Disability discrimination at work: your rights

Disability discrimination is the most common type of discrimination claim in the employment tribunal, and the one people most often do not realise applies to them. Many workers with long-term health conditions are protected without ever having thought of themselves as disabled.

Who counts as disabled

Under the Equality Act 2010 you are disabled if you have a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day to day activities.

• Substantial means more than minor or trivial. It is a low bar.
• Long-term means it has lasted, or is likely to last, at least 12 months, or is likely to last for the rest of your life. Conditions that come and go count if they are likely to recur.
• The effect is judged without the medication or treatment you take for it. A condition well controlled by medication can still be a disability.

Cancer, HIV and multiple sclerosis are covered automatically from diagnosis. Depression, anxiety, diabetes, chronic pain, long Covid, ADHD, autism, dyslexia and back conditions all commonly qualify depending on their effect.

The five ways it can happen

• Direct discrimination. Treating you worse because of your disability.
• Discrimination arising from disability. Treating you unfavourably because of something arising in consequence of your disability, such as sickness absence or a symptom, unless the employer can justify it. This is the most commonly used route and it does not require a comparator.
• Failure to make reasonable adjustments. See below. This is a positive duty, not a request you have to fight for.
• Indirect discrimination. A policy applied to everyone that puts disabled people at a particular disadvantage and cannot be justified.
• Harassment and victimisation. Unwanted conduct related to disability that violates your dignity, and being treated badly for complaining about discrimination.

Reasonable adjustments

Where a provision, criterion or practice, a physical feature, or the absence of an auxiliary aid puts you at a substantial disadvantage, your employer must take reasonable steps to remove it. The cost is theirs to bear, and they cannot ask you to pay for it.

Common examples: phased return to work, adjusted hours or homeworking, changes to sickness absence triggers, redeploying to a suitable alternative role, additional breaks, equipment or software, adjustments to assessments and interviews, and a quieter workspace.

What is reasonable depends on the size and resources of the employer, the cost, and how effective the adjustment would be. Employers frequently get this wrong by treating adjustments as favours, waiting to be asked in exactly the right words, or stopping at what is convenient.

The duty is triggered once the employer knows, or could reasonably be expected to know, about the disability and the disadvantage. That is why telling your employer in writing matters so much.

Building your position

Tell your employer about your condition and its effects in writing, even if it feels uncomfortable. Ask specifically for adjustments and set out what would help.

Occupational health referrals are useful, but remember the employer is not bound by the report. If they depart from it, ask why in writing.

Keep a dated record of absences, adjustments requested and refused, meetings and comments. Discrimination cases turn on patterns, and a contemporaneous record is far stronger than a reconstruction.

Note the burden of proof rule: if you can prove facts from which a tribunal could conclude discrimination occurred, the burden shifts to your employer to prove it did not. That is a significant advantage, but only if the facts are evidenced.

Time limits and remedies

Discrimination claims must normally be brought within three months less one day of the act complained of, or the end of a continuing course of conduct, with the clock paused during ACAS early conciliation. Tribunals have a wider discretion to extend time in discrimination cases where it is just and equitable, but do not rely on it.

Compensation is not capped. It covers financial loss, an award for injury to feelings assessed in bands, and in serious cases aggravated damages and interest. There is no minimum service requirement, and you can claim while still employed.

What to do next

If you are being managed for absence or performance that is connected to a health condition, or your adjustments are being ignored, get advice before the process reaches a dismissal. The right letter at the right moment often resolves it without a claim at all, and if it does not, it builds the evidence that decides the case later.