Disability Discrimination at Work: Information & Examples

What is Discrimination Arising From Disability?

With almost a quarter of the UK population reporting a disability in 2023, UK employers must ensure they’re providing appropriate levels of support to employees with disabilities and neurodivergence. This may include writing policies and carrying out practices that avoid direct or indirect discrimination. And it’s a moral obligation as well as a legal one under the Equality Act 2010.  

People with disabilities and neurodivergence can and do experience varying degrees of disability discrimination at work. In some cases, employment policies can cause indirect discrimination. Other times, employers may fail to offer staff reasonable adjustments they need like flexible shifts or assistive technology. 

In more extreme cases, staff can experience verbal harassment as a direct form of discrimination. Workplace leaders can find handling such issues difficult. But ignoring them more often than not leads to low morale, high staff turnover, grievances, and employment tribunals. 

Discrimination that arises from disability occurs when workplace leaders judge the impact of someone’s disability. It’s an indirect, unintentional form of discrimination when leaders and managers try to address the effects of someone’s disability. Some examples include: 

• Not letting someone take work absences for hospital appointments because it’s not company policy
• Judging a person’s behavioural change when they’ve taken a new medication
• Preventing flexible working arrangements or rest breaks when someone needs them
• Not agreeing to provide assistance dogs because they don’t want a dog in the office

Some instances of disability discrimination at work may be lawful if evidence of a genuine business need. For instance, managers can suggest alternatives to an assistance dog as a way to protect the health and safety of other staff. 

Types of Disability Discrimination

Disability discrimination at work can happen in many different settings, from the office to home-working and even staff socials. The Equality Act 2010 aims to tackle discrimination at every point by protecting staff across six areas of disability discrimination, one of which we already covered in the previous section:  

Direct Discrimination

Staff can face direct discrimination when they receive less favourable treatment or disadvantage at work because of their disability or neurodivergence. 

If someone believes they experienced this form of discrimination they should find a comparator example to see the treatment others received. The comparator must have the same abilities and skills as the person discriminated against. This will provide evidence of unfair treatment. 

Other subtypes of direct discrimination include: 

• Discrimination by association: Employees may face discrimination if they care for other people with disabilities or mental health problems. 
• Discrimination by perception: Discrimination can happen when employers judge someone to have a neurodivergence or disability. 

Indirect Discrimination

Company policies, cultures, and ways of working can cause indirect discrimination against people with neurodivergence and disability. With such a high risk of inadvertent discrimination coming from these areas, employers must ensure they consider every type of protected characteristic in their DEI and HR policies. 

Indirect disability discrimination at work is unlawful unless the organisation or employer can provide a good reason for the decision. When they can provide a reason it’s referred to as objective justification. 

Failure to Make Reasonable Adjustments

The Equality Act 2010 sets out a list of protected characteristics that includes a broad definition of disability. In most cases, this definition includes neurodivergence, such as dyslexia, which it defines as a disability. 

Dyslexia affects around 10% of the population and employers must make reasonable adjustments for people with this type of neurodivergence such as introducing assistive technology or offering later starting times. For example, implementing a speech recognition tool can enable a dyslexic employee to dictate reports instead of typing, making it a reasonable adjustment under the Equality Act. Similarly, offering a captioning app in meetings ensures that an employee with auditory processing issues can follow the discussion without missing key points.

Employers are legally bound by the Equality Act 2010 to make reasonable adjustments for staff with disabilities. But if they believe a suggested amendment isn’t reasonable they must explain that to the staff member and offer an alternative form of support. 

Harassment

Employers are responsible for the actions of employees and third-parties so must be vigilant over any form of verbal, physical, or written harassment. Harassment against people with disabilities can take many forms including: 

• Derogatory or underhand comments
• Forcing someone to do something they can’t do or are uncomfortable with
• Making jokes or carrying out pranks on someone because of their disability 
• Giving people nicknames or teasing them

Staff and managers who make too much of a point to ask employees with disabilities and neurodivergence how they are in front of others can cause harassment. People with disabilities and neurodivergence want to feel empowered to do their jobs and–once they do–they should receive the same treatment as their peers. 

