Disability discrimination is one of the most common types of claim brought to UK employment tribunals, and one of the easiest for employers to get wrong. The Equality Act 2010 places significant obligations on employers to protect disabled employees from unfair treatment and to make reasonable adjustments where needed. For small and medium-sized businesses without a dedicated HR team, understanding these rules is essential. Getting it wrong can result in uncapped compensation, reputational damage, and the loss of valued employees.
This guide explains what counts as a disability, the different types of discrimination, your duty to make reasonable adjustments, and the practical steps you should take when disability arises in the workplace.
What counts as a disability under the Equality Act 2010
The Equality Act 2010 defines a disability as a physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. "Substantial" means more than minor or trivial, and "long-term" means it has lasted, or is likely to last, at least 12 months.
This covers a much wider range of conditions than many employers realise:
- Physical conditions such as arthritis, epilepsy, diabetes, heart conditions, and mobility impairments
- Mental health conditions such as depression, anxiety, bipolar disorder, and PTSD
- Neurodivergent conditions such as autism, ADHD, dyslexia, and dyspraxia
- Fluctuating conditions where symptoms come and go, such as ME/CFS, fibromyalgia, and multiple sclerosis
- Progressive conditions where the effects are likely to worsen over time, such as motor neurone disease, muscular dystrophy, and dementia
Three conditions are automatically treated as disabilities from the point of diagnosis, regardless of their current effect: cancer, HIV, and multiple sclerosis.
It is important to understand that many disabilities are not visible. An employee may not look disabled, and they may not have told you about their condition. That does not mean they are not protected. If you know, or could reasonably be expected to know, that an employee has a disability, you have a duty to act. For more on the protected characteristics covered by the Equality Act, see our guide to protected characteristics.
Types of disability discrimination
The Equality Act 2010 sets out several ways in which disability discrimination can occur. Understanding these is critical, because each type has different legal tests and defences.
Direct discrimination (section 13) occurs when you treat someone less favourably because of their disability. For example, refusing to interview a candidate because they disclose epilepsy on their application form, or choosing not to promote someone because you assume their condition makes them less capable. Direct disability discrimination cannot be justified.
Indirect discrimination (section 19) occurs when you apply a provision, criterion, or practice that puts disabled people at a particular disadvantage compared to non-disabled people, and you cannot show that it is a proportionate means of achieving a legitimate aim. For example, requiring all employees to work fixed hours with no flexibility could disadvantage someone whose condition requires regular medical appointments.
Discrimination arising from disability (section 15) is a type unique to disability. It occurs when you treat someone unfavourably because of something arising in consequence of their disability, rather than because of the disability itself. A common example is dismissing an employee for poor attendance when that attendance record is caused by a disability-related condition. Unlike direct discrimination, this type can be justified if the treatment is a proportionate means of achieving a legitimate aim.
Failure to make reasonable adjustments (sections 20-21) occurs when a disabled person is placed at a substantial disadvantage by a provision, criterion, or practice, a physical feature, or the absence of an auxiliary aid, and the employer fails to take reasonable steps to avoid that disadvantage. This is covered in detail below.
Harassment (section 26) occurs when unwanted conduct related to disability has the purpose or effect of violating someone's dignity, or creating an intimidating, hostile, degrading, humiliating, or offensive environment. This includes jokes, comments, and exclusion.
Victimisation (section 27) occurs when someone is subjected to a detriment because they have made, or are believed to have made, a complaint about disability discrimination, or have supported someone else's complaint.
The duty to make reasonable adjustments
The duty to make reasonable adjustments is one of the most important obligations under the Equality Act 2010, and one that catches many employers out. It is a proactive duty. You do not have to wait for an employee to ask before considering what adjustments might be needed.
The duty is triggered when a disabled person is placed at a substantial disadvantage compared to a non-disabled person by:
- A provision, criterion, or practice (such as a policy, working hours requirement, or performance target)
- A physical feature of the workplace (such as stairs, lighting, or noise levels)
- The absence of an auxiliary aid or service (such as specialist software, a hearing loop, or a support worker)
What counts as "reasonable" depends on the circumstances, including the size and resources of your business, the practicality of the adjustment, the cost, and the extent to which it would remove the disadvantage. There is no fixed list. Common adjustments include:
- Flexible working hours or patterns
- Phased return to work after absence
- Modified duties or reallocation of tasks
- Working from home arrangements
- Providing specialist equipment or software
- Allowing additional breaks
- Adjusting performance targets or deadlines
- Moving to a more accessible workspace
- Time off for medical appointments
- Providing information in accessible formats
A key point: you should always consult with the employee about what adjustments would help. They understand their condition better than you do. An Occupational Health referral can also provide valuable, objective advice about what adjustments are appropriate.
