Stamping Out Disability Discrimination at Work
In 2020, a Financial Times study found that disability discrimination claims were one of the fastest rising types of cases brought to the Employment Tribunal, with an annual increase of 26% from 2018 to 2019. The pandemic seems to have exacerbated this trend, with the Trades Union Congress reporting in 2021 that nearly one in three disabled workers reported unfair treatment due to their disability in the workplace during Covid-19.
But why are disability discrimination claims rising?
One reason might be the significant rise in mental health issues in the workplace. A 2021 report by the Health and Safety Executive found that stress, depression or anxiety accounted for 50% of all work-related ill health cases, and that the prevalence rate for these cases has been increasing steadily over time.
Workers with mental health problems are often not given the same compassion and assistance as workers that fall ill with a physical impairment due to negative views around mental health. There is still a huge social stigma around depression, anxiety and other mental health impairments such as bi-polar disorder. Also, workers who are neurodiverse often struggle with depression as a consequence of social isolation. It is important that managers and colleagues receive training on working with people with neurodiversity, such as those on the autistic spectrum, in order to understand their challenges.
Our Employment Law team has found that the most common failure made by employers to meet their duties to disabled staff is the failure to make reasonable adjustments. Often, this is because employers fail to identify that their worker might be disabled and do not appreciate that they could be taken to an Employment Tribunal because they ought to have known they were disabled.
An example of this is where an employee has taken time off on a few occasions because they are suffering from depression. They have also advised their employer that they are on anti-depressants, which is usually medication that GPs expect to be taken consistently over a relatively long period of time.
The Equality Act defines a disability as a physical or mental impairment which is long term which means, has lasted or is likely to last at least 12 months. Being prescribed antidepressants should indicate that this person is likely to be disabled under the Equality Act. The depression must have a substantial effect on that person’s day to day activities and therefore the fact they are taking time off perhaps due to loss of concentration, sleeplessness and not coping (and being prescribed medication by their GP to help with these symptoms) means this part of the test will usually be met. When deciding whether there is such a substantial effect, the test is how that person would be were they not taking medication.
Employers are expected to undertake risk assessments and take active steps to assist a worker where reasonable adjustments are needed. If there are performance issues then any Performance Improvement Plan (PIP) must identify whether there are any reasonable adjustments to support that person so they can stay and be successful in the workforce.
We are finding that far too many employers are unaware of their duties owed to their staff with disabilities. Or are unprepared to support their employees who are experiencing mental health issues.
Consequently we are seeing an increase in cases of disability discrimination from employees who are struggling to stay in work due to their employer’s failure to make reasonable adjustments. They may also be facing an unfair and discriminatory dismissal. This may be through unfair or discriminatory selection criteria for redundancy or because they are being performance managed out of the business with no regard to how their disability is affecting their performance.
This is why it is important that HR Teams and managers have training around mental health awareness and have mental health first aiders to assist. Encouraging workers to talk about their mental health and offering constructive support is key.
The Legal 500 2022/3 praises our Employment Law team for being “enthusiastic about campaigning to promote equality in the workplace” and mentions our annual Disability Matters campaign. Once again in October 2022, we are campaigning to stamp out disability discrimination at work for good. Our campaign coincides with World Mental Health Day on 10 October 2022. As part of our campaign, we aim to educate and inform employers and advisers on how to ensure those with mental health issues are supported at work.
We are offering a free 30 minute advice line on Tuesdays and Thursdays between 3.30 – 5.30pm for employees concerned about disability discrimination at work and employers who are keen to obtain best practice advice to support disabled workers.
We will also be running a free online webinar for employee advisers on how to help their clients who are experiencing discrimination at work – to book, see here. We are also running a virtual training session in association with Community Works to provide practical advice to charities and non-profit organisations on managing ill health and disability at work – click here for more details.
Disability Matters is our annual campaign committed to help employers and employees understand their rights and responsibilities at work, particularly to those with ‘hidden’ disabilities. We aim to make the workplace a much more accepting place for all disabled people, especially those with mental health issues or who are neurodiverse.
If you are a worker or employer requiring advice then please contact our support team on 01273 609911, or email info@ms-solicitors.co.uk so we can arrange for a free 30 minute appointment on Tuesdays and Thursdays throughout October 2022.
