Discrimination- unfortunately, it’s still extremely prevalent in today’s society, particularly on the grounds of disability in the workplace. It is, however, deemed to be less ‘obvious’ today, as it takes place covertly (‘undercover’), as opposed to overtly (‘in the open.’) The unfortunate factor though, is that it takes place at all.
There is, however, a positive takeaway, despite the continued prevalence of discrimination in today’s society. This ‘positive takeaway’ is that, unlike in the past when discrimination would go unpunished, today, punishment is unavoidable, this being due to the existence of legislation that protects marginalised groups from being unfairly discriminated against.
As well as legislation providing people with protection, so too does the ‘Disability and Health Employment Strategy’ (2013), which exists to provide employment support for disabled people and those living with health conditions that impact upon their day-to-day life (DWP, 2013.) This gives the 14 million people who live with disabilities in the UK alone (Scope) relief and a sense of hope.
Disability and what it is
To begin with, it is paramount that we are all aware of what it actually means to be disabled. The definition given in the Equality Act (2010) is: ‘anyone who has a physical or mental impairment that has a substantial and long-term negative effect on their ability to do normal daily activities (GOV.UK.) It is illegal for an employer to discriminate against people on the grounds of them having a disability.
‘Discrimination’, which refers to ‘treating a person or particular group of people differently, especially in a worse way to how they treat other people’ (Cambridge Dictionary), can take place both directly (in the context of someone who is disabled themselves), and indirectly, (in the context of an individual being associated with someone else who is disabled.)
Whilst most people associate discrimination in the context of work with ‘not being selected for a job’ and therefore not getting passed the recruitment process, discrimination also occurs for people who are employed but treated less favourably than their able-bodied colleagues, solely due to their disability (for example; being given terms and conditions of employment that are less favourable than their able-bodied colleagues, such as lower pay, being dismissed or made redundant due to the inconvenience of having to make adjustments to the workplace, and feeling harassed/victimised for being disabled.)
Employment laws exist to prevent such discrimination in the workplace, by helping to ensure that everyone can have a successful, fulfilling career, no matter what their disability status. The main legislation that legally protects people from discrimination, (both in the workplace and in wider society), is the Equality Act (2010), a replacement for the previous legislation, the ‘Disability Discrimination Act’ (1995).
Legislation is an essential due to the longstanding nature of Disability discrimination, with it having been identified as early as 1944, this being after the second world war when disabled people in Germany were victim to mass genocide, and when an estimated 300,000 ex-servicemen, women, and civilians were injured in the war, consequently leaving them with long term disabilities.
The first legalisation against the discrimination of disabled people was introduced to account for the discrimination that these people were subjected to, via the ‘Disabled Persons Employment Act’ (1944.) This act was, however, not considered to be ‘enough’ for many people, which led to protests taking place.
In 1955, a decade after the first act was introduced, a new one, the ‘Disability Discrimination Act’, was created, as passed by the, then Prime Minister, John Major.
The Disability Discrimination Act (1955) made the unjust treatment of disabled people on the grounds of their disability an offence. It was the first legislation of its kind in the UK, serving to protect disabled people against all forms of discrimination.
Protests, however, were to take place again in the early 1990s, as people demanded new legislation to provide even greater support for disabled people. Whilst the protests started off relatively ‘peaceful’, with people holding marches and demonstrations to express their concerns, they went on to become more ‘radical’, and saw protestors handcuffing themselves to buses, and devising ‘offensive’ slogans, both of which were used during a protest outside an ITV charity fundraising event, ‘Telethon.’ Radical action such as this was of detriment to their campaign for new legislation, however, as, rather than being supported by charities in their efforts to pass new legislation, charities in fact chose to distance themselves from the protests, seeing them as being ‘patronising’ and ‘limiting to their cause of legal action.’
Over time, the protests became ones of greater peacefulness. They saw disabled rights groups and protesters, including the likes of Jane Campbell DBE, lobbying Parliament to bring in legislation that would offer greater support to disabled people. Protestors hoped that, by lobbying regularly, the issues faced by disabled people would be kept at the forefront of the minds of ‘changemakers’ (i.e., politicians.)
Their lobbying paid off as, in May of 1995, a bill was introduced to the House of Lords. It was stated by the, then Minister of State, as being ‘the first comprehensive measure to tackle discrimination against disabled people ever brought before Parliament by a British Government. It ensures that the move to a more accessible environment will not place undue burdens on those who will be responsible for delivering its provisions.’ Labour, however, were not so positive about the bill, with this scepticism leading to them raising concerns that the bill could be ‘unduly restrictive in the terms of defining disability.’ They stated how ‘if a person has a disability that falls outside the definition in the bill, even though it gives rise to discrimination, there is no redress. Therefore, courts will have to take difficult decisions about diagnosis, definition, and prognosis.’
Despite the scepticism felt by Labour, in November 1995, the bill, to be known as the ‘Disability Discrimination Act’, was passed, allowing more support to be offered to a much greater volume of people (i.e., anyone who has a physical or mental impairment that adversely effects their ability to carry out normal daily activities.)
