Disability discrimination at work – why the increase?

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Julie Dennis: Hi, I'm Julie Dennis, Head of Inclusive Workplace Policy here at Acas and in this episode, we're discussing our recent disability discrimination research, which looks at the nature and drivers of disability discrimination employment tribunals. Joining me for this timely discussion is Martin Mitchell from the National Centre for Social Research. Thank you for joining me today, Martin. So, would you like to say a few words about yourself and what you do?

Martin Mitchell: Hi, thanks Julie. I'm a Senior Researcher at the National Centre for Social Research, or NatCen, and I work in our Communities, Work and Income team. I've been doing applied policy research now for 25 years, so a bit long in the tooth. I have a background in doing research in equality, diversity and discrimination. So, it was really good to be involved in this Acas study on why there had been a rise in disability discrimination claims that are going to employment tribunal and not being settled through conciliation earlier.

Julie: Thank you, Martin. So, to begin, could you just give me a very brief overview of what your research focused on and who participated?

Martin: We found quite a broad range of types of alleged disability discrimination, including physical, mental, cognitive and neurodivergence. And I think we'll come back to some of those a little bit later in the discussion.

The claims essentially fell into 3 patterns, really. So while some were claims related directly to disability, others were more to do with poor management handling of another issue – things like flexible working requests, or where staff had had periods of sickness absence, and that then led on to people feeling stressed, anxious and a decline in their mental health. So that was the second pattern.

And there are also other claims linked to what people regarded as unfair dismissal, or where employers had disciplined people over what they thought was poor performance, and disability then became a part of that claim. I should also say some employers suspected that the issue wasn't disability at all, really, but they had been added to the claim as part of another jurisdiction. So again, where there'd been a dismissal or a breach of contract, employers sometimes suspected that people added disability to their claim to try and strengthen it when they went to employment tribunal.

Julie: But I'm interested to hear from you, Martin, as to what you found actually sits behind, or what you believe sits behind, that increase. So, can you tell me more about the term disability? It covers a really wide range of conditions. So, what did you find in your research in relation to that?

Martin: Yeah, so we found, really, there were like 4 types of disability discrimination claims. So the first is probably what people traditionally would think of as disability discrimination. So around physical health conditions, physical conditions, health conditions such as speech impairments, visual impairments, mobility issues, those kinds of things. And we had a huge range of disabilities. So to give you a flavour – cerebral palsy, epilepsy, fibromyalgia, spina bifida, skin conditions, all these kinds of things came up as physical.

There are also mental health conditions, which again, people are more aware of now, and so probably more likely to talk about in the workplace. So things like anxiety, depression, post traumatic stress disorder, psychosis and also panic attacks as well. A third group, which particularly related to discrimination at recruitment actually, is cognitive impairment, so related to ways of processing information, either as speech or as writing.

And finally, there were forms of neurodivergence. Again, that's something people are becoming more aware of. So we're talking here about attention deficit hyperactivity disorder (ADHD), autism, dyslexia and dyspraxia.

A few other important points, just to say as well, some people had multiple disabilities, so that might be several mental health conditions, or it might be a range of disabilities across those different types. Some people had conditions that fluctuated in severity and that therefore required a degree of flexibility around how you manage them. It's not a kind of one time, one size fits all. And other conditions were chronic, and so they required more permanent types of adjustments. So here, dyslexia and visual impairments would be a good example of that.

Julie: That's really interesting, Martin, and it really does show how complex and that I say how diverse a range of conditions we do see when we look at disability. So, when you were speaking to participants, did you find there were different points of the employment cycle where disputes would happen?

Martin: Yes, for sure, yeah. So, we found them at all points in the employment cycle – first of all, during or after recruitment. So we found recruiters who are working on behalf of employers and employers, and sometimes refuse to take account of cognitive impairments. And so there are examples where a person needed to speak rather than write for their application form, and another example where someone needed to type responses rather than speak the responses.

The second lot in the cycle was around reasonable adjustments once that person was employed. So that included failing to make them, failing to make those reasonable adjustments or implement them fully, or where claimants felt where they had a period of ill health or sickness that they were pressured into coming back to work too quickly.

However, some employers didn't think that adjustments requested were reasonable. So we have to kind of give both sides. So, an example of that was where a person working in a call centre felt that they had made mistakes and they needed more time to adjust to a new call system because they had ADHD, but the employer disagreed that that was the reason why they'd made mistakes.

