
Disability harassment
The legal definition of harassment on grounds of disability, who is protected and the first steps you should take if you think you are being subjected to such harassment.
The Equality Act 2010 requires employers to make reasonable adjustments to premises or working practices to ensure that employees are not disadvantaged because of their disability.
If you have a disability which disadvantages you at work, or when you want to apply for a job, employers are obliged to make adjustments which are reasonable in order to prevent you from being placed at a substantial disadvantage compared with persons who are not disabled.
The cost of complying with the duty to make reasonable adjustments falls on your employer and not on you.
Your entitlement to reasonable adjustments is triggered whenever you are placed at a substantial disadvantage in comparison to non-disabled staff because of:
The term ‘substantial’ simply means the disadvantage complained of must be more than minor or trivial. It does not therefore carry a particularly heavy burden of proof.
You do not have to disclose your condition to be entitled to reasonable adjustments. However, if you wish your employer to make a reasonable adjustment, you will need to provide the employer – or someone acting on the employer’s behalf – with sufficient information to carry out that adjustment.
You are entitled to reasonable adjustments at all stages of the recruitment process, as well as at all stages of your employment.
You may ask for reasonable adjustments even if you haven’t yet been “diagnosed” with a disability. Your employer should not use the absence of a diagnosis as an excuse to do nothing. Once it is clear that your health has deteriorated or is deteriorating, appropriate action should be taken to address any difficulties you may be experiencing at work as a result.
Below are some other things to be mindful of when asking for reasonable adjustments:
The Equality Act 2010 defines a disability as a physical or mental impairment that has a 'substantial' and 'long-term' negative effect on your ability to do normal daily activities.
The Act defines long-term in this context as having lasted, or being likely to last for at least 12 months or the rest of the person’s life. Substantial is defined as more than minor or trivial.
Some conditions are automatically treated as a disability under the Equality Act, and these are:
There are some types of physical and mental conditions which might be treated as a disability under the Equality Act depending on the effect they have on your daily life, for example:
Some conditions aren't covered by the disability definition. These include addiction to non–prescribed drugs or alcohol. To find out about the conditions which aren't covered, download the Equality Act guidance.
The Equality Act sets out three things employers may have to do to remove the barriers you face because of your disability:
Employers may have a certain way of doing things which disadvantages you if you’re disabled. The Equality Act calls these provisions, criteria or practices (PCPs). It's important to think carefully about what provision, criteria or practice is causing the disadvantage because this will affect the adjustment the employer has to make.
You are required by law to compare your treatment to that of staff who are not disabled (these can be hypothetical staff) so that it may be ascertained whether the disadvantage of which you complain arises from disability, or for some other reason unrelated to disability.
Examples of adjustments to PCPs that could be made are:
Physical features include, but are not limited to steps, stairways, kerbs, exterior surfaces and paving, parking areas, building entrances and exits, internal and external doors, gates, toilet and washing facilities, lighting and ventilation, lifts and escalators, floor coverings and signs.
Example adjustment to premises in schools can include the following:
The third requirement involves providing extra equipment (which equality law calls an auxiliary aid) or getting someone to do something to assist you (which equality law calls an auxiliary service).
Examples of auxiliary aids and services may include:
Your employer is entitled to take the following factors into account when considering the reasonableness or otherwise of an adjustment:-
Your employer must be prepared to justify its reliance on any of the factors highlighted above if it is refusing to make reasonable adjustments.
Access to work is a Government grant scheme which supports disabled people and their employers to overcome barriers in work.
As well as giving advice and information to disabled people and employers, Access to Work may pay a grant, through Jobcentre Plus, towards any extra employment costs which result from adaptations to the workplace.
For example, it can help pay for:
It will be for you to contact Access to Work, although your employer can help facilitate that process. The Union can also assist.
Apply online via the Access to Work website or contact the central helpline on 0345 268 8489 (text phone: 0345 608 8753).
Your GP should provide your employer with a Fit Note if you are assessed as either unfit for work, or as fit for work subject to support from your employer.
Since most GPs will not have the requisite occupational health expertise to devise a return-to-work plan especially adapted to your needs, you should not look to your GP to help you make the case for reasonable adjustments.
A Fit Note allows your GP to indicate the kind of general adaptations that might help your return to work, but this will help to give your employer only a broad idea of the changes to be discussed with you, your NEU rep and, where appropriate, your employer’s occupational health adviser.
If the GP completing the form believes that a referral to an occupational health specialist would be beneficial, they can write this in the comments box on the Fit Note form. Your GP may choose to make such a recommendation where your case is complex or where your ill-health is work related.
Guidance from the DfE encourages your employer to make a referral to occupational health whenever there is concern about your health or physical capacity to carry out specified teaching activities.
This concern will be triggered either by incidents at school/college, short-term and intermittent sickness absences or, in most cases, by long-term sickness absence. It is good practice for any employee to be referred to occupational health in such circumstances.
It is important to remember that occupational health professionals are engaged by your employer and not by you. Their primary purpose is to provide your employer with advice about the likely risks presented by your health condition and how any identified risks may be managed.
Despite this, it is always a good idea to discuss with the occupational health professional
If you are on long-term sickness absence for a disability related reason, most teachers are subject to the occupational sick pay scheme operating in the Burgundy Book or to similar provisions.
Support staff are not covered by the provisions of the Burgundy Book; but may be entitled to an occupational sick pay scheme either under the relevant Green Book provisions (collective agreements applying to local authority employees) or their own contracts of employment.
If you are absent from work because you are waiting for adaptations to be made to your workplace you should not be placed on sick leave, or suffer a diminution in pay. In such circumstances you should be placed on medical suspension on full-pay or redeployed to work in an appropriate environment until such time as your regular place of work is made safe for you to start or return.
If you are on a phased return to work there is no automatic entitlement to full pay. Whether or not full pay is a reasonable adjustment for an employer to make will depend, as always, on the circumstances. However, even if your employer decides that it can pay you only for the days when you actually work, any outstanding occupational and or statutory sick pay may be used to top-up your earnings during your period of phased return.
DfE guidance requires pay policies to make it clear how teachers on long-term leave will be treated in relation to pay progression.
For permanent teachers in schools, the appraisal cycle will normally run for 12 months from September to August. You should not be denied pay progression because you have been absent on sick leave during some or all of this time. This is equally true for members of support staff.
It is the Union’s view that where you have been absent through long-term illness, your principal/head teacher should ensure that a performance review is conducted during the relevant appraisal cycle. In the event that a review cannot be conducted until you return to work, your principal/head teacher should conduct a review as soon as possible following your return.
Your employer has a number of options for the kinds of reasonable adjustments that can be made to its pay policy depending on the nature of the disadvantage caused.
For example, your employer may rely on your performance during your last appraisal cycle as the basis for a pay award, or alternatively consider using a different and/or shorter time period as the reference period for assessing pay. If you have already completed two out of three observations satisfactorily, for example, it is likely to be reasonable not to require you to complete the third in order to receive a pay award.