Some of these characteristics are ones we are used to; disability, age, race, religion, sex and sexual orientation. Of those, two of them have been particularly expanded; race and religion. Race discrimination, under the Equalities Act, relates to colour, nationality, and ethnic and national origin. So whereby we may have considered race discrimination to be focused on the colour of someones skin, it now covers a much wider range which serves to protect many more people than ever before. Religion covers more than just recognised religions, it also includes beliefs. The biggest change here is that it also protects those who have no beliefs or religious affiliation. This is a big deal as, for the first time, no one is excluded from protection. Where the law provides a positive protection, it also protects those that are not covered by a particular protection.
There are 4 characteristics that you might not consider traditionally associated with discrimination law. The Act seeks to prevent discrimination based on someones marital status, the fact they are pregnant (or having a baby, which includes those adopting), or that they are living as, or becoming, a transexual. The latter previously not been protected by law.
The Odd One Out
However great i think the Equalities Act is, there is one characteristic that i think is anomalous; disability. In my opinion, disability presents both the employee and the employer with particular difficulties that result in it being the most vulnerable to abuse by an employer. The rest of this blog post will look at disability discrimination and why i think you should be very careful who you declare a disability to.
My Discrimination Experience
Here is an example from my personal experience. I have a disability that meets the definition in the Act. While i was employed by Thames Valley Police in one of their control rooms i was being treated for a condition that meant i may have had to have an operation that would have had a long recovery period. I made the mistake of telling my supervisor that i had an operation on the horizon, and from that point on i was treated very differently by her and the HR department.
I found that all of a sudden i would find i was being watched closely, and several minor misdemeanours were being documented. On one occasion, for example, was when i wore a plain black fleece over my uniform because my condition would result in high temperatures that would mean i was very cold on occasion. They extended my probation period after this incident, which meant the operation i had told them about would happen when i was still inside my newly extended probation period. While i was recovering from the operation at home a Sgt visited me and gave me a letter that told me that they intended to terminate my employment. The date of termination was 364 days after i was first employed, one day before my probation period ended, meaning they did not need to give me an explanation, nor did i have full employment rights. I appealed and lost, and due to my condition i was unable to find another job in order to fund a tribunal.
My situation highlights how difficult it is to identify the employers true motives. Apart from the timing of the start of the discrimination, and the termination of my employment, there was no other substantive evidence. I was put in an impossible position while they sought to document whenever i was late, and all sorts of comments made clearly in jest were used to show how terrible an employee i apparently was.
Playing The Disability Card
Now as an outsider looking in, you are going to wonder if i am telling you the whole story. Am i playing the disability card in order to make them the 'bad guy'? After all, i have that card to play and when on the brink of losing a job i would be stupid not to play it, right? Herein lies the difficulty of discrimination. No employer is going to fire someone because they had an operation coming up, however the future economic impact of that disability might result in the employer seeking other reasons to get rid of an employee. It is the economic consequences for the business that i think make disability discrimination impossible to eliminate. An employees disability has a direct and clear, yet unqualifiable and potentially endless, economic impact on the employer due to periods of sickness. You can't say that about the rest of the characteristics which, although may have some associated periods of sick leave, have much more certain consequences to the business.
The employer finds themselves in a very difficult position. If someone is having a lot of periods of sickness, disability related or not, the line has to be drawn somewhere. The law allows for someone to be dismissed on health grounds. However this is a grey area. How many sick days should someone be 'allowed' before the person should be dismissed? It's an impossible question to answer because every disability is different and you can't measure one person against another. An employer cannot say that because Employee A has 10 days off sick a year, that Employee B with the same condition should be dismissed if they exceed 10 days.
Why Employers Will Steer Well Clear
This grey area makes dismissing an employee with a recognised disability very difficult for the employer. I would go so far as to say that an employer would avoid at all costs attempting to discipline someone on these grounds as they may end up being found in breach of the Equality Act because they discriminated against the employee. However an employer will always want to make sure they are getting the best value from their employees, and where an employee becomes economically untenable due to sickness they are going to feel a lot of pressure to deal with it. You can't discipline someone with a disability due to sickness because that suggests that the employee has some sort of control over their disability, which is not always the case…it is often beyond the control of the individual. Taking an employee with a disability through a disciplinary process for sickness would be counter productive because a disability doesn't respond to the will of the individual, or their employer.
Employer Held Hostage
So if you have an employee that is having excessive sick days due to a disability, how willyou ever be able to deal with it? Im many ways, the employer is held hostage by the Equality Act. The simple way is finding another reason dismiss the employee. The direct economic conflict with disability is why i think that this protected characteristic is the odd one out. Where an employer is backed into a corner, they will get creative to save the business money.
How can we solve it? More protection will result in a higher economic burden, less protection will result in more discrimination. It is an impossible position for both the employee and employer.
What Should You Tell Your Employer?
I have a disability, and i am good at my job. I have very few days off sick due to my disability, and i am a valued part of the organisation. But should i end up having lots of days off sick due to my disability, i might find that my good work performance becomes irrelevant. So from my experience there is a massive risk of admitting you have a disability. I would encourage everyone to declare their disability on application forms because the law ensures that information about disabilities is dealt with separately from the decision making about giving you the job. However be very careful what you tell the managers you work with on a daily basis, because once you have the job, you have less disability protection than you did when you were applying.
I am proud of what i have achieved despite my disability, but i have often had to suffer in silence in order to protect myself from discrimination. This is surely not what the writers of the Equality Act had in mind.