Another area which is quite telling, I think, is where there's change of work conditions or a line manager, and that could lead to disputes. So, several interviewees mentioned withdrawal of hybrid or home working, which for them led to anxiety and stress and often a decline in their health. And others had found that when they had a new line manager, that new line manager could be less sympathetic or aware of how to manage their condition. So a good example was a guy who suffered from PTSD, and he asked if he could have his previous manager back because of the fact that he worked with him better and that wasn't given as a reasonable adjustment.

And finally, there's a group around in the employment cycle around how they handle complaint grievances and dismissal. So there are cases where employers probably moved too quickly to dismissal when a person became ill, or when the employee submitted a grievance that their reasonable adjustment hadn't been accepted. And so it kind of deteriorated quite quickly, the relationship.

Again, to put the side of employers though, some employers felt they had done everything they could do to make reasonable adjustments, and that the employee's performance has not improved, and so that's why they decided to go to tribunal. I'd just be interested, Julie, to hear whether that kind of chimes with your experience, and the type of advice you give to employers. Are those the kind of issues that are coming up?

Julie: You know, if we go back to what you first said around recruitment, I think, you know, a lot of employers don't think about how they can make sure that that candidate has the best candidate experience when they're coming to apply for a job at their organisation.

You see a lot of organisations will ask the question on an application form, you know, do you need reasonable adjustments? But some of the best practice we've seen for Acas is those employers that will say on the application form, is there anything you need to enable you to complete this recruitment process. But I think, you know, if employers are putting that on their application form, they also need to make sure that they, you know, somehow have a conversation before. You know, so if they've got an HR department that they have a conversation before with the candidate to find out what are the best adjustments, you know. And I've found that that tends to work a lot better to know.

It's alright as an employer you thinking, well, this is what the person wants, but in our experience, in most cases, the disabled individual knows what they want, you know, it's within reason. And I think again, you picked that up in your research. You know, sometimes it is about what's reasonable, and that differs depending on how big that organisation is or how small.

But I think for me, the most important thing is having that conversation. So, at the beginning of the recruitment process, finding out what support we can put in place. I think as well what I found really interesting when you were saying that organisations had put adjustments in place and they weren't working. Again, we heard that quite a lot at Acas and in my experience, I think sometimes organisations don't give enough time for adjustments to settle. You know, they think that, right, we've put this adjustment in place, you've had it in place for a week. That's it, so hey, your disability has disappeared. And you can work as fantastically as if you've not got that disability. And we know that's not the case. We know sometimes, you know, a reasonable adjustment can be a different way of working, and it takes time to embed and for that person to get used to how it works.

I think the other thing as well, I thought was really interesting, what you were talking about, the individual who wanted to go back to their old line manager. And again, I fully understand that, and we hear that a lot.

And one of the, again, good practices that we see at Acas is a lot of organisations now have passports. They'll call them a disability passport or a reasonable adjustment passport, and that really helps the individual and the line manager to collate all the adjustments that person requires. But then when they move to a new line manager, it helps that transition to go a bit more smoothly, and it also stops that employee having to have that conversation again with their new line manager to justify why they've got the adjustments, because we've put them in place. So yeah, there was a lot in that research that really did resonate with me.

So we've touched on when disputes could happen, Martin, but what did the research find in relation to how employers tend to handle complaints of disability discrimination?

Martin: So, we found quite considerable variation in employers and employees’ knowledge of what disability discrimination is and what reasonable adjustments are. It's larger employers, they tend to have HR departments, they might have legal departments, or they have recourse to legal consultants. And so they tend to be a bit more confident. They also sometimes have been to employment tribunal before, and they might also look at more solutions. So some of them did look at redeployment.

For smaller employers where they didn't have a dedicated HR department, or where they'd outsourced their sort of HR resource. They found it very hard to keep up with equality legislation and good practice on what are reasonable adjustments and that had tended to affect how they handled them as well.

As we've already mentioned, line managers sometimes lacked the knowledge they needed to manage people with disabilities. The knowledge still seemed to be quite contained among a group of HR professionals. So maybe there's an issue here around getting that knowledge out to line managers.

In terms of the claimants in the studies, they all represented themselves. They didn't necessarily have recourse to legal advice, so this meant they were a bit of a disadvantage compared to the employers. They would often look to family and friends who might have legal expertise. But they also turned to advice organisations, so the Equality Advisory Service, Citizens Advice, and to Acas as well. And also there was some discrimination around maternity issues as well, where people had been ill around the time of having a child. So they also went to places like Pregnant and Screwed.

