CIPD - Disability and employment

Diversity and equality

Revised July 2009

This factsheet gives introductory guidance. It:

briefly outlines the legal background to disability discrimination
highlights some important issues to challenge stereotypical thinking
sets out some practical tips for a more progressive approach
includes the CIPD viewpoint.

Employers and managers may be nervous about addressing the issue of disability, they may be concerned about causing offence, confused by the complexity of the law or wary of the costs of disability related issues.

The legal position

The Disability Discrimination Act 1995 (DDA) is the main piece of legislation which makes it unlawful to discriminate against a disabled person in their terms of employment, promotion opportunities, by dismissing them or by subjecting them to any other detriment. All employers and some other organisations (for example public bodies) have to comply with this Act.

In addition there are various statutes and regulations covering disability, including:

The Disability Discrimination (Meaning of Disability) Regulations 1996 (SI 1996/1455)
Disability Rights Commission Act 1999
The Disability Discrimination (Blind and Partially Sighted Persons) Regulations 2003 (SI 2003/712)
The Disability Discrimination Act 1995 (Amendment) Regulations 2003 (SI 2003/1673)
The Disability Discrimination Act 2005
The Disability Discrimination (Guidance on the Definition of Disability) Appointed Day Order 2006 (SI 2006/1005)
The Disability Discrimination Code of Practice (Services, Public Functions, Private Clubs and Premises) (Appointed Day) Order 2006 (SI 2006/1967
The Disability Discrimination (Public Authorities) (Statutory Duties) (Amendment) Regulations 2008 (SI 2008/641).

On rare occasions additional legislation may be used: for example, the Protection from Harassment Act 1997 has been used in connection with other forms of discrimination and may be used in appropriate cases of disability discrimination.

Additionally, case law continues to develop and employers need to be aware of the way the law has been applied and interpreted in decided cases. CIPD members can find out more on the legal aspects of this topic and specific examples of disability-related issues which may arise in the workplace from our Disability discrimination FAQ in the Employment Law at Work area of our website.

Go to our Disability discrimination FAQ

Disability discrimination is a vast subject area which extends far beyond the employment relationship, for example to duties owed by educational establishments and provision of services to the public. These matters are dealt with in Part 3 of the DDA. In this factsheet, the focus is on the employment relationship and the duties owed by employers towards employees. The amendments to the DDA have forced employers to be much more aware about the needs of customers, clients and the public. Many progressive employers now approach the question of disability comprehensively with policy and training etc. on disability considering both the internal as well as external issues.

The DDA defines disability for the purposes of the Act: 'There must be a mental or physical condition which has a substantial and long-term adverse affect on the employee's ability to carry out normal day-to-day activities. Long-term means that the condition must last, or be likely to last, for more than 12 months. The applicant's ability to carry out normal day-to-day activities can be adversely affected in one or more of the following ways:

mobility
manual dexterity
physical co-ordination
ability to lift or otherwise move everyday objects
speech, hearing or eyesight
memory or ability to concentrate, learn or understand
understanding the risk of physical danger.'

(When, or if, the provisions of the Equality Bill, which is currently progressing through Parliament, are fully implemented it is possible that this definition may be simplified.)

Under the DDA it is unlawful for an employer (or prospective employer) to:

discriminate against a disabled person in employment
fail to provide any necessary reasonable adjustments for disabled employees and applicants
subject a disabled person to harassment
subject a disabled person to victimisation because they have brought, or given evidence to information in connection with, proceedings under the DDA
undertake disability-related discrimination.

Various Codes of Practice issued under the DDA are available on the Equality and Human Rights Commission’s website (see Useful contacts section below). These are important when considering matters relating to disability and employment and they will be taken into account by courts and tribunals where relevant.

Development of the DDA

Enforcement of the DDA has been through a gradual process of evolution.

The Disability Discrimination Act 1995 (Amendment) Regulations 2003 came into force on 1 October 2004 and introduced certain key amendments to the DDA, including for example:

Removal of the small business exemption for employers with fewer than 15 employees.
Making it clear that the employee is required to establish facts from which it may be presumed that discrimination has taken place, after which the burden of proof is placed on the employer to establish that there has been no discrimination.
Specific prohibition of harassment based on disability.
Removal of the justification defence in direct discrimination cases where the reason for that treatment is based merely on the fact that the person has a disability rather than on a consideration of the individual's abilities.
Extension of protection in certain circumstances beyond the end of the employment relationship from acts of discrimination (including harassment).
Removal of the justification defence in respect of a failure to make reasonable adjustments.

