Short version of equal opportunities policy relating to disability
When to use this model disability policy
Use this model policy in a staff handbook to set out the organisation's commitment to providing equality of opportunity for disabled people.
[Name of organisation] is committed to equal opportunities for all employees regardless of whether or not they have a disability.
It is recognised that ensuring equal opportunities for disabled people may involve adjustments being made to the working environment or other employment arrangements. These adjustments will be made wherever reasonable and within a reasonable time frame.
The Equality Act 2010 prohibits discrimination because of a number of protected characteristics, one of which is disability. Both direct and indirect disability discrimination are unlawful, as is discrimination arising from a disability, discrimination based on association or perception, harassment and victimisation. A failure to make reasonable adjustments also amounts to disability discrimination.
Disciplinary action will be taken against any employee who is found to have committed an act of disability discrimination. Any serious breaches of this policy or harassment of a disabled person for a reason related to his/her disability will be treated as gross misconduct.
How to use this document
This is an example document and should be adapted to suit your circumstances.
Law relating to this document
Leading statutory authority
Data Protection Act 1998
Equality Act 2010
Equality Act 2010 (Disability) Regulations 2010 (SI 2010/2128)
Equality Act 2010: guidance on matters to be taken into account in determining questions relating to the definition of disability
The Equality Act 2010 protects individuals against discrimination because of a number of specified protected characteristics, one of which is disability.
Disability is described by the Equality Act 2010 as a physical or mental impairment that has a substantial and long-term adverse effect on an individual's ability to carry out normal day-to-day activities. The Act does not contain a list of capacities that the disability has to have an effect on, such as eyesight, memory or manual dexterity. This should make it easier for an individual to demonstrate that he or she is disabled, and allow tribunals to make practical decisions as to whether or not a mental or physical impairment has the required effect.
The Equality Act 2010 covers the following types of discrimination in relation to disability:
- Direct discrimination is where a person is treated less favourably than another because of the protected characteristic of disability. An example would be refusing to promote a deaf woman, because her line manager believes that she would not be able to interact well with customers. The Act creates a general exception to the prohibition on direct discrimination in employment for an occupational requirement. It applies where the job genuinely requires that the person employed is or is not disabled. Applying this requirement should be a proportionate means of achieving a legitimate aim and the occupational requirement must be crucial to the post. For example, if there is an advertised post for a security guard whose main function will be to watch surveillance monitors, it would be an occupational requirement to need sighted applicants. Consequently, excluding blind applicants would not amount to unlawful discrimination.
- Indirect discrimination is where a provision, criterion or practice is applied that is discriminatory in relation to individuals who have a particular disability such that it would be to the detriment of people who share that particular disability compared with people who do not, and it cannot be shown to be a proportionate means of achieving a legitimate aim. For example, where an employer introduces a new shift pattern that requires fewer days of work, but longer shifts, it might be that, because of an employee's disability, he is unable to work longer hours. Consequently, the new shift pattern puts the employee, and all those who share the same disability at a disadvantage. This would amount to discrimination unless the employer can objectively justify the new shift pattern.
- Discrimination arising from disability occurs where an individual has been treated unfavourably because of something arising in consequence of a disability. There is no need for a comparator, and the reason for the unfavourable treatment is irrelevant. For example, disciplining an employee for repeated spelling mistakes that are in fact caused by dyslexia would amount to discrimination arising from disability. In this example, the employer should have considered other options such as making reasonable adjustments. To be liable for this type of discrimination, an employer must know, or should reasonably ought to have known, that the individual has a disability. An employer will have a defence if they can demonstrate that the treatment is a proportionate means of achieving a legitimate aim.
- There is an obligation on employers to make reasonable adjustments where a physical feature or a provision, criterion or practice puts a disabled person at a substantial disadvantage compared with someone who does not have the protected characteristic of disability. For example, if there is an employee who uses a wheelchair but the staff canteen is only accessible by climbing a few steps, a reasonable adjustment would be to install a wheelchair ramp to allow the disabled employee to reach the staff canteen.