If you are unsure whether your business needs to support neurodivergent employees specifically, our separate guide covers that topic in more detail.
Managing disability-related absence
Absence management is one of the areas where disability discrimination claims most commonly arise. Many employers use trigger-based absence management systems, such as the Bradford Factor, to identify patterns of short-term absence. These systems are useful, but they must be applied with care when disability is involved.
If an employee's absence is related to a disability, treating it in exactly the same way as general sickness absence can amount to discrimination arising from disability under section 15. Best practice is to:
- Exclude disability-related absence from standard triggers. If an employee has 10 days off for a flare-up of a chronic condition and 2 days off with a cold, only the cold should count towards your standard absence triggers.
- Refer to Occupational Health. An OH assessment can confirm whether the absence is disability-related, what adjustments might reduce future absence, and whether the employee is likely to be able to return to their role.
- Consider adjustments to the absence policy itself. Extending trigger points, allowing additional paid or unpaid sick leave, or adjusting return-to-work requirements can all be reasonable adjustments.
- Follow a fair process before taking any formal action. If you are considering a capability procedure for a disabled employee, you must demonstrate that you have considered and implemented reasonable adjustments first, and that the level of absence is still unsustainable despite those adjustments.
For more detail on managing absence generally, see our guide to managing employee absence for SMEs. If you need to understand how Statutory Sick Pay works alongside disability-related absence, our SSP guide covers the essentials.
Common mistakes employers make
Having supported hundreds of SMEs through disability-related issues, these are the mistakes we see most often:
Assuming someone is not disabled because they "look fine." Many conditions are invisible. Depression, anxiety, ADHD, diabetes, Crohn's disease, and many others have no outward signs. If an employee tells you about a condition, or you have reason to suspect one, take it seriously.
Treating disability-related absence the same as general sickness. As explained above, this can amount to section 15 discrimination. Always ask whether absence might be connected to a known or suspected disability before applying standard triggers.
Failing to explore adjustments before taking formal action. Employment tribunals will want to see evidence that you considered and, where appropriate, implemented reasonable adjustments before moving to formal absence management, performance management, or dismissal. "We didn't know what to do" is not a defence.
Not keeping records. Document every conversation about disability and adjustments, every OH referral, every adjustment considered (whether implemented or not, and why), and every review. If a claim is brought, your records are your evidence.
Making assumptions about capability. Do not assume that a disabled employee cannot do their job, cannot be promoted, or cannot take on additional responsibilities. Ask them. Assess them on the same basis as any other employee, with adjustments in place.
Ignoring the duty when recruiting. The duty to make reasonable adjustments applies from the point of recruitment. If a candidate discloses a disability, you must consider whether adjustments are needed to the interview process, any assessments, or the role itself.
What to do if an employee raises a disability
If an employee tells you about a disability, or you become aware of a condition that might qualify, follow this process:
- Acknowledge and listen. Thank the employee for telling you. Ask what impact the condition has on their work and what support they think would help. Do not diagnose or second-guess.
- Consider an Occupational Health referral. This is not mandatory, but it provides an independent, expert view of the condition, its workplace impact, and recommended adjustments. Ask the employee for consent before making a referral.
- Review and implement adjustments. Based on the employee's input and any OH recommendations, agree a set of reasonable adjustments. Put them in writing.
- Review regularly. Conditions change. What works today may not work in six months. Schedule regular check-ins to review whether the adjustments are still effective and whether anything needs to change.
- Keep records. Document every step: the disclosure, the adjustments considered, the adjustments implemented, any OH reports, and the outcome of each review.
- Brief relevant managers. With the employee's consent, ensure that line managers understand the adjustments in place and their responsibility to apply them consistently. Consider whether disability awareness training would help.
How Rebox HR can help
Disability discrimination is a complex area, and the consequences of getting it wrong are serious. If you need help reviewing your policies and procedures, handling a disciplinary or grievance process involving a disabled employee, or simply want expert guidance on your obligations, we are here to help.
Book a free consultation or call us on 01327 640070 to discuss how we can support your business.
