Disability & Mental Health

Under the Equality Act 2010, employers should not ask health-related questions before making a job offer, including questions relating to any time you have taken off sick.

There are some exceptions where employers are permitted to ask about disability or your mental health:

• If certain tasks are fundamental to the job in question, and may be difficult for those with a particular disability, for example moving heavy equipment;
• If having a disability is a necessary requirement for the job, for example for a job that involves testing specialist equipment designed to assist those with access issues; 
• If the candidate is able to fully take part in all aspects of the recruitment process, or may require reasonable adjustments to carry out interview processes.

Employers are obliged to consider making reasonable adjustments at interview stage should you request them.

You may be asked if you have a disability or mental health condition as part of diversity monitoring within the company, but you do not have to answer this, and your answers should always be kept separate from any recruitment criteria and should not count against you in the recruitment process. 

Knowing that you have a job offer may give you the confidence to disclose a disability or mental health problem, and discuss any reasonable adjustments that you may need. Employers are bound to consider providing such adjustments according to the criteria already discussed above. 

You may feel more comfortable disclosing once you have secured a role, and you may choose to do this on your first day, whilst signing your contract, or at any other point, but it is best to do it as soon as possible.

Working practices and technology change constantly. If there is a change to your work pattern or practice that is incompatible with your disability, you are within your rights to demand a reasonable adjustment, and this would be the point to disclose if you have not already done so. 

There are many benefits of disclosing and letting HR, your manager, and/or your team know:

• Reasonable adjustments at work, including a change in working patterns, specialist equipment, and any other provisions;
• Help and support from occupational health, employee assistance programmes, and colleagues;
• Greater openness in the workplace - if you are open, others are likely to follow.

An occupational requirement or occupational qualification is when the nature of a particular job means that an applicant with a protected characteristic can reasonably be chosen over another. Where having a protected characteristic is an occupational requirement, certain jobs can be reserved for people with that protected characteristic (for example, women support workers in women's refuges; ministers of religion).

The organisation must be able to show that there is a good reason for the occupational requirement. This is known as objective justification.

There are 8 possible reasons for claiming an occupational requirement when recruiting:

• Jobs in foreign countries with specifically relevant laws or customs;
• Physiology or authenticity (for example, in choosing actors to play a role);
• Privacy and decency of people the employee would be dealing with (for example, staff in a care home);
• Private household's integrity (for example, professional careers for an individual, but not normally nannies);
• Single-sex accommodation, when it is unreasonable to expect the employer to provide additional accommodation;
• Single-sex establishments, for example special prisons and refuges;
• Personal welfare and counselling, when directly relevant to the welfare or counselling provided;
• When a pair of jobs are advertised specifically for a married couple.

In each of these, reasons must be specific and absolute, not based on stereotypes or generalised assumptions.

Objective justification gives a defence for applying a policy, rule or practice that would otherwise be unlawful indirect discrimination. 

It also gives a defence for using a rule or practice based on someone's age, that would otherwise be direct discrimination.

To rely on the objective justification defence, the employer must show that its policy or age-based rule was for a good reason – that is 'a proportionate means of achieving a legitimate aim'.

To prove objective justification:

• the aim must be a real, objective consideration, and not in itself discriminatory (for example, ensuring the health and safety of others would be a legitimate aim);
• if the aim is simply to reduce costs because it is cheaper to discriminate, this will not be legitimate;
• working out whether the means is ‘proportionate’ is a balancing exercise: does the importance of the aim outweigh any discriminatory effects of the unfavourable treatment?;
• there must be no alternative measures available that would meet the aim without too much difficulty and would avoid such a discriminatory effect: if proportionate alternative steps could have been taken, there is unlikely to be a good reason for the policy or age-based rule.

This happens when someone treats you worse than another person in a similar situation because of disability. For example:

• during an interview, a job applicant tells the potential employer that he has multiple sclerosis. The employer decides not to appoint him even though he’s the best candidate they have interviewed, because they assume he will need a lot of time off sick

Indirect discrimination happens when an organisation has a particular policy or way of working that has a worse impact on disabled people compared to people who are not disabled. 

Indirect disability discrimination is unlawful unless the organisation or employer is able to show that there is a good reason for the policy and it is proportionate. 

This is known as objective justification. For example:

• a job advert states that all applicants must have a driving licence. This puts some disabled people at a disadvantage because they may not have a licence because, for example, they have epilepsy. If the advert is for a bus driver job, the requirement will be justified. If it is for a teacher to work across two schools, it will be more difficult to justify

Under the Equality Act employers and organisations have a responsibility to make sure that disabled people can access jobs, education and services as easily as non-disabled people. This is known as the ‘duty to make reasonable adjustments’. 

Disabled people can experience discrimination if the employer or organisation doesn’t make a reasonable adjustment. This is known as a ‘failure to make reasonable adjustments’. For example:

• an employee with mobility impairment needs a parking space close to the office. However, her employer only gives parking spaces to senior managers and refuses to give her a designated parking space

What is reasonable depends on a number of factors, including the resources available to the organisation making the adjustment. If an organisation already has a number of parking spaces it would be reasonable for it to designate one close to the entrance for the employee.

The Equality Act also protects people from discrimination arising from disability. 

This protects you from being treated badly because of something connected to your disability, such as having an assistance dog or needing time off for medical appointments. This does not apply unless the person who discriminated against you knew you had a disability or ought to have known. For example:

• a private nursery refuses to give a place to a little boy because he is not toilet trained. His parents have told them that he isn’t toilet trained because he has Hirschsprung’s Disease, but they still refuse to give him a place. This is discrimination arising from the little boy’s disability
• an employee with cancer is prevented from receiving a bonus because of time she has taken off to receive treatment

Discrimination arising from disability is unlawful unless the organisation or employer is able to show that there is a good reason for the treatment and it is proportionate. This is known as objective justification. For example:

• an employee whose eyesight has seriously deteriorated cannot do as much work as his non-disabled colleagues. If his employer sought to dismiss him, after ruling out the possibility of redeployment, the employer would need to show that this was for good reason and was proportionate

Harassment occurs when someone treats you in a way that makes you feel humiliated, offended or degraded. for example:

• a disabled woman is regularly sworn at and called names by colleagues at work because of her disability

Harassment can never be justified. However, if an organisation or employer can show it did everything it could to prevent people who work for it from behaving like that, you will not be able to make a claim for harassment against it, although you could make a claim against the harasser.

This is when you are treated badly because you have made a complaint of discrimination under the Equality Act. It can also occur if you are supporting someone who has made a complaint of discrimination. For example:

• an employee has made a complaint of disability discrimination. The employer threatens to sack them unless they withdraw the complaint
• an employer threatens to sack a member of staff because he thinks she intends to support a colleague’s disability discrimination claim