A manager tells an employee with anxiety that they are ‘not resilient enough’ for promotion. A worker with a long-term back condition is disciplined for absence without any discussion of adjustments. An applicant who uses a hearing aid is rejected after an interview held in an inaccessible setting. These situations may look different, but each can raise serious legal concerns.
Understanding what counts as disability discrimination is the starting point for protecting your rights or, for employers, managing workplace decisions fairly and reducing legal risk. Under the Equality Act 2010, disability discrimination is not limited to openly prejudiced comments or a dismissal because someone is disabled. It can arise from everyday policies, absence procedures, recruitment methods and a failure to remove avoidable workplace barriers.
When is someone legally disabled?
The Equality Act 2010 protects people with a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
‘Substantial’ means more than minor or trivial. ‘Long-term’ usually means the effect has lasted, or is likely to last, at least 12 months. Day-to-day activities can include concentrating, communicating, lifting, walking, using a computer, travelling independently or following a routine.
The legal test is more detailed than a diagnosis alone. Conditions such as depression, anxiety, autism, ADHD, chronic pain, diabetes, cancer, multiple sclerosis and visual impairment may amount to disabilities, but the effect on the individual matters. Cancer, HIV and multiple sclerosis are treated as disabilities from diagnosis. Some progressive conditions can also be covered before their effects become substantial.
An employee does not need to use the word ‘disabled’ to be protected. However, an employer’s knowledge is often crucial, particularly where the issue is a failure to make reasonable adjustments. If the employer knew, or could reasonably have been expected to know, about the disability and its effects, it may have duties to act.
What counts as disability discrimination at work?
The Equality Act identifies several forms of unlawful disability discrimination. More than one can apply to the same workplace problem.
Direct discrimination
Direct discrimination happens when someone is treated less favourably because of disability itself. For example, refusing to employ a suitably qualified candidate because they have a condition requiring regular treatment, or excluding a disabled employee from client-facing work because of assumptions about how others may react.
Unlike some other claims, an employer cannot usually justify direct disability discrimination by saying the decision was commercially sensible or applied consistently. There are limited exceptions in specific circumstances, but they should be approached with care.
Discrimination arising from disability
This occurs when a person is treated unfavourably because of something arising from their disability, rather than because of the disability in the abstract. It is a distinction with major practical consequences.
For example, an employee may be penalised for disability-related absence, reduced concentration caused by medication, an assistance dog, altered speech, or a need for regular breaks. A disciplinary warning for absence linked to a disability may be unlawful if the employer cannot show its approach was a proportionate means of achieving a legitimate aim.
Employers may sometimes be able to justify this treatment, such as where there is a genuine health and safety requirement or a significant operational need. But they must show that the decision was necessary and balanced, not simply convenient. Considering adjustments first is often central to that assessment.
Failure to make reasonable adjustments
This is one of the most common and fact-sensitive areas of disability discrimination. Employers must take reasonable steps to avoid a disabled worker being placed at a substantial disadvantage compared with non-disabled people.
A reasonable adjustment will depend on the role, the employee’s needs, available resources, cost, practicality and the impact on colleagues or service delivery. It does not mean every requested change must be agreed. It does mean requests must be properly considered and not dismissed through assumption or delay.
Adjustments might include altered working hours, home or hybrid working, specialist equipment, accessible software, a phased return, redistributing a limited part of a role, additional rest breaks, changing a trigger point in an absence policy, providing written instructions, or allowing time off for treatment. For a job applicant, it could mean offering an accessible interview room, extra assessment time or an alternative format for materials.
A blanket policy is rarely a safe answer. Requiring all staff to attend the office full time, work fixed shifts or meet a standard absence trigger may disadvantage disabled people. The question is whether a tailored adjustment is reasonable in the circumstances.
Indirect disability discrimination
Indirect discrimination arises where a policy, criterion or practice applies to everyone but puts disabled people, or a particular disabled person, at a particular disadvantage.
A requirement to work late shifts, complete a timed test in a particular way or attend an office with limited access may have this effect. An employer can defend the claim if it proves the requirement is a proportionate means of achieving a legitimate aim. The more realistic alternatives that were available, the harder that defence may be to establish.
Harassment and victimisation
Harassment is unwanted conduct related to disability that violates someone’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. Mocking a colleague’s stammer, repeatedly questioning whether their condition is genuine, or making jokes about medication can all cross the line.
Victimisation occurs when someone suffers a disadvantage because they have raised a discrimination concern, supported another person’s complaint, or taken steps connected with the Equality Act. A worker should not be sidelined, denied opportunities or subjected to hostility for raising a genuine concern in good faith.
Situations that need careful handling
Not every disagreement about sickness absence, flexible working or performance is discrimination. Employers are entitled to manage attendance and performance, and employees are still expected to carry out the essential requirements of their roles where possible.
The legal risk arises when disability-related factors are ignored. Before issuing a warning, declining flexibility, changing duties or starting a capability process, an employer should ask whether there is a disability, what disadvantage is arising, what medical or occupational health evidence is needed and whether adjustments could fairly address the issue.
For employees, it helps to explain the practical impact of the condition rather than only naming it. A clear request might identify the barrier, the adjustment sought and why it would help. Keep copies of emails, fit notes, meeting notes, performance records and any requests for support. This can make the facts easier to establish if a dispute develops.
What to do if you think discrimination has happened
Raise the issue promptly, ideally in writing. In some cases, an informal conversation with a manager or HR team can resolve a missed adjustment or misunderstanding. Where the problem is serious, ongoing or unresolved, a formal grievance may be appropriate.
Employees should be aware that most Employment Tribunal discrimination claims have a strict time limit of three months less one day from the act complained of. Starting ACAS Early Conciliation is normally required before bringing a claim and can pause the time limit, but it does not remove the need to act quickly. There is no minimum period of employment required to bring a discrimination claim.
Possible remedies can include compensation for financial losses and injury to feelings, recommendations in some cases, and a declaration of rights. Compensation in discrimination claims is not subject to the usual statutory cap that applies to many unfair dismissal awards.
Employers should investigate concerns fairly, document the reasoning behind decisions and obtain appropriate evidence before relying on capability, absence or health and safety concerns. A well-managed process protects the business, but it also gives the individual a fair opportunity to remain and succeed at work.
Clear advice can prevent an avoidable dispute
Disability discrimination cases often turn on detail: what the employer knew, when it knew it, what barriers existed, and whether a reasonable adjustment was genuinely considered. Early, practical advice can help employees protect their position and help employers make confident, legally sound decisions before a workplace issue becomes a tribunal claim.
Where the stakes involve someone’s health, livelihood or the organisation’s reputation, the best next step is usually a calm assessment of the facts and a clear plan for resolving the issue fairly.