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Guide to duty of care to disabled employees

Maria Chadwick, Partner Employment and Discrimination Team - Stephensons Solicitors LLP

Over recent months, a number of Government Departments and reputable organisations have been publicly scrutinised due to investigations of their alleged failings in their treatment of disabled employees. Such failings have not only been brought to light through Employees coming forward in the media but through consideration of the numbers of cases that have been reportedly brought before the Employment Tribunals in recent years.

The increase in media reports of alleged discrimination, particularly in the workplace, has highlighted what has been and continues to be a real issue for employees and employers. The fostering of a working environment which effectively allows individuals to be subjected to unfavourable treatment because of their disabilities is extremely dangerous and such attitudes can quickly spread into working practices which will undoubtedly also affect customers and service users.

Claims of Discrimination in the Employment Tribunal
Claims of discrimination brought in the course of employment are issued and determined in the Employment Tribunals. The Equality Act 2010 provides protection for employees and workers against disability discrimination.

What is Disability Discrimination?
This is the unequal treatment of an individual or group of individuals on the grounds of their disability.

“Disability” is broadly defined in the Equality Act 2010 as a physical or mental impairment that has a substantial and long-term adverse effect upon the individuals’ ability to carry out normal day-to-day activities.

Types of Discrimination Claims
Disabled employees, if subjected to unfavourable treatment by their employers or colleagues, may have cause to bring any of the following number of claims of discrimination:

Direct Discrimination occurs when an employer treats a disabled employee less favourably than they treat or would treat other non-disabled employees.

Conversely, Indirect Discrimination occurs when an employer applies a provision, criterion or practice (“PCP”) that is applied to all employees equally but puts a disabled employee at a particular disadvantage when compared to their non-disabled co-workers.

However, employers may have a defence to this type of claim if it can objectively justify that the actions were/are a proportionate (i.e. there is no reasonable alternative) way of achieving a legitimate aim (for example, genuine health and safety reasons).

Discrimination Arising from Disability can be proven when an employer treats an employee unfavourably because of something/circumstances which arise as a result of the employee’s disability.

A dangerous potential claim for employers to be aware of is that of Failure to Make Reasonable Adjustments. The duty here is to take such steps that are reasonable to have to take to avoid an individual being subjected to a substantial disadvantage due to their disability, in comparison to others who are not disabled. Failure to comply with this duty gives rise to a claim.

Further, claims of disability harassment are generally closely linked to claims of direct discrimination. Harassment is broadly defined as occurring when an employer engages in unwanted conduct relating to their employees’ disability, and the conduct has the purpose or effect of violating that employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Finally, employers can be liable for victimisation claims where they subject their employee to a detriment because they have done or are thought to have done what is referred to as a protected act. This can include the submission of a complaint of discrimination.

What are Employers liable for?
It must be at the forefront of an employer’s mind that they will be held liable in the Employment Tribunal for discriminatory actions of their employees. This is whether it is in the capacity of a colleague/manager or in their dealings with customers and service users.

Claims of Discrimination in the Civil Courts
Individuals are also protected by the Act in their capacity as Service Users. They may bring similar claims of disability discrimination against a Service Provider, an Organisation undertaking a Public Function, a club or an Association, in the Civil Courts.

It is therefore imperative that all businesses and organisations take proactive steps to ensure that a discriminatory culture is not adopted by their employees at any level.

How to Prevent Discrimination Claims

  • Know your obligations to Employees, Workers and Service Users under the Equality Act 2010.
  • Ensure that all Employees and Workers know your obligations under the Equality Act 2010. This can be done through ensuring that all Employees, Workers and Contractors are provided with specifically tailored Equality and Diversity Training at the start of their employment/contract and on a regular refresher basis.
  • Ensure that you have formal, Equality Act 2010 compliant Policies to refer to and ensure flexibility in the implementation of the same when dealing with those who hold a Protected Characteristic under the Act.
  • Engage Discrimination and Employment Law specialists when drafting Policies and when notified of claims and/or complaints of Discrimination

 Disability discrimination claims are becoming a consistent feature of the matters dealt with by employers and organisations generally. This is a challenging yet key matter to be addressed which must start with the implementation of adequate policies which are continuously scrutinised to ensure that individuals are not subjected to detrimental treatment as a result of their health conditions and claims are avoided.



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