The Equality Act 2010 and employment Employers have a range of legal duties towards their autistic employees. These legal duties can be found in the Equality Act 2010. This information is not intended to be a comprehensive overview of how the Equality Act 2010 works in the role of employment. Rather, it looks specifically at how the rights and duties stated in the Equality Act 2010 apply to autistic employees, job applicants, their workplaces and employers. Expand The Equality Act 2010 is relevant for all employers in the process of hiring and managing autistic people. It applies across England, Wales and Scotland. There is different legislation in Northern Ireland, but the protections for disabled people and duties on employers are broadly the same and the practical information provided here applies across the UK. For a general overview of how the Equality Act operates in employment, the Equality and Human Rights Commission has both summary guidance and the Employment Statutory Code of Practice. The Equality Act 2010 identifies nine specific “protected characteristics”, including disability. The Act details types of prohibited conduct as well as establishes the context in which such conduct might occur. For our purposes, we will discuss only the Act’s treatment of autism within the context of employment and management. It is important to note that although the Equality Act 2010 defines autism as a disability, an autistic individual may not necessarily define themselves as such. For businesses and organisations that provide services and public functions, education and transportation, as well as for landlords and associations there are wider duties defined by the Equality Act 2010. Those duties are not covered in detail here, but improving recruitment, employment, and support for autistic staff will help facilitate an understanding of how to meet the needs of all autistic people, be they customers, service recipients, students, members or tenants. Disability in the Equality Act 2010 There is a specific definition of disability in the Equality Act. This is important because it covers people who may not consider themselves disabled or who don’t call themselves a disabled person. The legal definition of disability is objective. It is a matter of fact whether a person is a disabled person according to the Equality Act 2010. One thing that sets disability discrimination apart from other types of discrimination is that it is asymmetrical. Race and sex-based discrimination, for example, are symmetrical in that it is equally unlawful to discriminate against a man or white person for their gender or skin colour as it is to discriminate against a woman or person of colour. Conversely, a non-disabled person cannot claim to be the victim of disability discrimination because a disabled person has been treated more favourably than them. In fact, the Equality Act 2010 states that under certain circumstances an employer must treat a disabled person more favourably than a non-disabled person. The definition of a disability in the Equality Act 2010 is as follows: Section 6 Disability (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. Note: “substantial” here means “more than minor or trivial”, which is a lower standard than would be expected in the common use of the word substantial.
Autism, disability and health Whether an individual autistic person is also legally disabled will depend on whether that individual’s autism has more than minor or trivial “adverse effect” on their ability to carry out normal day to day activities. Expand Under the Equality Act 2010, autism is a lifelong “mental impairment”. However, this term is not often used by autistic people themselves, and is best avoided in communication with or about autistic employees and applicants. The definition of disability in the Equality Act 2010 disregards the benefit provided by any medications, treatments, or aids. For example, a condition that causes pain would be measured as if no painkillers were taken. It is reasonable to assume that an employee who tells you they are autistic is likely to be disabled for the Equality Act. They have identified that they face difficulties in certain areas of their life, often including sensory and verbal processing, ambiguous communication and /or understanding implied social expectations all of which are involved in carrying out normal day to day activities. Assuming your autistic employee is a disabled person under the Act means you can make the right adjustments and get the best out of your autistic employee, and the rest of your workforce Autism and mental health Autism itself is not a mental health problem, but a neurological difference. However, autistic people may also have mental health problems, which could well be disabilities in their own right under the Act. If you make the required reasonable adjustments for your autistic staff, it is likely to have a positive impact on their mental health. Conversely failure to make reasonable adjustments for autism may trigger or exacerbate mental health problems. The charity Mind provides resources on looking after the mental health of your staff. Autism and physical health Autistic people are known to have higher than average rates of a number of rare physical conditions. These could amount to disabilities in their own right under the Equality Act. Ehlers Danlos Syndrome, Hypermobility Syndrome, Fibromyalgia and ME / Chronic Fatigue syndrome are among the physical conditions more commonly diagnosed in autistic people than non-autistic people. These conditions have common symptoms in that they can cause chronic pain and fatigue, both of which can be exacerbated by stress.
