Disability, Exclusion and Employer Inaction

Discrimination at work

A growing theme in Employment Tribunal litigation is the shift away from traditional dismissal-based claims toward cases centered on exclusion, delay, and inaction.

In particular, employees returning from serious illness or managing ongoing disabilities are increasingly bringing claims where the core complaint is not what the employer did, but what it failed to do.

We look at how disengagement by an employer can give rise to liability under the Equality Act 2010, the legal framework that applies, and the practical steps employees can take to protect their position.

Where an employee is disabled within the meaning of section 6 of the Equality Act 2010, employers are subject to a number of proactive duties.

These include:

• The duty not to treat an employee unfavourably because of something arising in consequence of their disability (section 15)

• The duty to make reasonable adjustments where a provision, criterion or practice places the employee at a substantial disadvantage (sections 20–21)

• The prohibition on harassment related to disability (section 26)

• Protection from victimisation following protected acts such as raising complaints of discrimination (section 27)

These duties are not passive. They require active engagement, particularly where the employer has knowledge actual or constructive of the employee’s condition.

Employers may assume that liability arises only from overt acts such as dismissal, demotion, or disciplinary action. However, tribunals are increasingly recognising that a pattern of non-engagement can itself amount to unlawful treatment.

Examples of such conduct include, failing to respond to repeated attempts by an employee to make contact, excluding the employee from meetings, communications, or decision-making processes, removing or restricting access to systems without explanation and so on.

In isolation, these actions may appear administrative or benign. However, over the course of a period of time and when viewed cumulatively, particularly in the context of a known disability, they can amount to:

• Unfavourable treatment under

• A failure to make reasonable adjustments

• Conduct creating a hostile or degrading environment under section 26 Equality Act 2010

Importantly, intent is not required, the effect and impact on the employee is central.

One of the most common areas of dispute arises where an employee is medically fit to return to work (often with adjustments), but the employer delays or obstructs that return.

In such cases, tribunals will scrutinise whether the employer engaged meaningfully with medical evidence, whether reasonable adjustments (e.g. phased return, amended duties, reduced workload) were considered and implemented, whether delays in occupational health referral or decision-making were justified.

A failure to take these steps may amount to both a breach of the duty to make reasonable adjustments and discrimination arising from disability.

Financial Consequences and Withholding of Work

Where an employee is ready and willing to return but is prevented from doing so, this can also give rise to financial claims.

Practical Implications for Employers

Employers should be aware that inaction is not a neutral position. A failure to engage, particularly over a sustained period, may be interpreted as evidence of discriminatory treatment and a breach of statutory duties/trust and confidence

The key takeaway and often cited reason it that simple administrative delays can, over time, become legally significant.

Workplace disputes are no longer confined to clear-cut decisions such as dismissal. Increasingly, liability arises from patterns of behaviour, particularly where an employer disengages from an employee at a time of vulnerability.

Employers must take active steps to communicate, support, and facilitate a return to work. Employees, in turn, should ensure that their position is clearly recorded and that formal processes are engaged where necessary.

Silence, when prolonged and unexplained, is rarely neutral. In the context of disability, it can be unlawful.

If you would like any support in setting up absence communication and review procedures or in training managers please do not hesitate to contact us on 01983 897003.