Introduction

Disability and disadvantage in the workplace

Disabled people are statistically less able to participate in employment compared to their non-disabled colleagues. In 2012, the Labour Force Survey found 46.3% of working-age disabled people in employment, compared to 76.4% of working-age non-disabled people. This 30 percentage-point gap between the disabled and non-disabled represents over two million people, and during the current economic downturn the outlook for disabled workers is worsening. At the 2013 TUC Disabled Workers’ Conference, TUC assistant general secretary Kay Carberry said: “These are profoundly tough times for disabled workers. The government’s austerity drive is destroying jobs and cutting back the public services many rely on. The NHS, social care and mental health are all suffering real-terms cuts”.

Disabled workers often deal with complex and wide ranging disabilities which may affect them in different ways at all stages of their working careers. It is well known that the overall statistics conceal many different realities. People with mental illness issues have an employment rate of little more than 10% and people identified as having severe or specific learning difficulties only 15%. Disabled people are more likely to have fewer qualifications as a result of discrimination faced during childhood, and only 18% of disabled people without qualifications have jobs (see pages 53-55 for a comprehensive list of statistics relating to disabled workers).

But despite facing substantial challenges at work, there should be no reason why disabled workers should not have successful working careers. Disability is a “protected characteristic” under the Equality Act 2010 (EA 2010) which includes protection against discrimination at work. Trade unionists dealing with disability at work need to know the law in order to ensure disabled people get fair access to work opportunities and are able to achieve long and successful working careers.

This booklet considers the employment tribunal and Employment Appeal Tribunal (EAT) approaches to recent disability cases. Union reps should note that all cases are decided on their own particular facts and there may be different considerations that will apply to each unique situation.

Trade unions and disability discrimination

Unions play a key role in protecting and safeguarding the right of disabled workers. Not only are they there to assist a member complaining of disability discrimination, they also campaign for the rights of vulnerable groups including disabled workers and negotiate with employers for positive change in the workplace. Some examples of union action on disability at work are set out in Chapter 6.

This booklet aims to provide trade unionists with a practical legal guide to help protect disabled people in the workplace. Chapter 1 looks at the law on disability discrimination, including relevant cases to help illustrate certain important legal principles in practice. There are two different types of cases that are referred to. The first are cases at the employment tribunal where disability discrimination cases are heard. Tribunal cases are good examples of how the law is interpreted by the tribunals, though the tribunal decision is not a legally binding precedent. The second type of case is those considered by the Employment Appeal Tribunal. They are appeals from tribunals on points of law and are legally binding decisions. The remainder of this Chapter deals with employment tribunal procedure.

Chapter 2 refers to practical guidance on avoiding disability discrimination at different stages of the employment process. Chapter 3 details practical guidance for union reps on how to deal with disability discrimination in the workplace. The Public Sector Equality Duty is covered in Chapter 4. Chapter 5 gives guidance on health and safety of disabled workers. Finally, Chapter 6 examines union action on dealing with disability at work and the government’s Access to Work scheme.