- Harassment is where there is unwanted conduct, related to the protected characteristic of disability that has the purpose or effect of violating a person's dignity; or creating an intimidating, hostile, degrading, humiliating or offensive environment. For example, an individual may be subjected to insulting and humiliating comments from her line manager because she is partially deaf. That individual can bring a claim for harassment related to the protected characteristic of disability. In addition, if that employee's colleagues are also present when these comments are made, even though they are not directed at those individuals, they may also bring a claim for harassment related to the protected characteristic of disability as the line manager is creating an intimidating and offensive environment. It does not matter whether or not this effect was intended by the person responsible for the conduct.
- Associative discriminationis where an individual is directly discriminated against or harassed for association with another individual who has the protected characteristic of disability. For example, if an employer denies an employee a promotion because she has a disabled child and it thinks that the employee will not have the time to commit to the new role, that would amount to associative discrimination related to the protected characteristic of disability. Similarly, if an employer harasses an employee because his brother is dyslexic, that would be unlawful as associative harassment related to disability.
- Perceptive discrimination is where an individual is directly discriminated against or harassed based on a perception that he or she has the protected characteristic of disability, whether or not he or she does, in fact, have that protected characteristic. For example, a line manager may believe that an employee is suffering from a mental illness and consequently avoids giving him any challenging or stressful work. The employee has been discriminated against because of a perception of the protected characteristic of disability, even though he may be perfectly healthy. Similarly, a colleague may harass a woman because he thinks she has AIDS, even though she does not, in fact, have the illness.
- Victimisation occurs where an employee is subjected to a detriment, such as being denied a training opportunity or a promotion, because he or she made or supported a complaint or raised a grievance under the Equality Act 2010, or because he or she is suspected of doing so. However, an employee is not protected from victimisation if he or she acted maliciously or made or supported an untrue complaint. There is no longer a need for a complainant to compare his or her treatment with someone who has not made or supported a complaint under the Equality Act 2010.
There are no specific provisions in the Equality Act 2010 to cover third-party harassment. This does not mean that employers can be more relaxed about complaints from employees of harassment by third parties. An employer can be liable for unlawful discrimination for failing to prevent harassment only if its reason for not taking preventative action was on because of the protected characteristic of disability or because the individual had previously raised an issue of unlawful discrimination (Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School  IRLR 512 HL). In addition, employees who have been subjected to harassment by a third party may still bring a claim against their employer for constructive dismissal if the employee resigns and claims that the employer's failure to protect him or her amounts to a breach of contract. An employer can also be liable for negligence if the employee suffered mental and/or physical injury because of harassment by a third party that the employer could reasonably have foreseen and prevented or reduced. Employers should therefore continue to ensure that they take all reasonably practicable steps to prevent any harassment of employees.
For example, if a waitress has complained to her employer that a particular customer has been making offensive remarks to her about her hearing aid, the employer should take steps to protect the employee from this third-party harassment, such as banning the customer from the restaurant or allowing the waitress to take her break when that customer is in the restaurant.
The Equality Act 2010 has brought in some additional duties in respect of reasonable adjustments. For example, where reasonable to do so, employers should provide auxiliary aids and services where a disabled person would be at a substantial disadvantage without them, compared with persons who are not disabled.
Where a reasonable adjustment duty relates to the provision of information, the steps that it is reasonable for an employer to take include ensuring that the information is provided in an accessible format. For example, employers should consider providing information to employees in formats such as Braille or large type.
The duty to make reasonable adjustments arises only where an employer knows, or reasonably ought to know, that an individual is disabled. An employer may not pass on the costs of making reasonable adjustments to a disabled person.
There is no guidance in the Equality Act 2010 about what factors should be taken into account in deciding whether or not a particular adjustment would be a reasonable one. However, the "Employment statutory code of practice" contains a list as to the type of things that tribunals are likely to take into account in deciding whether or not an adjustment would be reasonable.
Under s.158 of the Equality Act 2010, employers may take positive action in the form of proportionate measures to encourage or train people from an under-represented group to apply for jobs, to overcome a perceived disadvantage or to meet specific needs based on a protected characteristic. For example, an employer could encourage deaf people to apply for roles by placing advertisements in specific publications.
Section 159 of the Equality Act 2010 permits employers in specific circumstances to recruit or promote a person with one protected characteristic in preference to another person who does not have the protected characteristic, provided both candidates are of equal merit.
