Who is protected from disability discrimination?
All disabled teachers and educational professionals have specific protection from discrimination at work on grounds of disability if their disability is covered by the Equality Act 2010. The Act defines a disability as a physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. However, anyone who has HIV, cancer or multiple sclerosis is automatically treated as disabled, as is anyone who is registered blind or partially sighted. For the purposes of the Equality Act:
- ‘substantial’ means neither minor nor trivial
- ‘long-term’ means that the effect of the impairment has lasted or is likely to last for at least 12 months; or is likely to last for the rest of the life of the person affected; or has not lasted 12 months, but is likely to recur
- ‘normal day-to-day activities’ may include walking, climbing stairs, washing, shopping or any activity (both mental and physical) which most people engage in regularly, if not daily.
You are protected whether you are permanent, fixed-term, full-time, part-time, supply or agency.
Your colleagues, managers and governors are prohibited from discriminating against you. If you are an agency worker on a day-to-day or longer term contract, your agency and the hirers for whom you are working are prohibited from discriminating against you.
What is disability discrimination?
Treating you less favourably than another colleague on grounds of your particular disability would be direct disability discrimination. The term ‘less favourable treatment’ requires a comparison to be made between your treatment and the treatment of someone (real or hypothetical) who does not have a disability, but whose circumstances are otherwise the same as yours.
Association or perception discrimination
It would also be a form of direct disability discrimination to treat you less favourably than another colleague on grounds that you associate with a disabled person or people, or because you are perceived to be disabled even if you are not.
Discrimination arising from disability
Treating you unfavourably because of something connected with your disability is a form of discrimination known as ‘discrimination arising from disability’. Unlike the term less favourable treatment, ‘unfavourable treatment’ does not require a comparison to be made between your treatment and the treatment of someone who is not disabled. It is enough to be put at a disadvantage for something arising in consequence of your disability. For example, if you are dismissed on grounds of incapability because you have been absent from work for six months with a disability-related illness, it will not be enough for your employer to say that an employee who is not disabled, but who has been absent for six months, would also be dismissed.
A workplace policy or practice which applies equally to everyone, but which places a greater proportion of disabled staff at a disadvantage and places you at a particular disadvantage, will amount to indirect discrimination unless your employer can justify the policy or practice complained of.
Failure to make reasonable adjustments
Employers have a duty to take reasonable steps to remove or ameliorate barriers in the workplace which place disabled workers (including prospective workers) at a substantial disadvantage. Your employer cannot justify a failure to make reasonable adjustments. It should be noted that employers are not required to take any and all steps which would remove disadvantage, but only those steps which are reasonable. What is ‘reasonable’ will depend on the circumstances in each case.
When am I protected from disability discrimination?
You are protected from disability discrimination before, during and after your employment. There should be no unlawful discrimination in recruitment including advertisements, shortlisting and interview procedures; pay, including pensions; terms and conditions of employment; access to training; opportunities for promotion; transfers; dismissals; and after your employment has ended, eg in the provision of references.
What sort of treatment is covered?
Treatment that is directly or indirectly related to your disability is covered. For example, if a teacher who has had bouts of clinical depression in the past applies for a promotion as head of department in their school and the selection panel refuse to appoint them because of their medical history, this is likely to be unlawful unless the panel has more than anecdotal or unsubstantiated evidence that they are unfit for the role. In any event, the Equality Act prohibits employers and prospective employers from asking candidates about their health prior to appointment, so that matters relating to a teacher’s fitness to teach should not be raised until after the individual has been appointed subject to an assessment of their fitness to teach.
Furthermore, subjecting a teacher or educational professional to verbal or physical disability harassment in the workplace is unlawful. The union has produced a separate factsheet, Disability Harassment (see below).
What sort of treatment is not covered?
Treatment that has nothing to do with your disability, which the employer can show is wholly and genuinely for a non-discriminatory reason, would not be unlawful. Treatment that you might feel is unfair will not necessarily be discriminatory.
Where a disabled worker is selected for redundancy, for example, and their selection is not directly or indirectly related to their disability, the mere fact that they are disabled will not be enough to make their selection unlawful. To be unlawful, the treatment complained of (ie selection for redundancy) must relate to their disability.
What should I do if I think that I have been discriminated against?
