Protections for Disabled Staff in the Workplace

In recent news, Mr Daniel Jeffrey from Basildon claimed that a manager from Basildon Council, whose buildings he cleaned, purposely failed his inspections simply because he has just one arm. He alleges that this manager started calling him “bandit” because of his amputated arm and that other colleagues followed suit. Most people whether disabled or not, would find such a term offensive – and Mr Jeffrey did not view it as acceptable language.

An official letter was sent from Basildon council to Pinnacle (Mr Jeffery’s employer) asking for him to be removed from the contract. Pinnacle moved Mr Jeffery away from the Basildon contract and placed him in a London based role. Mr Jeffrey has raised his story in the press and Basildon Council are investigating these serious allegations.

Whilst these allegations are at the extreme end, we wanted to take this opportunity to remind you of the rights and protections that are in place for employees who do have a disability.

Bear with us, we are very aware that we may be stating the obvious below. Unfortunately, we are equally aware that not everyone will know what the protections are and / or what that means for them.

Firstly, what amounts to a disability?

It is important to note that there is a legal test for what amounts to a disability – however some people use the term “disability” in a wider or looser sense. We will be focussing on the stricter, legal sense in this piece.

Section 6 of the Equality Act 2010 defines disability as a “…physical or mental impairment…” whereby “…the impairment has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities.” This means that any mental or physical impairment that negatively affects a person’s day to day life can amount to a disability. Disabilities can be “visible”, such as having an amputated arm like Mr Jeffrey, but also “invisible” where the person has a condition (eg Diabetes or Irritable Bowel Syndrome “IBS”)  which may not always present themselves in an obviously physical way. Other examples of invisible disabilities are depression, anxiety, dyslexia, dyspraxia and Autism.

So, what are the protections for disabled staff?

Reasonable Adjustments – depending on the individual’s condition, there may be reasonable adjustments that they will require their workplace to make, in order to ensure that they can perform their role to the best of their ability. Section 20 of the Equality Act 2010 places the duty on employers to make those reasonable adjustments for disabled staff.

The key word here is “reasonable” because it needs to be something that can and will reasonably assist the employee but also something that can reasonably be controlled or done by the employer. For example, this might include allowing additional breaks to a person that suffers from IBS in case they need to use the loo more often, or providing different office equipment to individuals with Dyslexia or Dyspraxia. It could even be as simple as providing a different chair and / or office desk to a person with chronic back issues.

As with the definition of disability, there is no one size fits all for the adjustments that can or should be made and so it’s something to be discussed between the employer and the employee directly to see what is needed and what can be done. One point to consider is that sometimes the employee is not overly certain on what might be of assistance to them, so an Employer should always consider whether expert input (eg from an occupational health practitioner) would help.

No discrimination – it is an obvious one but a person cannot be treated any less favourably because of their disability (Sections 13 and 15 of the Equality Act 2010). This means that just because a person is disabled, it does not mean that they should be passed up for promotions or receive a lower salary increase than their counterparts. Of course, it can be the case that a person with a disability simply does not meet the same criteria in terms of their performance, for example, to obtain that higher salary increase, but their disability should have no sway in this decision.

No harassment – this one is quite similar to the no discrimination rule, but Section 26 of the Equality Act 2010 adds another layer in that a person cannot be bullied or harassed because of their disability. This means, no ‘banter’ style comments about their disability (like the alleged “bandit” comments in Mr Jeffrey’s situation), or playing particularly cruel or inappropriate pranks on  colleagues with a disability.

No Victimisation – this might seem similar to the protections for disabled staff we have already mentioned but actually Section 27 of the Equality Act 2010 is quite different. If a person does indeed face any type of discrimination or does not receive the reasonable adjustments that they should, and they raise this by way of an informal complaint or even a formal grievance, they cannot be treated less favourably because they have attempted to stand up for themselves.

How do we make sure that those rights are implemented?

We appreciate that these are difficult situations which can be embarrassing and awkward. However, the rights of individuals are strong here and there are mechanisms in place for those rights to be enforced.

If you are the person with a disability, try not to be shy or embarrassed – an open and frank conversation is usually the best way forward in these situations. If you are struggling to find a way to open up such a conversation, it could be a good idea to speak to a relevant charity or supportive colleague/friend to see if they can help get things started. This will hopefully make you feel comfortable enough to tell your employer about any disabilities and what assistance you might need from them, if any.

If you are an employer, try to create an environment where staff have the support and channels to raise matters like these. If an employer broadcasts a message to all staff that it wants to encourage a diverse and inclusive workplace, then that can encourage colleagues with disabilities to come forward.  Employers should be keen to embrace the conversations that may follow when someone declares that they have a disability and fully explore how you might be able to assist them. They might not need anything at that current moment which is absolutely fine, but then something might change and they could need something in future, so be flexible to that change. Also, make sure that the person is not disadvantaged in any way at work because of their disability, by being mistreated in any way or by missing out on opportunities.

Lastly, we always recommend appropriate diversity and inclusion training for employers. This makes sure that you are providing employees with the tools and knowledge to look after each other, protected characteristics or not (because the Equality Act 2010 covers more than disabilities) and ensures that your employees sees that you are the type of employer that is open and ready for this.

While this article is meant for informational purposes only and should not be taken as direct legal advice, should you wish to discuss protections for disabled staff or you need further advice then please do not hesitate to contact us and our expert team will gladly explore with you how we can support and assist.

Inbar Rabinovitz is an Associate Solicitor working in our Employment Team and is based in our London Bridge Office. Alongside her background in various areas of law, Inbar has been driven towards Employment Law through her passion for fairness and equality in the workplace.