Victimisation

Victimisation can happen when a staff member receives less favourable treatment or receives negative feedback because they’re involved with a ‘protected act’. Examples of a protected act include: 

• Making a complaint relating to discrimination or harassment
• Supporting another staff members complaint
• Being a witness to a complaint
• Gathering information that may lead to a complaint
• Giving evidence or saying something that doesn’t support someone else’s complaint

Victimised staff can experience gossip behind their backs, exclusion from activities and meetings, and deliberate acts of intimidation. Employers must take any complaints of victimisation seriously and decide whether to handle them formally or informally. 

Disability Discrimination at Work Examples

To bring some clarity to this topic, let’s take a look at some typical examples of disability discrimination at work through the lens of each type we’ve described: 

• Direct discrimination: A candidate receives a job offer and decides to disclose her dyslexia to her new employers. The employers withdraw their offer and offer another candidate instead, who doesn’t have a disclosed neurodivergence or disability. If the employers’ reason for withdrawing the offer is because of the first candidate’s dyslexia it’s direct discrimination. 
• Indirect discrimination: An organisation posts a job advert with a requirement that all applicants hold a valid driver’s licence. This can create indirect discrimination against people with physical disabilities who can’t drive or need extra support to get to work.  
• Failure to make Reasonable Adjustments: ADHD burnout is common and work absences can be 10% higher for people with ADHD. If an employer refuses to allow a temporary reduction in work volume for someone with ADHD, this could be a failure to make reasonable adjustments on their part. 
• Discrimination arising from disability: A visually impaired employee needs extended time off to have an operation and recover. Their manager follows the company absence policy which strictly permits extended absence. The employee goes ahead anyway and then receives a formal warning which impacts their chances for promotion.  
• Harassment: When someone with dyslexia receives continuous taunting or negative comments about their spelling, handwriting, or because they use assistive technology it’s considered harassment. 
• Victimisation: A manager fails to make the agreed reasonable adjustments for a member of staff with disclosed autism and the staff member makes a complaint against them. They also stop this member of staff from getting a promotion. 

Successful Disability Discrimination Cases UK

Disability discrimination at work cases in the UK are rising and reports suggest disability discrimination claims have surged by 30% in recent months. Much of this is because employers are catching up with providing appropriate support and recognition for staff mental health conditions like depression and anxiety. 

While depression and anxiety are also considered neurodivergent conditions, dyslexia, ADHD, PTSD, and autism can also affect staff performance at every level of an organisation up to Executive Director. When disabilities aren’t properly recognised and managed it can result in claims and tribunals of huge sums of money. So let’s take a look at some examples of where things can go wrong. 

Meseret Kumulchew vs. Starbucks

Meseret Kumulchew disclosed her dyslexia to her employer Starbucks yet found herself accused of fraud and falsifying documents over a simple mistake. Ms Kumulchew had a supervisory role in the Clapham branch where she was responsible for recording fridge and water temperatures at certain times of the day. Having made an error in reading time and writing, Starbucks accused her of fraud and treated her unfairly. 

Ms Kumulchew confirmed she had disclosed her neurodivergence to employers and they were always aware of it. And she had asked for extra training on at least one occasion. The court ruled that Starbucks did not have sufficient dyslexia awareness or training provision and found Starbucks had failed to make reasonable adjustments for Meseret Kumulchew’s disability. 

Mrs R Wright-Turner v London Borough Council of Hammersmith and Fulham and MS K Dero

This recent case resulted in a landmark decision and a huge payout to the claimant. The London Borough of Hammersmith and Fulham hired Mrs Wright-Turner as Director of Public Services Reforms in 2017/18. 

Mrs Wright-Turner had an ADHD diagnosis and took daily medication. She also struggled with PTSD from a previous role responding to the Grenfell Tower fire. She worked very long hours during her 6-month probation period yet employers raised a red flag that she hadn’t disclosed her ADHD to them during the interview. Towards the end of her probation, the claimant collapsed from the effects of ongoing stress and PTSD. While on sick leave, Hammersmith and Fulham Council extended her probation by 3 months. However, they dismissed her at the end of this extended 3 months. 

The tribunal found the 3-month extension without feedback on performance during sick leave contravened employment policies. They also found Mrs R Wright-Turner was unable to carry out her work to her full abilities because of her ADHD and PTSD. Hammersmith and Fulham Council ignored both issues when considering her performance review and dismissal. This resulted in Mrs R Wright-Turner winning her case and receiving an enormous payout of over £4.5 million.