 Provision of auxiliary aids

Employers may need to provide extra equipment or tools to help a disabled person perform their role. These could include specialised computer software for visually impaired individuals or an induction loop for a person using a hearing aid.

3.2 Reasonable adjustments

If the PCP, physical feature or failure to provide an auxiliary aid gives rise to a substantial disadvantage then the obligation to make reasonable adjustments has been triggered. The assessment of what is reasonable is not, however, clear cut and various factors can be relevant, including the effectiveness of the adjustment, practicability and financial cost to the employer.

For more detailed information about the duty to make reasonable adjustments and practical examples, see How-to guide: How to comply with the duty to make reasonable adjustments in the workplace.

Section 4 – Avoiding discrimination arising from disability

If a disabled person is treated unfavourably because of something connected to their disability (and not the disability itself, which would be direct discrimination), this can amount to discrimination, unless the treatment can be justified.

The inclusion of section 15 in the EqA 2010 recognises that sometimes, discrimination might not be directly because of the disability itself, but rather due to factors that arise as a consequence of the disability. The archetypal claim for discrimination arising from disability is an individual with a medical condition that results in frequent absences from work, say for stress. If an employer were to dismiss, discipline or disadvantage this employee due to these absences (which arise as a consequence of the disability), this could be seen as discrimination arising from disability.

Employers have a potential defence to a claim of discrimination arising from disability, by arguing that the unfavourable treatment was a proportionate means of achieving a legitimate aim. For instance, safety could be a legitimate aim. If a person’s disability causes them to behave in a way that is dangerous to others, excluding them from an activity could be seen as a justified action.

4.1 Understanding discrimination arising from disability

Discrimination arising from disability occurs when:

• a person with a disability is treated unfavourably;
• this unfavourable treatment is because of something connected with their disability (this could be a consequence, symptom, or any other related issue); and
• the treatment cannot be objectively justified by the employer.

4.2 Differentiating between direct discrimination and discrimination arising from disability

Direct discrimination occurs when an individual is treated less favourably specifically because of their disability, compared to another individual without that disability in a similar situation. It cannot be excused by the employer under any circumstance.

Discrimination arising from disability does not centre on the disability itself but on something connected with the disability. The defining factor here is the link between the unfavourable treatment and an aspect or consequence of the disability. Moreover, this form of discrimination can potentially be justified if the employer can prove the treatment is a proportionate means of achieving a legitimate aim.

Both direct discrimination and discrimination arising from disability require the employer to know or reasonably be expected to have known about the disability. This does not mean that the employer must know that the impairment the employee has meets the statutory definition of disability (see above), rather they must know the member of staff has the impairment.

4.3 Examples of discrimination arising from disability

Some examples of discrimination arising from disability are set out below (note that many of these examples might also amount to different types of discrimination, such as failure to make reasonable adjustments).

• Absence penalties: an employee with a chronic medical condition might have frequent medical appointments or require periodic rests. If the employer penalises this employee for these absences without considering their disability-related needs, this could be discrimination arising from the disability.
• Promotion denial: an employee with a visual impairment is not considered for a promotion because the new role involves reading many documents. Instead of exploring potential adjustments or aids to help the employee, the employee is simply bypassed.
• Negative references: in Pnasiner v NHS England [2016] IRLR 170 the employee had lengthy disability related absences. The employee’s negative comments about these in a post-employment reference amounted to disability discrimination.
• Inflexible work hours: an employee with a mental health condition might struggle with conventional nine-to-five hours due to the effects of medication or the nature of their condition. If an employer refuses a slightly adjusted work schedule without justification, this might amount to discrimination.
• Training exclusion: an employee with a mobility issue is excluded from an important training session because it is held in an inaccessible location, and no efforts are made to accommodate the employee.
• Dismissal due to disability-related misunderstandings: an employee with Tourette’s syndrome, a condition that may cause involuntary verbal tics, is dismissed because of occasional outbursts without considering the nature of their condition.
• Redundancy decisions: when deciding who to make redundant, an employer selects an employee primarily because they have taken more sick days than others – without considering that the majority of these absences were disability related.
• Exclusion from social events: an employee who uses a wheelchair is consistently left out of team-building events or outings because venues are not wheelchair accessible, and no efforts are made to find suitable alternatives.
• Performance measures: an employee with dyslexia is reprimanded or penalised for making spelling errors in their work without considering reasonable adjustments or offering support tools. An employee with anxiety that was triggered by cleanliness was disciplined for not picking up used towels in a gym in Burton v Nuffield Health ET 2300147/19.
• Refusing flexibility: an employee with chronic fatigue syndrome struggles with long commutes and requests to work from home a few days a week. The employer refuses without exploring the feasibility of the request. In Bannister v Revenue and Customs ET 2500750/16 an employee’s dismissal for objecting to a desk move was held to be discrimination arising from disability, when the objection was linked to her depression.