Further amendments contained in the Disability Discrimination Act 2005 made it clear that, for example:

The definition of disability extends to persons with progressive conditions such as HIV, multiple sclerosis and cancer.
People with mental illness are protected in the same way as everyone else and that the illness does not have to be clinically recognised.
Publishers are liable for publishing discriminatory advertisements.

The general Disability Equality Duty (DED) came into force on 4 December 2006, together with some specific duties. All public authorities have to comply with these duties, including publishing their Disability Equality Scheme.

The Equality Bill 2008/9 will introduce some further important changes for example concerning comparators, justification, the definition of disability and protection for those who are perceived to have a disability by association.

CIPD members can find out more on the proposed future developments of this topic from our Disability discrimination FAQ in the Employment Law at Work area of our website.

Go to our Disability discrimination FAQ

Some simple facts to challenge stereotypical thinking and the way employers behave

Disability should not be confused with all long term illness as disability can affect health in different ways.
Fewer than 8% of people with disabilities are wheel chair users.
Not all disabilities are obvious. More people acquire disabilities than are born with them - only 17% of disabled people are born with a disability.
Disability affects people in different ways in different circumstances.
The problems that arise may relate to the physical design of the environment they are in such as offices, shops and public places and transport. However problems may also relate to operational customs and practices at work such as hours of work or time keeping.
One in four people have someone in their family or a close friend who has a disability – corporate image and reputation can be seriously damaged or enhanced by negative or positive experiences. It has been estimated that the value of this purchasing power exceeds £80 billion p.a.
Mental health problems, such as depression and anxiety affect 25 % of the population and stress related illness is increasing.
Nearly one in five people of working age (6.9 million, or 19%) in Great Britain have a disability.
People with disabilities find it two and a half times more difficult to get a job than able bodied people.
It is possible to make simple changes to jobs and the way they are carried out in order to successfully employ someone with a physical or mental impairment or learning difficulty without serious cost or even at no cost at all.
Good practice shows that there can be easy ways to recruit and retain talented people with disabilities which can often bring more general benefits in other ways.
Not everyone with a disability under the legal definition would see themselves as such and many disabled people fear disclosing such information for fear of being unfairly treated. Such apprehension is bad for everyone and businesses and organisations need to focus on building trust through honest and transparent ways of working which can build everyone’s confidence.

Recommendations for positive progress

To be successful at managing disability organisations need to train all employees to behave responsibly and treat people with respect and dignity. Employers also need to encourage line managers to adopt a ‘can do’ mindset by providing them with information concerning good practice, and legal obligations. Line managers may also need advice about open and respectful discussions with individuals to find out how reasonable adjustments can be made.

Top tips

1. Audit existing policies and practices.
2. Draw up a business case for change and get management support.
3. Develop a revised good practice policy which complies with legal duties and ensure this is communicated to everyone.
4. Clarify line manager and employee responsibilities; offer employee training to build their understanding and confidence to act appropriately including contract specifications in, for example, recruitment and procurement.
5. Design an action plan to implement the policy; monitor and review outcomes and effectiveness to make approaches more robust; share the learning across your organisation.
6. Follow good recruitment practice – see our good recruitment practice fact sheet.

Go to our Recruitment factsheet

7. Keep up date with good practice and legal developments.
8. Network with other employers interested in progressing diversity to share learning and ideas and keep up to date and ahead of your competitors.
9. Listen to your disabled employees and customers to make sure you know about their needs and preferences and help ensure policies and practices are relevant and up to date.

CIPD viewpoint

Valuing diversity and inclusion is central to good people management and talent development and adds value to sustaining business performance as evidenced by CIPD research regarding managing diversity.

Visit our Diversity research page

The CIPD believes it is in the best interests of all organisations to value all people as individuals and to concentrate on personal abilities and strengths. This will enable organisations to respond efficiently and effectively to diverse customer and client needs and expectations.

Having a disability should be used neither to bar someone automatically from being considered for work or training opportunities nor from good customer service. It is in the best interest of organisations to embrace the disability agenda to become inclusive as an employer and a provider of accessible goods and services.

Useful contacts

As well as the following which deal with disability in a general way, there are many voluntary sector organisations with websites which offer detailed information and workplace advice about specific disabilities.

Disability and employment