Furthermore, the act, which was one of the first to protect disabled people from discrimination, also made it unlawful for employers with 15 or more employees to treat an applicant or an employee with a disability less favourably than others. The factors protected by the act included:
- Direct discrimination: where a disabled person is treated less favourably than another person due to their disability.
- Failure to make a ‘reasonable adjustment’: where any workplace practice or feature of the premises puts a disabled worker at a disadvantage
- Victimisation: where a person is treated unfavourably because they made a complaint about their treatment as a disabled person.
In 2005, the Disability Discrimination Act underwent an amendment that saw power of authority being remitted to public authorities such as the Government. A further amendment occurred in 2009, a result of the, then Labour government, approving a bill developed by the UN Convention for the Rights of Disabled People. This bill sought to promote respect for the dignity of all disabled people, and the safeguards for their human rights and fundamental freedoms.
By 2006, the ‘Disability Discrimination Act’ (1995), was surpassed by the ‘Equality Act’ (2010.) This transition occurred due to the sheer scope of what it means to be disabled not being covered by the previous act. The new act, then, sought to highlight the protection that is available to anyone who is classed as being disabled (of which there are a lot of people.) It aims to ensure that anyone who is entitled to disability protection realises their entitlement (because an overwhelming number of people do not realise that they even classify as having a disability, let alone being entitled to disability protection.) For example, someone with Dyslexia is covered by the act, although they, more than likely, do not realise this. Everyone is therefore encouraged to check the act to see if they are covered by the legislation (of which anyone who meets the definition of disabled is.) This definition is as follows; ‘a person who has a physical or mental impairment that reduces their abilities compared to most people.’ The ‘impairment’ can be a diagnosed condition such as arthritis which prevents a person from being able to carry out normal day-to-day activities, or an undiagnosed condition such as extreme tiredness from a lack of sleep. Anything that can have an adverse and long-term effect on an individual’s ability to carry out day to day activities is classed as an ‘impairment.’ It is important to note that this doesn’t mean an individual with an impairment is unable to do anything, it simply means that they find their day-to-day tasks harder to complete as a result of their condition.
Some impairments are automatically treated as a disability, for example:
- Cancer, including skin growths that need removing before they become cancerous
- A visual impairment (this means that you’re certified as blind, severely sight impaired, sight impaired, or partially sighted)
- Multiple sclerosis
- HIV (either symptomatic or asymptomatic)
- A severe, long-term disfigurement (e.g., severe facial scarring or a skin disease)
An example of a situation that could be covered under the Equality Act 2010 can be seen in the following case study:
‘Vicky’ has been struggling with her mental health since her partner left her a year ago. She has stopped going out because she doesn’t want to talk to people. Furthermore, she has stopped engaging in everyday activities like shopping and cooking. Without her daughter’s encouragement, she wouldn’t even get out of bed on a morning.
Based on the above case study, it is obvious that ‘Vicky’ has some sort of mental impairment. Whether she has been diagnosed with a mental disorder like Depression or not, she is entitled to help and support.
Having a diagnosis, although not essential, would help Vicky to prove that she has an impairment. If she doesn’t have a diagnosis though, she can still access support, however she will need to show how the impairment is long-term (it has been affecting her or will affect her for more than a year) and has a substantial adverse effect on her ability to carry out day-to-day activities without medication or aid (this being the definition of what it means to have an impairment.) If Vicky is unsure as to whether her mental ill health classifies as an impairment, she can liaise with a health care professional in order to seek clarification as to whether she is ‘covered’ under the Equality Act (2010), and therefore protected from discrimination.
Under the Equality Act there are six main types of discrimination, which include:
- Direct discrimination: when someone is treated unfairly because of a protected characteristic (e.g., someone is not offered a job because they have a disability, with the job going to a less qualified, able-bodied individual instead.)
- Indirect Discrimination: when someone with a disability is put at a particular disadvantage due to the practice/policies/rules that apply to everyone as a collective not being suitable for their needs as an individual.
- Failure to make reasonable adjustments: as indicated above, having practices/policies/rules in place that apply to everyone can put certain groups at a disadvantage. Employers must ensure that reasonable adjustments are made to ensure that employees with disabilities/physical or mental health conditions do not face such disadvantages in their job.
- Discrimination arising from disability: disability discrimination refers to the act of someone being treated unfavourably for a reason that relates to their disability in one of the situations covered by the Equality Act. The treatment could be a one-off action, the application of a rule or policy that fails to be inclusive of everyone, or existing barriers (physical or communication) which make accessing something difficult, or impossible, for disabled people.
- Harassment: harassment refers to behaviour directed at disabled individuals that is unwanted, violates their dignity, and/or creates an environment that is intimidating, degrading, offensive or humiliating. It does not have to relate to a disability that you personally have, for it could also occur due to ‘discrimination by perception’ (e.g., if someone thinks you have a disability), and ‘discrimination by association’ (if you are connected to someone with a disability.)
