As legislation designed to combat discrimination in the workplace against people with disabilities reaches its 21st year, it’s a fitting time to reflect on its impact on disabled people within the labour market. Unfortunately, this reveals that any optimism legislators might have had that the Disability Discrimination Act 1995 (or its successors) would be a catalyst for a more diverse workforce seems to have been misplaced.
Over the period the employment rate for disabled people has remained obstinately lower than for non-disabled people, with little sign of improvement. Fewer than five in ten are in employment compared with eight in ten non-disabled people. The UK Government has opened a consultation to help them understand “why disabled people and people with health conditions might be unable to get a job or keep one, and the wide range of circumstances they face”.
Of the 6.9 million disabled people of working age in the UK, The Disability Living Foundation reports that over a million are available for and want work. Laws to safeguard employees with disabilities in the workplace are only one part of a complicated jigsaw of factors affecting those with disabilities, along with policies on welfare, Government and charitable initiatives and societal perceptions. Analysis by the Equality and Human Rights Commission of the latest Fair Treatment at Work Survey shows disabled workers were up to 10 per cent more likely to have experienced bad treatment or discrimination at work. However, last year, compensation was awarded by employment tribunals in just 72 cases across the UK. Given that 1 in 5 people of working age has a disability, and given the survey evidence, that seems surprisingly low.
Part of the explanation is that far more claims end up being settled out of court (40-50 per cent). That said, the overall number of claims being brought is also low – fewer than 3,500 in 2015-2016. No doubt the introduction of employment tribunal fees has had a huge impact. It costs an employee £1,200 to have their case heard and the number of disability-related claims last year was fewer than half that received in each of the four years before the fees’ introduction.
The low claim count could suggest encouragingly high levels of compliance by British employers but unfortunately the sustained underrepresentation of people with disabilities within the workforce hints at a different explanation.
Despite the gloomy statistics, the legislation itself has created important entitlements and protections. One of the most important is the duty on employers to make reasonable adjustments in certain circumstances to eliminate disadvantage. This is unique among UK anti-discrimination laws because it requires a degree of positive action and can require employers to treat employees with disabilities more favourably than they would treat others. The big question that vexes employers, employees, employment lawyers and tribunal members alike is what is or is not reasonable in any given circumstances.
The duty might extend to obliging an employer to transfer an employee to a different role – potentially at a higher grade – without competitive interview if he or she can no longer perform their own role due to a disability.
The boundaries of reasonableness were tested in a recent Employment Appeal Tribunal case. In G4S Cash Solutions v Powell, after Mr Powell became disabled through back injury, his employer gave him work in a new role which was less skilled. Though initially his existing rate of pay was maintained, G4S later told him they were only prepared to retain him in the role at a reduced rate. Mr Powell refused to accept this and was dismissed. He went to tribunal and, on appeal, the higher rate of pay was found to be a reasonable adjustment in the circumstances.
This was a timely example of the significant and far reaching rights the legislation has created. Hopefully the current consultation will shed light on why, despite this maturing regulation, employment rates for disabled people remain imperviously low.
Lesley Murphy is a Partner at Harper Macleod