It is hard to believe that it was only in 1995 that the Disability Discrimination Act 1995 was passed, making it unlawful to discriminate against someone because of their disability. I was reminded of this in an article published by the BBC this weekend, which featured photos of the mass demonstrations that took place outside parliament in the early 1990’s, protesting against the unfair treatment and lack of protection given to people with disabilities in society.
Although the legislation was considered landmark at the time, change was still incremental. It wasn’t until 1996 that employers were required to make reasonable adjustments to workplaces and working conditions to accommodate disabled people. Even then, this duty did not apply to businesses employing fewer than 15 people.
The exemption from the duty to make reasonable adjustments for small businesses was eventually removed in 2004. In that same year, the legal requirement to make reasonable adjustments to make buildings accessible to disabled people came into effect.
A year later, in 2005, people with progressive conditions such as HIV, cancer, multiple sclerosis and some visual impairments became protected from disability discrimination from the point of diagnosis.
In 2010, disability discrimination legislation was rolled into the Equality Act 2010. This Act brought new protections for disabled people, including, for the first time, the right not to be harassed because of a disability. Given that harassment on the grounds of other protected characteristics (sex, race and sexual orientation to name a few) was already outlawed and had been for some years, this was a change that was long overdue. I recall acting for a client in the early 2000’s who had been harassed at work because they used a wheelchair (think back to the TV series “The Office” and character David Brent’s treatment of one of his employees who was disabled and you get an idea of what my client had to put up with) and feeling incredibly frustrated that the law didn’t specifically prohibit harassment because of someone’s disability.
The Equality Act 2010 also made it unlawful to discriminate against someone because of a past disability, because of their association with a disabled person or because of the perception that someone is disabled.
In 2020, the law is quite different to how it was in 1995 and provides a comprehensive framework of protection in employment for those with disabilities. Today, it is unlawful for an employer to:
- Discriminate directly by treating a job applicant or employee less favourably than others because of disability. However, positive discrimination in favour of a disabled job applicant or employee is allowed.
- Discriminate by treating a job applicant or employee unfavourably because of something arising in consequence of disability without objective justification.
- Discriminate indirectly by applying a provision, criterion or practice that disadvantages job applicants or employees with a shared disability without objective justification (“Indirect discrimination”).
- Fail to comply with its duty to make reasonable adjustments where a disabled job applicant or employee is placed at a substantial disadvantage.
- Subject a job applicant or employee to harassment related to disability.
- Victimise a job applicant or employee because they have made or intend to make a disability discrimination complaint under the Equality Act 2010, or because they have done or intend to do other things in connection with the Act.
- Ask job applicants pre-employment health questions other than for a prescribed reason.
That is not to say, however, that the law is perfect. The sheer volume of case law that we have in this area shows that it is still developing and grappling with ever more complex legal questions around disability discrimination laws. Disability support groups also highlight that, despite the legal protections afforded to those with disabilities, only half of disabled people are in employment compared with four out of five non-disabled people. Encouraging, however, is the fact that this figure is increasing and that, in my experience, most employers are well informed about and readily complying with their obligations and responsibilities towards disabled job applicants and employees in the workplace.