Member Article

In our eighth article in the series focusing on the risk of discrimination in the workplace, we consider the protected characteristic of disability, the common issues that arise and what employers can do to avoid discrimination claims.

What is disability discrimination?

Disability discrimination occurs where a job applicant or employee is treated less favourably because of their disability. It can also occur when an employer implements a particular provision, criterion or practice which puts a disabled job applicant or employee at a disadvantage compared to other employees and such provision, criterion or practice cannot be objectively justified as being a proportionate means of achieving a legitimate aim. As with other protected characteristics, discrimination can also occur where a job applicant or employee is subjected to harassment related to their disability or is victimised because they have made or intend to make a disability discrimination complaint.

The protected characteristic of disability is, however, different to other protected characteristics. For instance, discrimination can arise where an employer treats a job applicant or employee unfavourably because of something arising in consequence of their disability. There is also a duty on employers to make reasonable adjustments where a disabled job applicant or employee is placed at a substantial disadvantage. However, it is not considered discrimination if an employer treats a disabled person more favourably than it treats a non-disabled person.

What the research says

Pearn Kandola’s Disability At Work (2022) research showed that two in five disabled employees are not receiving the reasonable adjustments they need in the workplace. This figure increased to 59% amongst those who had not shared their disability with their employer.

Binna Kandola, Senior Partner and Co-Founder commented that “the research showed a need for businesses to raise awareness of disability, of different conditions, and critically, of the practical adjustments that can be offered to colleagues with disabilities. By standardising reasonable adjustments as part of your processes – whether during recruitment, onboarding or day to day management – and offering these to anyone who needs them, we make it easier for people to get the support they need. This makes it easier for disabled colleagues to request what they need, without requiring them to share their condition if they don’t feel comfortable to do so.”

He added that “it’s important to remember that not all disabilities are visible, and some employees may not consider themselves to be disabled. For example, some neurodivergent individuals self-identify as disabled and some do not – though neurodivergent individuals who share their neurodivergence with their employer would be covered under disability as a protected characteristic in the workplace. Our recent Neurodiversity at Work (2024) research explored the experiences of neurodivergent individuals in the workplace and found that many adjustments respondents mentioned would in fact benefit all employees. This further supports the suggestion that standardising these processes and opening them up to all would in fact support all employees, helping disabled colleagues feel included and accepted as part of an inclusive working environment.”

Disability and technology

Digital technology is often seen as a powerful enabler for individuals with disabilities, enhancing accessibility and allowing easier participation in everyday work life. However, many technologies still pose challenges for disabled users and may not be as inclusive as first thought. For instance, some technologies may not fully integrate with existing assistive devices, or they may not be designed to accommodate various disabilities, so helping some employees but not all.

Employers should thoroughly evaluate digital technologies before implementing them within the business, to ensure they genuinely enhance inclusivity rather than inadvertently marginalising certain groups.

Common issues faced by employers

Technology aside, employers face many other challenges when it comes to disability discrimination in the workplace, the most common of which are discussed below:

• Lack of Awareness and Training: There can be a lack of understanding as to what constitutes disability discrimination or how to accommodate disabled employees effectively, particularly where an individual’s disability is not self-evident and may only impact in particular situations. This can lead to unintentional discrimination or failure to provide necessary adjustments. Regular training can help to combat this, enabling managers to feel equipped to support staff who have disabilities and comfortable handling requests for reasonable adjustments at work. The implementation of internal networks can also raise awareness amongst the workforce to help employees understand the nature of different disabilities, both visible and invisible.
• Inadequate Policies and Procedures: Some organisations may have outdated or inadequate policies resulting in inconsistent practices and failure to comply with legal requirements. Employers should regularly review internal policies and employee handbooks to ensure they reflect current best practice and look to implement changes if needed (providing such policies are non-contractual).
• Communication Barriers: Miscommunication or lack of communication about an employee’s needs can lead to misunderstandings and inadequate support. Employees might also be reluctant to disclose their disabilities due to fear of stigma or discrimination. Employers should promote an open culture and an environment where employees feel safe to voice their needs. As mentioned above, internal networks can be a powerful resource, to allow individuals the platform where any concerns can be expressed. Employers could even appoint a disability champion to advocate for those experiencing disabilities and promote equality. For example, they can encourage appropriate language to use in the workplace so as not to cause offense.
• Physical and Technological Barriers: A workplace that is not physically accessible can hinder the productivity and inclusion of disabled employees. Employers should regularly review their office space to ensure all employees can access the facilities easily. Ramps, wider gangways and accessible toilets are all options to consider helping those less able to access the workplace. Thought should also be given to the job role itself and whether software-based solutions may aid employees to complete their duties. With most organisations keen to take advantage of tech-based solutions to improve productivity, care should be taken that these solutions do not inadvertently exclude those with disabilities. If in doubt, consult with employees and allow them the opportunity to put forward suggestions.
• Cultural and Attitudinal Barriers: Negative attitudes or stereotypes about disability can foster a hostile work environment, discouraging disabled individuals from seeking employment or requesting necessary accommodations. This can result in individuals feeling excluded and marginalised. To combat this, it is crucial to provide employees with the relevant training to dismantle stereotypes and promote inclusivity. Such training helps create a supportive and welcoming workplace for everyone. Utilising tools such as the Disability Confident employer scheme can also help employers to make the most of the talents disabled people can bring to the workplace.

Addressing disability discrimination in the workplace is a legal obligation and requires a proactive approach. By fostering an inclusive environment, free from stigma, employers can unlock the full potential of all employees, leading to a more diverse, innovative, and productive workforce. It requires ongoing commitment to training, policy review and development, the thoughtful implementation of accessible technologies and ensuring communication channels remain open. Ultimately, creating a workplace where everyone feels valued and supported benefits both the individual employees and the organisation as a whole.

 

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