4.4 The defence of justification

Unlike direct discrimination, discrimination arising from disability can be justified if the reason for the treatment is a proportionate means of achieving a legitimate aim.

4.4.1. Legitimate aim

Firstly, the employer must establish that there was a genuine, legitimate reason for the unfavourable treatment. ‘Legitimate aim’ could cover various reasons, but might include:

• ensuring the health and safety of all staff; or
• the need for a particular role to be performed in a specific way; or
• the efficient running of the business or service. (Note that cost alone is not enough to justify discrimination, though it can be considered as part of a wider set of reasons.)

4.4.2. Proportionate means

Even if an employer can prove a legitimate aim, they must also demonstrate that the method they used (ie, the unfavourable treatment) was proportionate to achieve that aim.

This involves a balancing act: on one side, the importance of the legitimate aim and on the other, the discriminatory effect of the action on the disabled person.

Consider whether there was a less discriminatory way to achieve the same aim? If there was a less discriminatory alternative available that could have achieved the same result, it may be challenging to argue that the means used were proportionate.

Section 5 - How to identify and reduce the risk of disability discrimination taking place

Preventing discrimination is crucial not only from a legal standpoint but also from an ethical perspective. By understanding the specific needs of staff and workers, following best practices and taking a proactive approach, organisations can create an environment where every individual has an equal opportunity to thrive.

5.1 General considerations

5.1.1. Open lines of communication

Employers should seek to foster an open workplace culture where staff feel comfortable disclosing their disabilities and discussing their specific needs. Employers should arrange regular check-ins with staff, and feedback sessions to stay updated on changing requirements. Employers should encourage an open-door policy where staff can communicate their requirements, challenges or suggestions without fear of retaliation, and should establish mechanisms for regular feedback from staff about the effectiveness of the measures in place and areas of potential concern.

5.1.2. Conduct accessibility audits

Employers should aim to:

• regularly evaluate the physical and digital work environment for potential barriers for those with disabilities;
• periodically assess and adjust workplace practices, policies and physical environments to ensure they meet the evolving needs of all staff;
• collaborate with external experts, if needed, to ensure a comprehensive assessment of the workplace; and
• engage disability consultants or organisations that can provide guidance, evaluations, and recommendations of best practices.

5.1.3. Stay updated on legislation and guidelines

Employers should ensure that they regularly review legal and industry guidelines to ensure the organisation is aware of its obligations and best practices.

5.1.4 Provide comprehensive staff training

Many instances of discrimination arise from ignorance or misunderstandings. Employers should regularly train managers and staff about disability awareness, the legal rights of those with disabilities, and the importance of inclusivity. Including real-life scenarios and role-playing exercises can ensure practical understanding.

5.1.5 Clear policies and guidelines

Employers should ensure that they have clear policies that prohibit discrimination and promote equal opportunities for all staff, in order to minimise ambiguity and subjectivity. The policies should be clearly communicated to all staff, and there should be robust enforcement measures in place for staff who fail to adhere to the policies.

5.1.6. Employee surveys and feedback

Anonymous surveys can help employers to gather insights on areas that might require adjustments, and ensuring that staff feel secure in providing honest feedback.

