The number of disability discrimination claims brought before employment tribunals rose to 6,550 in 2018, a 37% increase on the previous year, according to Ministry of Justice data.
The rise in claims has been attributed to an increase in stress and mental health-related illnesses.
A greater awareness of such issues means that employees are now more likely to understand that their mental ill-health could be classed as a disability under the Equality Act, and therefore are eligible to raise a claim.
In addition, the abolition of employment tribunal fees in 2017 has led to a huge increase in claims overall.
What does the law say?
Under the Equality Act 2010 a person is disabled if they have a physical or mental impairment which has a substantially adverse and long-term effect on their ability to carry out normal day-to-day activities.
In the workplace, such activities are taken to include things like using a telephone or computer, interacting with colleagues, following instructions, driving, and carrying everyday objects.
The Equality Act 2010 provides disabled people with protection from discrimination in a range of areas, including employment.
The Act covers both direct and indirect discrimination. Direct discrimination involves treating employees less favourably because of disability, their association with someone with a disability (e.g. a member of their family) or a perceived disability (i.e. the belief that an employee is disabled).
Indirect discrimination occurs when a provision, criterion or practice in the workplace puts disabled employees at a disadvantage, e.g. a requirement to climb a flight of stairs.
The Act includes a provision which makes it unlawful for employers to ask anyone about a candidate’s health or disability before offering them work. Employers are limited to asking health-related questions which help them to:
Decide whether reasonable adjustments are needed to the selection process for the individual
Decide whether the applicant can carry out an ‘intrinsic’ function of the job
Monitor diversity amongst those applying for jobs
Take positive action to assist disabled people
Confirm that a candidate has a disability which is required for the job in question
To stay within the law, promote equality and prevent discrimination, an employer should have a policy in place so all employees know what is acceptable and expected of them as individuals and as part of the organisation. It should be made clear that not following these policies may trigger disciplinary and grievance procedures.
Existing policies should also be regularly reviewed to ensure they are not discriminatory. Policies that were not discriminatory when introduced may since have become unacceptable.
Where a provision, criterion or practice puts a disabled employee at a substantial disadvantage compared with a non-disabled employee, the employer must take all reasonable steps to eliminate the disadvantage. This could include re-deployment to a different type of work if necessary.
Reasonable adjustments should be considered when the employee requests them, or when the employer becomes aware of a disadvantage due to disability. As mentioned above, they can apply both during the course of employment and during recruitment.
To back up the policies, training may be a very useful way of ensuring everyone within the organisation knows the standards required. This will also help raise awareness that mental health and non-visible disabilities hold equal status to physical disabilities.