Advice from previous DD claimants was really respected and valued. So people would go online to seek advice. And they also used online platforms – I don't know if you're aware of Valour, which is kind of designed to offer low-cost legal advice, so they would get it.

Sometimes people did ask legal experts, and sometimes they felt employers felt that it was the legal person that was pushing people to go to ET when really they shouldn't. So there was that side of things as well.

Claimants also didn't fully understand the legal definition of disability discrimination or reasonable adjustments. And they also didn't understand how compensation was worked out, or what realistic compensation would be. And this meant that they were sometimes a bit overconfident about how likely they were to win a case, and that would drive them on, and could also then affect how the employer responded to them.

Just to say a little bit more as well about how managers manage the different types of disability. So some said some disabilities were seen by employers as much easier to adjust to, because they required sort of practical solutions. So, good examples here would be things like dyslexia or visual impairments, where you might incorporate software for a computer that might make it easier for people to do their work.

But where there was a bit more of a lack of understanding really was around things like depression or chronic fatigue syndrome, PTSD. It was much harder for employers here to kind of really understand how they should respond, because there isn't a single way of responding. People are different, and so it requires a bit more negotiation and conversation around what a reasonable adjustment might be. And those adjustments also might be different at different times according to how that person's condition fluctuates.

I think what this really emphasises for me is the need for examples of good practice for employers about making reasonable adjustments, but also examples of reasonable adjustments that can be made for these slightly more complicated conditions. So, for things like depression, for things like ADHD, how do you respond to that when people are very different? If you think of autism spectrum disorder, for example, there's a complete range, but it requires a conversation about how that's going to work. Yep, so there’s some examples there, of how managers managed and how employees responded.

Julie: That's a really interesting point you've made at the end. Again, we get people calling us at Acas saying, have you got a list of what are the best adjustments? And you can't always have that clear list. You can have some best practice examples.

Managers and HR seem to be really comfortable when it's a physical adjustment, like you say. But when it comes to those softer adjustments, employers really struggle, and I think sometimes individuals do, you know. Sometimes the adjustments that you can put in place, the individual themselves may not want to have, because it really singles them out.

What was also interesting for me, again employers and claimants having that varying level of knowledge about what constitutes disability discrimination. It is one area we're trying to address in Acas, and we've just refreshed our reasonable adjustments guidance. We've got a suite of tips and examples, especially around mental health, that we put in place last year, because, again, like you said, that is one area that employers and you know, individuals are struggling with, to know what's the best adjustments to put in place.

For anyone listening to this podcast, who's an employer, one of the first things that you can do is make sure that your line managers are adequately trained. Sometimes it's as simple as making sure your line managers have got the capacity to have those regular one-to-one conversations. Because sometimes managers are really, really busy and they don't get the chance to have those one-to-one conversations about – is there anything that's preventing you from performing to your best? And through having that conversation, hopefully you'll pick up all the people who are struggling, because actually they need adjustments. But it also will pick up those individuals who might not think, you know, or do I fall under that category?

I think the other thing as well is that again listening to what your research has found, it's about organisations thinking about creating that culture where people feel safe to disclose. Because it's okay having all this support in place, but if you don't create an environment where your staff can feel safe to say: I'm really struggling, I've got this condition, I could really do with some help. Now, if you've not got that culture, people aren't going to speak out. They're going to carry on trying to do their best, and then it doesn't flag up until they do have a performance issue or an attendance issue.

So again, I do find it interesting that the research is saying, you know, a lot of employers are going: well, it didn't come to light until we took them down the disciplinary route. But actually, those employers might want to take a step back and go, well have we created a culture where people feel safe to disclose they have a disability? And do they have a culture where if they do disclose, they'll be supported? So I think there's a lot of guidance that we've got at Acas that can support people, but I think it's all also about organisations looking at their culture.

We spoke about both the claimants and the employers. So how did employees perceive the employer when they were handling their dispute?

Martin: Absolutely, I think that picks up on what you've just been saying, Julie, really well, because I think we get the other side of the view from the employee. So not surprisingly, the first thing is that they disagreed with the employer over their ability to do the job. So, the employees would emphasise that it was their disability or poor health that was making it harder for them to perform their job well. And they felt sometimes employers failed to understand that that was the reason they were struggling physically or mentally, and that they ended up then taking time off due to ill health.