Employers are liable for acts committed by their employees in the course of their employment whether or not the acts were done with the employer's knowledge and approval. Employers therefore need to ensure that they take swift and appropriate action against any member of staff who is harassing or otherwise discriminating against a disabled employee.
Relevant case law
Hainsworth v Ministry of Defence  IRLR 728 CA. The Court of Appeal held that the refusal of the Ministry of Defence to accomodate a request on the part of a non-disabled employee to change her place of work so that she could support her disabled daughter's educational requirements did not amount to a failure to make reasonable adjustments. The duty to make reasonable adjustments does not therefore extend to associative disability discrimination.
Environment Agency v Donnelly EAT/0194/13. The EAT held that an employer's failure to allocate a parking space to a disabled employee amounted to a failure to make a reasonable adjustment.
Cordell v Foreign and Commonwealth Office EAT/0016/11. The Employment Appeal Tribunal held that the Foreign and Commonwealth Office (FCO) did not discriminate against a deaf diplomat when it withdrew an offer of an assignment in Kazakhstan after an assessment showed that the cost of providing lipspeakers would have been prohibitive.
Aitken v Commissioner of Police of the Metropolis  EWCA Civ 582 CA. The Court of Appeal gave short shrift to a police officer's disability discrimination claim over his police force's actions after he displayed violent tendencies at a Christmas party that led his colleagues to fear for their safety.
Coleman v Attridge Law and another  IRLR 722 ECJ. The European Court of Justice held that the Framework Employment Directive (2000/78/EC) does cover direct discrimination and harassment against an employee on the ground of his or her association with a disabled person. The case was returned to the tribunal, which was satisfied that the Disability Discrimination Act 1995 (Amendment) Regulations 2003, which came into effect on 1 October 2004, were intended to give effect to the Framework Employment Directive. The claim could therefore proceed to a full hearing, although only in relation to matters taking place on or after 1 October 2004, a decision that was upheld in the Employment Appeal Tribunal (EBR Attridge Law LLP v Coleman EAT/0071/09). Discrimination because of an association with another person who has a disability is now covered in the Equality Act 2010, which replaces the Disability Discrimination Act 1995 from 1 October 2010.
Archibald v Fife Council  IRLR 651 HL. The House of Lords held that an employment tribunal misconstrued the scope of the employer's duty to take reasonable steps to prevent any of its arrangements from placing a disabled employee at a substantial disadvantage in comparison with people who are not disabled. The performance of that duty may require the employer, when making adjustments, to treat a disabled person more favourably in order to remove the disadvantage attributable to the disability. In this case that duty may have required the employer to transfer a road sweeper who became disabled (and as a consequence unable to continue in that job) to a vacant post involving sedentary work that she was qualified to undertake, even if the new post was on a slightly higher grade than the manual job.
Morse v Wiltshire County Council  IRLR 352 EAT. The employer's failure to consider properly whether there were any reasonable adjustments that it could make to enable the employee to be retained (prior to selecting him for redundancy) meant that the employee had been subjected to discrimination on the grounds of disability. This was despite the employer's defence that the reasons for selecting the employee for redundancy were both material and substantial, and the argument that no reasonable adjustment could have changed the situation.
The duty to make reasonable adjustments for disabled people includes auxiliary aids, and the provision of information. It is important to remember that the costs of making these reasonable adjustments cannot be passed onto individuals.
The positive action provisions in the Equality Act 2010 are voluntary. An employer that wishes to rely on s.159 can do so only if it reasonably thinks that a person is under-represented or suffers a disadvantage, and that the action taken is a proportionate way of addressing the under-representation or disadvantage. An employer that wishes to rely on this provision should take care because:
- it requires the employer to rely on information to back up its decision, but courts and tribunals have not yet given guidance on the level of evidence required;
- the individuals in question must be of equal merit in relation to the specific job, but what this amounts to is unclear as the courts and tribunals have not yet interpreted this provision, and the unsuccessful candidate might be able to launch a successful claim for direct discrimination if he or she can prove that the candidate who was appointed or promoted was less qualified than him or her; and
- the employer must not have a policy of treating persons with a protected characteristic more favourably.