Does the Law Protect Disabled People?

The law

UK protections against disability discrimination are primarily contained in the Equality Act 2010 (EA 2010). The legislation consolidated and replaced several earlier anti-discrimination laws, including the Equal Pay Act 1970 and the Disability Discrimination Act 1995.

The EA 2010 prohibits discrimination, harassment and victimisation in employment and in the provision of goods, facilities and services.

Section 13 prohibits direct discrimination where a person is treated less favourably because of a protected characteristic. The Act identifies 9 protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Disability is defined by the EA 2010 as a physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities.

The legislation also places a duty on employers and service providers to make reasonable adjustments where disabled people would otherwise be placed at a substantial disadvantage.

The failure

Despite these protections, discrimination continues to occur.

During 2019, there were increasing reports of disability discrimination in the workplace, demonstrating that not all employers were complying effectively with their obligations under the EA 2010.

Mental health was an important part of this picture. Employees experiencing stress, depression and other mental health difficulties could find themselves in need of reasonable adjustments, while some were reluctant to disclose their difficulties because they feared being perceived by their employer as incapable of coping with their work.

That fear can itself contribute to an unfair working environment.

There were also concerns about the disability pay gap.

According to figures reported by the Office for National Statistics, disabled workers earned less on average than non disabled workers, with a reported pay gap of 12.2% in 2018.

The disparity was particularly significant among workers with mental health conditions. This raised broader questions about whether mental impairments were being treated with the same seriousness as physical disabilities.

Leigh Day, a firm specialising in claims involving vulnerable clients, highlighted some of the difficulties faced by disabled workers seeking to challenge discrimination. Employment claims are subject to strict limitation periods, meaning that workers who do not act within the relevant timeframe may lose the opportunity to bring a claim.

There may also be less visible forms of discrimination at work.

Disability charity Scope had reported that almost half of businesses considered it easier to employ non disabled people than disabled people. Such attitudes are concerning where there is no evidence that disabled employees are inherently less productive or capable of contributing to a business.

Disability support beyond the workplace

The difficulties facing disabled people are not limited to employment.

Towards the end of 2019, communities in Scotland faced cuts to disability services, including reductions in social care and day centre provision. These changes placed additional responsibilities on families who had previously relied on community services for support.

The situation also raised questions about the adequacy of existing legal and social protections.

Legislation sometimes referred to as “Frank's Law” had expanded access to free personal care for some older people with disabilities. However, concerns remained that cuts to services could undermine the practical support available to disabled people, even where statutory entitlements existed.

The wider consequences could be significant. Reduced access to social care and community services can increase isolation and place additional pressure on families and carers.

The case: Linsley v Commissioners for HMRC

There have nevertheless been important examples of disabled employees successfully challenging discriminatory treatment.

One such case was Linsley v Commissioners for HM Revenue and Customs.

The facts

The claimant was a disabled employee whose condition was aggravated by stress. A significant source of that stress was the difficulty she experienced finding suitable parking at work.

It was recommended that she should have a dedicated parking space, and her employer initially provided one.

Following a change in the location of her workplace, however, the dedicated space was no longer available. She was instead advised to use disabled parking spaces or a controlled parking area where she would have to move her vehicle later in the day.

The employer had a policy stating that priority should be given to employees who required accessible parking.

The claimant found the process of finding suitable parking stressful and brought a claim before the Employment Tribunal, alleging disability discrimination.

The Tribunal

The Employment Tribunal found that the employer had failed to follow its own parking policy. However, it dismissed the claimant's claim, concluding that the policy did not create an enforceable contractual right.

The Tribunal also considered that providing the claimant with a dedicated parking space was not necessarily the only or most appropriate solution to her difficulties.

The claimant appealed.

The appeal

The Employment Appeal Tribunal ordered the claim to be reconsidered.

The Employment Appeal Tribunal found that the employer's failure to follow its own policy appeared to have resulted from a lack of awareness that the policy existed. If an employer intended to depart from such a policy, it would need a proper justification for doing so.

Evidence established that the difficulty of finding a parking space was causing the claimant significant stress.

Although the Employment Tribunal had been entitled to consider that a dedicated parking space was not necessarily the only reasonable adjustment, the alternatives proposed did not adequately address the particular disadvantage experienced by the claimant.

The case demonstrates the importance of the reasonable adjustment duty.

Where a provision, criterion or practice places a disabled employee at a substantial disadvantage compared with non disabled employees, an employer is required to take reasonable steps to avoid that disadvantage.

What needs to change?

These examples demonstrate the gap that can exist between legal protection and lived experience.

The EA 2010 provides an important framework for challenging disability discrimination, but legislation cannot eliminate discriminatory attitudes or guarantee that employers and service providers will comply with their obligations.

As we move into a new decade, there are therefore wider questions to consider.

Should legislators strengthen existing protections? Should more claims be brought through the courts and tribunals to hold those responsible for discrimination to account? Or does the greater challenge lie in changing attitudes towards disability?

The answer is likely to involve all 3.

Disability discrimination can occur in the workplace, in the provision of services and throughout wider society. Effective legal protection requires not only appropriate legislation, but also awareness, compliance and enforcement.

The law can provide the framework for equality. It cannot, by itself, guarantee it.