Employers, by contrast, from the employee point of view, they felt the employers were focusing too much on sickness absences and what they saw as poor performance, too early on. Significantly I think, claimants said that they had raised reasonable adjustments, but they weren't implemented in a timely way. People said that they asked for them, but they weren't given them, or they were only implemented partially. Employers said they would discuss them, but they never got around to it. It took a very long time to get things in place, sometimes up to 6 months or more, or the employer just didn't adhere to what they had agreed consistently.

What that meant was that what was potentially a positive relationship just broke down. There was a complete breakdown in that employees felt that their employer, at that stage, just wanted to get rid of them, and so they either took out a grievance, they resigned before taking out a grievance, or were dismissed and then decided to go to employment tribunal. Significantly I think, the anger and the upset that came out of that situation meant that some people felt the only way they could get closure was to go to an employment tribunal. So, if that had been handled earlier, that wouldn't probably have happened. So that's quite a significant point. I think.

Julie: I know you touched on some of this earlier, but looking at your findings, do you believe there were other factors as to why disputes were not being resolved earlier?

Martin: Some employers and line managers still appear to have that view of a kind of perfect employee, someone who's always in good health and will always work full time in a workplace. And that means that they can sometimes be reluctant to make reasonable accommodations that would allow them to do their job. And that can sometimes mean that they become inflexible and are in danger of discriminating and breaking the law, or may not even be aware that that's what they're doing.

I've also heard managers sometimes worry that if they offer these accommodations to someone with a disability, they have to offer it to everybody, which is not necessarily the case, given that this is based on disability or health grounds.

I think the other thing we've touched on already about the length of time it takes to get reasonable adjustments in place – it creates a place for resentment. So, it would be good to try and get those reasonable adjustments sorted out quickly, rather than things lingering, and then situations getting worse. And it's possible, in some cases, that this arises, I think, because people don't quite understand what types of reasonable adjustments can be made, or what's considered reasonable, they may not be aware of good practice in how to handle them. That really leads to that kind of place where difficulties can arise.

I think the other thing that means that people kind of move too quickly to employment tribunal is that when that bad relationship develops, both employer and employee don't think that they can resolve it internally anymore. They need an independent third party to kind of oversee that. For employees, there was a sense of injustice.

For employers, there's still this kind of feeling that poor performance is the issue. They've tried to implement reasonable adjustments, and employees haven't adhered to them. Or there were some instances, for example, as I said, where it wasn't possible any longer for that person to do a manual job, for example, and so they would try to look at redeployment. But it wasn't always possible.

I should also say there was also a group of employers who really felt that they had done everything they possibly could. The issue wasn't really about disability. This had been brought in when a person had been disciplined for bad behaviour or sacked for breach of contract, for example, and so there are instances where employers felt the issue wasn't really to do with disability. It's important that employers feel confident that they know when it is and when it isn't.

Julie: I'd absolutely agree with that Martin. And I think one of the things we say to people is, you know, you can dismiss somebody who has a disability. You've just got to make sure that that's a fair dismissal, and that you've done everything possible to enable that person to perform or attend to the best of their ability, isn't it?

Martin: So overall, there was a sense, really, that employers, they are moving to dispute, to formal dispute, too quickly, and if people can try and get, rather than let things linger and carry on for a long time, to try and get to the source of the problem as quickly as possible, and sort that issue out.

Julie: Martin, do you agree that the lessons from this is that a better understanding of reasonable adjustments, improved capabilities for managers, and earlier and more informal conversations will bring about better working relationships and outcomes for everybody.

Martin: Yeah, I think so, that's definitely the case. I think one of the things you also touched on Julie, is that that needs to be a two-way conversation. Employers need to make employees feel enabled to discuss a disability or a health problem without fear that that's going to lead to discrimination or dismissal. So that is still a fear, I think, that you know, if they talk about those things, people will see it as an issue of poor performance, when actually it's trying to address their capabilities – what needs to be in place for them to work to the best of their ability, really.

Yeah, I hope the conversation we've had can help inform that a little bit for employers and employees about what they can do to try and stop these problems arising in the first place and going to employment tribunal.

Julie: Absolutely, Martin, and I think it's important to keep these conversations going and potentially make it less of a daunting thing within workplaces, but more of an open and accessible conversation that people can have. So, I'd just like to thank you Martin, for joining me on the podcast.

Martin: Thank you, it's my pleasure.

Julie: This has been the Acas podcast. For more information on disability discrimination and reasonable adjustments, visit our website at acas.org.uk. Further information is available in the episode notes. Thank you for listening.

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