Gather all the written evidence that you have, for example, job adverts, letters, emails and relevant screenshots. Keep a diary of all incidents of less favourable treatment including dates, times, places, the names of any witnesses and your response to the conduct or behaviour.
It is not always immediately clear whether a step has been taken because of your disability or for some other genuine reason, so it is sensible to record all the treatment you are concerned about. An employer may or may not intend to discriminate against you or may try to cover up discrimination against you. The employer should work with the union to find out the real reason for the treatment, to stop the treatment if it is discriminatory and to secure appropriate action, for example, to obtain a full written apology or to secure a pay award that you have been denied.
Ask your workplace rep or school or college office for copies of relevant workplace policies, for example, pay policies, capability procedures, redundancy policies. The union urges all employers to adopt policies and procedures which prohibit unlawful discrimination and which allow employers to identify and tackle any discrimination fairly and quickly.
Discuss your concerns with your workplace rep. Your colleagues may have made similar complaints and you may be advised to tackle the issue with them collectively.
You or your rep might decide to contact the NEU for further advice. The union will be able to advise what steps you should take. You may be advised to lodge a formal grievance or to lodge a collective grievance with your colleagues. This may resolve the issue. In rare cases you may be advised to take the matter to an employment tribunal. The objective in all cases will be to stop any discrimination and allow you to continue working in a professional environment free from discrimination.
What if the discrimination or harassment has made me ill?
Follow the advice in the previous answer on gathering information and seeking advice. Keep a record of how you believe discriminatory treatment or harassment has affected your health, eg your symptoms and any absences from work. You are advised to see your GP and to let your employer know in writing that the treatment at work is affecting your health. The union can help you write this letter. If you believe that the stress of discrimination or harassment at work has led to depression, an anxiety disorder or psychosis, you may be suffering from a recognised psychiatric illness. If so, you should seek immediate advice from the union. See contact details at the end of this factsheet.
What should my employer or agency do if I complain about discrimination?
Your employer or agency should investigate your complaint, take appropriate action to stop any discrimination, put you in the position as if you had not been discriminated against and prevent it from happening again to you or someone else. In addition, local authority and governing body employers have a public sector equality duty to promote equality of opportunity and eliminate discrimination. Agencies that sign up to local authority and governing body equal opportunities policies may also be obliged to take proactive steps to eliminate discrimination.
What if the employer treats me worse after I have raised the issue?
Your employer must not subject you to detrimental treatment in retaliation or as punishment for raising a complaint of discrimination. Such treatment is called 'victimisation' and is prohibited by the Equality Act.
What more can I do to protect myself and colleagues from discrimination at work?
Employers in the education sector have a statutory duty to be proactive in eliminating discrimination and promoting equality of opportunity for staff and pupils. They must assess the impact of their policies and procedures on the people affected by them and take steps to remove any barriers that come to light where it is proportionate to do so. Contact your workplace rep, division secretary or local equality officer if you want to get involved in reviewing the equality impact of policies and procedures in your workplace.
Make sure that you receive information about NEU equality events and conferences and about the equality constituency seat elections for the national executive. If you have not told the union about your ethnicity, sexual orientation or disability status, you may miss out on important information. Update your membership details to ensure you are fully informed. The information that you provide will remain strictly confidential. The data will form the basis of anonymous statistical reports which will help identify trends in workplaces and barriers to participation in the union's structures.
You are not alone in this union
When you read through this document you may have questions about what happens in your particular school or workplace, and there may be collective issues that affect other members. In most circumstances, you should initially discuss the matter with your workplace rep, as they will know whether similar concerns have been raised by other members. If you do not have a rep at the moment, it would be a good idea to get members together to elect one. Further advice on this is available at: neu.org.uk/becoming-a-rep
Although you may sometimes feel that you are the only person affected by or concerned about a particular issue, in reality this is seldom the case. Any difficulties you may experience are likely to be linked to wider conditions at your workplace and as a member of the NEU you have the advantage of being able to act collectively with your colleagues. This should give you the confidence of knowing that you have the weight of the union behind you.
Equality and Human Rights Commission (EHRC)
Information on disability equality
Advisory, Conciliation and Arbitration Service (ACAS)
Guidance on equality and discrimination