The Equality Act 2010 defines a disabled person as someone with a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Most employers are already employing people who would be covered by this definition, whether or not they realise it and whether or not the person chooses to use the term ‘disabled’ about themselves. In fact these people may be amongst the best employees and applicants for jobs. The legal definition of disability is much broader than is generally thought, and most people acquire a disability or health condition rather than being born with one. This means that most employers will encounter people who develop a disability or health condition while in work. Examples of disability include cancer, diabetes, multiple sclerosis and heart conditions; hearing or sight impairments or a significant mobility difficulty; and mental health conditions or learning difficulties. People in these circumstances and some others (such as people with a facial disfigurement) are likely to have rights under the Equality Act 2010 to protect them from discrimination, including pay discrimination.
Only the courts can say if a particular individual meets the definition of disability under the legislation, but it is advisable to address disability as part of a wider diversity strategy, focusing not on medical models of disability, but instead on the social model. The social model is based on an understanding that functional limitations arising from disabled people’s impairments do not inevitably restrict their ability. Rather than the limitations of impairments, it is often environmental factors (such an employer’s working practices) which lead to these restrictions.
In the context of pay, the Equality Act 2010 states that it is unlawful for an employer to discriminate against a disabled person:
For more on the Equality Act and employment, see the Employment Code of Practice
In addition, public sector employers are covered by the Disability Equality Duty. This duty will be replaced by the new public sector equality duty, which covers disability along with gender, race, age, sexual orientation and religion or belief, and is due to come into force in April 2011. MFor more information see The new Public Sector Equality Duty.
One of the existing duty’s aims is to remove the barriers disabled people face in finding employment and fulfilling their potential as employees. In the context of pay, when considering the duty, public authority employers will need to look particularly carefully at: training, appraisal, occupational health, and payroll systems.
There is also a set of specific duties designed to help authorities fulfil the general duty. These specific duties are framed by the production of a Disability Equality Scheme. For more on the Disability Equality Duty see General guidance.
It’s important to note, however, that whilst the duty covers public sector employers, the areas that it deals with are also relevant to employers in the private sector, who need to comply with the provisions set out in the Equality Act 2010.
Evidence shows that some disabled employees experience a significant pay gap when compared to non disabled employees. In addition, disabled women suffer from a gender pay gap, and earn less than disabled men. Estimates of the disabled hourly pay gap vary from six to 26 per cent (this variation is due to the use of different data sources and definitions of disability). Recent research has found that when compared to non disabled men, disabled men have a pay gap of 11%, and disabled women of 22%.
Research highlights a range of reasons behind pay gaps on the grounds of disability, which originate from a broader social context than the particular job that a disabled person is in. But pay gaps by disability are often the product of workplace discrimination. This discrimination may be direct in nature, for example:
Other problems may arise from indirect discrimination, for example:
Criteria and restrictions like these will also affect employees who are the carers of disabled people. This group also suffers a pay penalty, which is especially severe for female carers.
The other guidance notes in this equal pay in practice series set out a number of actions you can take to ensure your pay system is fair and transparent.
Disabled employees should be treated in the same way as other employees in terms of salary, performance related pay schemes and any other employment related benefits. But you should review all existing terms and conditions to ensure that these are not likely to discriminate on grounds of disability. Some key areas to examine include appraisal systems, sick leave, performance related pay, employment benefits, occupational pensions and group insurance services.
Disabled employees and carers of disabled people may be more likely to benefit from flexibility at work and, along with a range of other groups of employees, less likely to be able to meet with performance related criteria based on presenteeism and long hour’s cultures. Therefore it is important to consider how your pay system can avoid de-incentivising flexibility and rewarding more fully those employees who don’t require it.
Where the terms and conditions of employment include an element of performance related pay, you should make sure they don’t discriminate against disabled employees. If an employee is denied the opportunity to receive performance related pay on the ground of disability, this is likely to be direct discrimination. Even if this less favourable treatment is not directly discriminatory, it will amount to disability related discrimination unless the employer can show that it’s justified. It shouldn’t be assumed that all disabled employees will not be able to meet targets, but if an employee has a disability that lowers his or her rate of output, you should explore whether it’s possible to make reasonable adjustments to overcome this before you reduce the employee’s earnings under performance related pay schemes.
A disabled man with arthritis works in telephone sales and is paid commission on the value of his sales. Because of a worsening of his impairment he is advised to switch to new computer equipment. This equipment slows his work down for a period of time while he gets used to it and consequently the value of his sales falls. It is likely to be a reasonable adjustment for his employer to continue to pay him his previous level of commission for the period in which he adjusts to the new equipment.
The duty to make reasonable adjustments also applies to the manner in which employers make occupational pensions available to disabled employees.
A person with multiple sclerosis completes the first six months of her employment. After this period the employer usually writes to employees inviting them to join the pension scheme. But the employer is worried that the disabled employee may draw early on the pension scheme and so does not invite her to join. This is likely to be unlawful.
It’s a good idea to monitor and review pay systems on a regular basis to ensure that disabled people don’t receive lower average awards. You should also bear reasonable adjustments in mind throughout the performance and appraisal process, giving employees the opportunity within the appraisal system to notify you in confidence if they are disabled and are put at a substantial disadvantage by the working arrangements or premises.
It’s also important to consider how you can effectively retain disabled employees, providing a working culture and conditions that encourage retention through making reasonable adjustments, and allow employees to develop and progress, thereby improving their earnings capabilities. Arrangements for promoting staff or for transferring staff between jobs must not discriminate against disabled employees, and communication about training and promotion opportunities should be accessible to everyone. Reasonable adjustments may need to be made to the various stages in the promotion or transfer process.
Having workplace equality policies in place will help you to check that qualifications required for promotion or transfer are justified for the job to be done, and to monitor the systems used to determine criteria for a particular job so that they do not exclude disabled people who may be unable to meet those criteria because of their disability but who would be capable of performing well in the job. You may then wish to consider redesigning job roles to make positions more accessible to disabled people.
When determining what adjustments to make to facilitate the employment of a disabled person, a range of advice and assistance is available from Jobcentre Plus through the Access to Work scheme. The scheme provides practical support to disabled people in, or entering, paid employment to help overcome work related obstacles resulting from disability. Access to Work can provide a grant towards additional employment costs, helping you to take steps which would otherwise be unreasonably expensive.
Organisations that actively recruit and support disabled employees and those with health conditions tend to have good people management systems. They retain expertise and skills, improve staff morale and enhance their public reputation. Research has shown that when disability and health are properly managed, disabled employees tend to take less sick leave than their non-disabled colleagues and stay with employers for longer. The cost of keeping a disabled employee by making reasonable adjustments will almost always cost far less than having to recruit and train a new employee.
Considering and taking action on all of the issues discussed above will help to ensure that disabled employees are able to maximise their earnings opportunities and will help to promote and provide equal pay.
Whilst every effort has been made to ensure that the advice given in this note is accurate, only the courts and tribunals can give authoritative interpretations of the law.
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References
Longhi, S and Platt, L. (2008) Pay Gaps Across Equalities Areas, EHRC
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