- Victimisation: being treated unfairly as a form of ‘punishment’ by an employer whom one has complained about discrimination to, whether that be reporting discrimination that they themselves have been subjected to, or discrimination that someone else has been the victim of.) Being treated ‘unfairly’ can cover a wide range of things, such as one being labelled as a ‘trouble-maker’, being ‘ostracised’ by their colleagues, being bullied, disciplined, or even being dismissed from their job.
To prevent discrimination of any form, the Equality Act (2010) has made it a requirement for service providers, colleges, and employers to make reasonable adjustments that support people with disabilities in their efforts to lead successful careers. The Equality Act classes ‘reasonable adjustments’ in a variety of ways, examples of which include providing:
- Flexible working hours
- Flexible return to work policies following illnesses
- Modified work performance targets
- Special equipment or extra assistance (some of this may be provided by education grants or under the access to work scheme)
- Information in an accessible format such as braille, large print, easy read or by using coloured paper
- An accessible website
- Adjustments to ensure the accessibility of venues
These adjustments are enforceable only if an individual’s disability deems such changes a necessity. The size of the organisation in question and how much money/resources they have available can also determine whether change is to be forcibly made a requirement. This is because changes must be ‘reasonable.’ Other ways to determine whether changes should be enforced is based on their practicality, economic viability, and ability to overcome the disadvantages faced by disabled people. If reasonable adjustments are not made without a valid reason for this however, organisations can be taken to court via the instigation of a ‘case law’ on the grounds of discrimination, as is highlighted below in the following case studies:
1- In 1999, a case law was instigated between Mrs Tiquin of V Abbey National PLC. This was due to Mrs T’s job role having been forced to change to a customer service advisor role after her original employer, National & Provincial Building Society, merged with Abbey National PLC.
When Mrs T was moved to her new position of customer service advisor, the managers refused to allow her access to toilets and water freely, instead telling her that she had to use her dedicated breaks for this. As a result of her basic human right to a toilet and water being denied, Mrs T experienced stress, which subsequently led to multiple severe flare ups of her irritable bowel syndrome (IBS.)
Due to the situation described above, Mrs T was forced to take long term sick, before being dismissed from her role in 1998. Mrs T claimed that, under the Disability Discrimination Act (1995), her working conditions should have been adjusted by Abbey National PLC. She claims that she requested to move to a more suitable role within the Mortgage Centre building on a number of occasions, but this was denied by Abbey National PLC for reasons that they would not disclose. Abbey, however, dispute this claim under the reasoning that:
- The claim was brought out of time.
- Mrs T was dismissed for incapacity not disability.
- Mrs T was not disabled as of the act.
- No discrimination took place against Mrs T, there was simply no reasonable adjustment to suit Mrs T that could be made, and so she chose not to return to work
In 1999, the case was taken to Tribunal and was ruled in favour of Mrs T.
The tribunal decided that her disability fell under section 1 of the Disability Discrimination Act, being classed as a ‘continuous threat to her continence’ which, along with Mrs T’s other symptoms, affected her memory and concentration.
Abbey National’s failure to make the relevant reasonable adjustments to working conditions placed Mrs T at a substantial disadvantage. This breached section 6 of the Disability Discrimination Act. Not only did Abbey National fail to make arrangements around Mrs T’s disability, but they also discouraged her from pursuing what would’ve been an appropriate solution of redeployment. Mrs T was told she would need to go through a ‘competitive selection process’, and that her ‘long-term absence would be taken into consideration’, thus making her an ‘unattractive candidate’ who, ultimately, ‘shouldn’t bother applying.’
This, however, was discrimination, as ruled by the tribunal. As such, Abbey National was made to pay £18,569 in compensation to Mrs T.
2- Another example of a case law is from December 1998. This case saw Mrs Watkiss, a successful applicant for a Company Secretary role, being discriminated against following the disclosure of her medical report. The report provided a brief overview of Mrs W’s medical history, as well as an outline of three occasions that she was admitted to hospital due to schizo-affective breakdown. After the company received the report, a letter was sent to her from the personnel director of the organisation. This letter stated that her standard of health did not ‘measure up’ to the job and therefore the job offer was ‘withdrawn.’
After receiving the letter, Mrs Watkiss began to look into the Disability Discrimination Act to see whether she was covered (she was.) She subsequently appointed a solicitor who proceeded to take the case to an Employment Tribunal. At the Employment Tribunal, the company stated that Mrs Watkiss was not open and honest within her application or at her interview. The organisation also stated that it would have had severe repercussions on the organisation if she were appointed as the Company Secretary, as the position she had applied for could cause stress which they felt Mrs Watkiss would be unable to manage, something which, they believed, would impact upon their business’s reputation and, ultimately, their shares.
However, under the Disability Discrimination Act, it was illegal to discriminate against a potential employee due to their disability. As a result, the case was made in Mrs W’s favour, with her being awarded damages based on a loss of earnings and ‘injury’ to her self-esteem. She won the case as she was deemed to have been ‘unfairly discriminated against’, with this being a result of the organisations ‘ignorance and prejudice.’
The above two case studies provide evidence that, although discrimination is still far too common today, the legislation that exists goes some way in counteracting its effects, by punishing the ‘discriminators’, and empowering those who are discriminated against.