The Equality Act 2010 makes it unlawful to discriminate against employees (including workers) because of a mental or physical disability.
View or download the new Acas guide Disability discrimination: key points for the workplace [601kb].
- Capability issues often get linked to an employee's health. In this case you should try to help them perform their job before you dismiss them. Acas recommend including examples of misconduct in your company disciplinary rules. But, different procedures for taking disciplinary action will get individualised for different circumstances.
- A 'wrongful dismissal' is when an employer has breached an employee's contract. It's usually to do with notice or notice pay. Examples of wrongful dismissal can include: dismissing an employee without giving them a notice period or notice pay.
- 6.5 Third Capability Hearing: Dismissal or Other Sanction If your performance has not improved by the date of expiry of the review period set out in a final written warning, or if there is evidence.
- The outcome may be dismissal which the employee can appeal and potentially bring a tribunal claim in which case all records will be required. The capability process must be fair and transparent and, where the employer does not have a written policy and procedure, it is advisable to follow the Acas Code of Practice for Discipline and Grievance.
You can also download our Disability discrimination: obligations for employers [64kb] fact sheet and The top ten myths about disability in the workplace [15kb].
Key disability discrimination points
Acas Capability Dismissal Rules
Significant improvements will be required in the management of performance and capability issues if unfair dismissal, age and disability discrimination claims are to be avoided. Resources for performance dismissals Letter to an employee confirming his or her dismissal for poor performance during a probationary period.
- Under the Equality Act 2010 a person is disabled if they have a physical or mental impairment which has a substantially adverse and long-term effect on their ability to carry out normal day-to-day activities. In the workplace such activities are taken to include things like using a telephone or computer, interacting with colleagues, following instructions, driving and carrying everyday objects.
- The Equality Act 2010 provides disabled people with protection from discrimination in a range of areas, including employment.
There are four main types of disability discrimination.
Direct discrimination
Is when someone is treated differently and not as well as other people because of disability. For example, an employer does not employ a disabled person just because it does not want disabled people in its workforce.
It breaks down into three different sorts of treating someone 'less favourably' because of:
- their own disability (ordinary direct discrimination)
- a perceived disability (direct discrimination by perception)
- their association with someone who is disabled (direct discrimination by association).
Indirect discrimination
Can occur where a workplace rule, practice or procedure is applied to all employees, but disadvantages those who are disabled. A disabled employee or job applicant claiming indirect discrimination must show how they have been personally disadvantaged, as well as how the discrimination has or would disadvantage other disabled employees or job candidates.
In some limited circumstances, indirect discrimination may be justified if it is necessary for the business to work. For example, an employer may reject an applicant with a severe back problem where heavy manual lifting is an essential part of the job.
Harassment
When unwanted conduct related to a person's disability causes a distressing, humiliating or offensive environment for that person.
Victimisation
Treating someone unfairly because they have made or supported a complaint about disability discrimination.
Also, there are two other types of discrimination regarding disability.
Discrimination arising from disability
Where someone is treated 'unfavourably' because of something linked to their disability, but not because of the disability itself. The disabled person claiming this type of discrimination does not have to compare their treatment to how someone else is treated.
Failure to make 'reasonable adjustments'
An employer failing to make 'reasonable adjustments' for a disabled job applicant or employee is one of the most common types of disability discrimination. If adjustments are 'reasonable', an employer must make them to ensure its workplace or practices do not disadvantage a disabled job applicant or employee already with the organisation.
Can occur where a workplace rule, practice or procedure is applied to all employees, but disadvantages those who are disabled. A disabled employee or job applicant claiming indirect discrimination must show how they have been personally disadvantaged, as well as how the discrimination has or would disadvantage other disabled employees or job candidates.
In some limited circumstances, indirect discrimination may be justified if it is necessary for the business to work. For example, an employer may reject an applicant with a severe back problem where heavy manual lifting is an essential part of the job.
Harassment
When unwanted conduct related to a person's disability causes a distressing, humiliating or offensive environment for that person.
Victimisation
Treating someone unfairly because they have made or supported a complaint about disability discrimination.
Also, there are two other types of discrimination regarding disability.
Discrimination arising from disability
Where someone is treated 'unfavourably' because of something linked to their disability, but not because of the disability itself. The disabled person claiming this type of discrimination does not have to compare their treatment to how someone else is treated.
Failure to make 'reasonable adjustments'
An employer failing to make 'reasonable adjustments' for a disabled job applicant or employee is one of the most common types of disability discrimination. If adjustments are 'reasonable', an employer must make them to ensure its workplace or practices do not disadvantage a disabled job applicant or employee already with the organisation.
Employers should ensure they have rules in place to prevent disability discrimination in:
- recruitment and selection
- determining pay, terms and conditions
- sickness absence
- training and development
- promotion
- dismissal
- redundancy.
If a workplace feature or practice puts an employee with a disability at a disadvantage, an employer should look to see what 'reasonable adjustments' it can make and meet with them to discuss what can be done to help them. For example, this could be as simple as supplying a special chair or power-assisted piece of equipment. Reasonable adjustments might also include changing some of the employee's duties, but an employer does not have to change functions essential to the role.
Court rulings on obesity
There have been several court cases in the UK and Europe, and it is now accepted that obesity itself is not a disability. However, where obesity causes an impairment which is substantially adverse and long-term, that impairment might be regarded as a disability by an employment tribunal.
Both employers and employees should bear firmly in mind that whether a condition related to obesity is likely to amount to a disability will depend on all the particular circumstances of the individual case.
Nevertheless, employers need to ensure obese employees are not subjected to offensive comments or behaviour because of their weight and that obese job applicants are not discriminated against because of their weight.
Making a claim for discrimination if you're disabled
If an employee feels they been discriminated against, they will be able to bring a claim to an employment tribunal. However, it's best they talk to their employer first to try to sort out the matter informally.
Further information is available from Ministry of Justice - Employment Tribunal guidance.
Through the Acas Helpline you can get advice on specific problems, and explore alternatives to an employment tribunal claim, such as Mediation, where appropriate.
Protected characteristics video
This video introduces and explains the nine protected characteristics.
Acas training and business support
Acas offers practical Training Courses, Workshops and Projects to equip managers, supervisors and HR professionals with the necessary skills to deal with employment relations issues. Specifically we help employers understand more about employee rights, disability rights, definitions used within the law including the Equality Act 2010. We provide best practice and can work with you to help make the workplace a fairer and more productive environment.
Click to view related Acas training and course dates in your area for Equality, diversity and the Equality Act 2010.
Acas Capability Dismissal Meaning
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Further information
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Acas Capability Dismissal Vs
Acas Publications
Acas Capability Dismissal Letter
- Equality and discrimination: understand the basics pdf [331kb]This guide outlines the basics of what employers of all sizes, managers, employees and their representatives must and should do to make their workplaces a fair environment and comply with equality legislation.
- Prevent discrimination: support equality pdf [404kb]This guide is helpful for employers, managers, employee representatives and employees in their role in promoting equality and diversity, and preventing discrimination.
- Discrimination: what to do if it happens pdf [335kb]This guide outlines the basics of what employers of all sizes, managers, and employees and their representatives must and should do when discrimination happens or is alleged within the workplace.
- Disability discrimination: key points for the workplace pdf [601kb]This guide outlines steps to prevent disability discrimination in the workplace.
- Disability discrimination: obligations for employers pdf [64kb]This document outlines some of the key obligations employers have in this area.
