Employees have a day-one right to bring disability discrimination claims.
We are seeing a growing number of claims from employees who have not previously declared, or been diagnosed with, a disability. These claims are often raised following disciplinary action, leaving employers feeling unable to manage their business effectively.
Here is some practical advice to help you stay in control.
What is a disability?
Under the Equality Act 2010, a disability is 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.
- Substantial means more than minor or trivial.
- Long-term means the condition has lasted, or is expected to last, at least 12 months.
Examples include:
- Mobility impairments (e.g. arthritis, paralysis)
- Sensory impairments (e.g. blindness, deafness)
- Mental health conditions (e.g. depression, anxiety, bipolar disorder)
- Neurodivergent conditions (e.g. autism, ADHD, dyslexia)
- Chronic illnesses (e.g. cancer, multiple sclerosis, diabetes)
The Equality Act excludes certain conditions, including:
- Addiction to alcohol, nicotine, or non-prescribed substances
- Hay fever (unless it worsens another condition)
- Tendencies to set fires, steal, or physically or sexually abuse others
- Exhibitionism and voyeurism
How can employers reduce the risk of claims?
Use a medical questionnaire
Issue a medical questionnaire after making a job offer. Completion should be voluntary and allows employees to disclose any condition that may affect their ability to perform their role.
Where a condition is disclosed, discuss:
- Its impact on the employee’s duties
- Any reasonable adjustments that may be required
Consider reasonable adjustments
Employees can request adjustments even if they are not legally disabled, although statutory protection only applies where the Equality Act definition is met.
Employers must consider adjustments when they know, or could reasonably be expected to know, that someone is disabled, or where a disability is affecting their work, attendance, or return from sickness absence.
Examples include:
- Adapted equipment or software
- Accessible documents and communications
- Additional support or specialist assistance
- Changes to working hours or duties
- Time off for medical appointments
- Home or hybrid working arrangements
What is reasonable depends on the circumstances, although employers are not required to change the fundamental nature of a role.
Obtain medical evidence
With the employee’s consent, consider obtaining a medical report from their GP or specialist.
Medical advice can help clarify:
- Diagnosis and prognosis
- Treatment and side effects
- Recommended workplace adjustments
Encourage use of Access to Work
Inform employees about the government’s Access to Work scheme, which may provide grants for practical workplace support.
Applications must be made by the employee. Employers should encourage applications and review progress regularly.
Where an employee fails to engage with the scheme, this may assist the employer’s position if a claim is later brought.
Need advice?
If you are dealing with a workplace disability issue and would like guidance, please get in touch.