5.2. The importance of being proactive

A proactive stance on avoiding discrimination and making reasonable adjustments goes beyond compliance and signals a genuine commitment to inclusivity. Employers can establish proactivity through the following steps.

5.2.1. Anticipate future needs

Employers should avoid relying solely on reacting to immediate challenges, but should also look ahead and plan for potential future requirements.

5.2.2. Foster an inclusive culture

Cultivating a workplace environment that values diversity and inclusivity can make it easier to anticipate and implement necessary adjustments. Involving those with disabilities in solutions is also important, as the individuals facing challenges often have the best insights into effective solutions.

5.2.3. Invest in accessible technology

With the increasing reliance on digital tools, investment in software and platforms that are inherently accessible can help employers to cater to a wider range of needs.

Section 6 – Consequences of getting it wrong

Discriminating against disabled employees or workers with disabilities has a wide range of consequences, affecting not just the individual concerned but the employer and wider society as well. A detailed breakdown of these consequences is set out below.

6.1. Legal consequences

6.1.1 Employment tribunal claims

Employees or workers with disabilities can bring claims to employment tribunals for discrimination arising from disability or for failure to make reasonable adjustments, as well as the other types of disability discrimination. If the tribunal finds in favour of the employee, the employer may be ordered to pay compensation.

Compensation

There is no cap on the compensation that can be awarded for successful disability discrimination claims in GB, making the potential financial risk for employers significant.

Reputational damage

Legal proceedings are often public, and employment tribunal judgments are published online, meaning that an employer found to have discriminated may suffer reputational damage. This can affect the employer’s standing in the marketplace and its ability to attract top talent.

Recommendations

Employment tribunals can make recommendations that the employer must take specific actions to reduce the adverse effect of any discrimination.

6.2. Other consequences

There are a number of other consequences for employers engaging in discriminatory behaviour.

6.2.1 Moral integrity

Discrimination goes against the core principles of fairness, equality and justice. By engaging in discriminatory practices, organisations compromise their moral and ethical integrity.

6.2.2 Loss of trust

Those with disabilities expect to be treated fairly and with respect. Discriminatory practices can erode trust between staff and management, leading to a demotivated and disengaged workforce.

Witnessing or experiencing discrimination can lower morale and reduce engagement among staff, leading to higher turnover rates, increased absenteeism and lower overall productivity.

6.2.3 Reduced diversity and inclusion

Discriminating against disabled staff can lead to a less diverse workforce, depriving the organisation of the many benefits that diversity brings, including a range of perspectives, experiences and skills.

6.2.4 Organisational culture

Discrimination can foster a toxic work culture, where biases, prejudices and unfair treatment become the norm. Such an environment can be detrimental to productivity, innovation and collaboration.

6.2.5 Talent attraction and retention

Top talents are more likely to be attracted to and stay with organisations that are known for their inclusive and fair practices. Discrimination can make it challenging to attract and retain the best staff.

Additional resources

Related Lexology Pro content

How-to guides:

Overview of employment law
How to carry out a fair termination of employment
Overview of workplace discrimination and harassment law
How to comply with the duty to make reasonable adjustments in the workplace
How to avoid religion or belief discrimination in the workplace
How to comply with the employers’ duty to take reasonable steps to prevent sexual harassment in the workplace

Checklists:

Identifying, reviewing and updating the terms of an employment contract
Drafting a staff handbook
Employment law considerations during a recruitment process
Determining the difference between an employee, a worker and an independent contractor
Carrying out a disciplinary process
Managing multi-jurisdictional redundancies in Europe
Employment, immigration and tax considerations when dealing with cross-border working
Carrying out a capability process
Conducting a redundancy exercise
An employer’s guide to fire and rehire
Carrying out a TUPE transfer

Quick views:

Protected characteristics under the Equality Act 2010
Key players in collective labour law – UK, Germany, Italy, France and the Netherlands
Collective redundancy consultation
Understanding and navigating gender-critical beliefs in the workplace

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