Discrimination and prohibited conduct within the Equality Act 2010 Prohibited conduct within the Equality Act encompasses discrimination, harassment and victimisation. Expand The Equality Act 2010 makes it unlawful for employers to treat a disabled person badly because of something connected to their disability unless it can be justified. An employer will not be able to justify any unfavourable treatment if reasonable adjustments have not been made The scope of this kind of discrimination is particularly relevant for autistic employees because of the possibility for misunderstandings due to differences in communication and behaviour. The way autistic people communicate, understand the world around them, process language, interact with others or understand an instruction can all be something arising from autism, and so any unfavourable treatment for these reasons would need to be justified to avoid being unlawful. Direct Discrimination Direct discrimination is what most people think of when they talk about discrimination, where a disabled person is treated less favourably than a non-disabled person because they are a disabled person There is no possible legal defence to direct discrimination, so it is unlawful to treat an autistic person less favourably than a non-autistic person because they are autistic. Direct discrimination covers situations where deliberate malice or prejudice toward disabled or autistic people leads to less favourable treatment, but it goes wider than just discriminatory intent. Direct discrimination often involves using stereotypes to make an assumption about a person based on their protected characteristic. For example, not inviting an autistic employee to a work social event because you think they would not want to take part because they are autistic, is likely to be direct discrimination. The law says “less favourable treatment” doesn’t have to be a physical or financial loss but is treatment a reasonable worker would or might consider to their disadvantage or detriment. What counts as “less favourable treatment” is quite wide and it is important to note that even good intentions can give rise to direct discrimination if the treatment is less favourable and the reason is a person being autistic. However, the law also says that there has to be a real impact, judged objectively, and that an unjustified sense of grievance does not give rise to direct discrimination. To avoid unintentional discrimination, consider whether it would be appropriate to treat a different group of employees in this way Indirect discrimination Indirect discrimination is where an employer applies an apparently neutral policy, practice or criterion to everyone, but it has a disproportionate negative impact on those with a protected characteristic It will be unlawful indirect discrimination if this neutral approach that has a discriminatory impact that can’t be objectively justified. The prohibition on indirect discrimination means employers need to look at the way they usually do things, and consider whether those with a particular protected characteristic would be substantially disadvantaged by doing things that way. If so, whether there is a legitimate aim (a genuine and real reason for the discrimination e.g. health and safety) and whether the discriminatory way of doing things is a proportionate means of achieving that legitimate aim. The duty to make reasonable adjustments, will apply where there is potential indirect discrimination and whether reasonable adjustments have been made would be relevant to whether indirect discrimination can be justified. Employers can reduce the risk of indirect discrimination claims by considering how autistic people would be impacted by the way the employer usually does things, and taking steps to adjust practices and policies to reduce or remove any disadvantage. Harassment Harassment is unwanted conduct related to a protected characteristic that has either the purpose or effect of violating the employee’s dignity or creating a hostile, degrading, humiliating or offensive environment for the employee. There are a few different aspects to harassment that are important to understand in order to help you avoid this form of unlawful conduct in your workplace. To be defined as harassment, the unwanted conduct needs to relate to a protected characteristic Here we are looking at unwanted conduct relating specifically to autism, which is defined as a disability within the Equality Act 2010. Any autistic employee who feels harassed by unwanted conduct relating to their autism may bring a claim of harassment on the basis of disability. It is important to note that one does not need to intentionally harass someone in order for their conduct to count as harassment. Rather, the views of the employee on the effect of that conduct must be considered, in addition to whether those views are reasonable. Harassment related to autism or disability could include co-workers or management making derogatory or offensive remarks about autism or autistic people, or the need to make reasonable adjustments for disabled people. For example, someone talking about the need to ‘cure’ autism, expressing support for autism eugenics research to reduce the number of autistic babies born, or complaining about autistic traits could be disability harassment. Language around disability can also give rise to unlawful harassment claims, but individuals differ in the language they prefer. For example, many autistic people find Person First Language demeaning, e.g. “person with autism” or “person with a disability”, whether this language use would constitute harassment would depend on the circumstances of the situation and checking with your disabled employees what form of language they prefer is always good practice. The alternative to Person first Language is Identity First Language e.g. “autistic person” or “disabled person”, which is generally the preferred form of language in the UK. While there is a minority of disabled and autistic people who prefer Person First Language, it is less likely that Identity First Language would be reasonably considered to be harassment. Certain words are very likely to reasonably considered harassment, e.g. “handicapped”, “retarded”, “spastic”. Many common insults have their origins in disability and it is important to include the understanding of disability slurs in disability awareness training or staff handbooks. The use of these and other terms is considered harassment even when used with no malice or as part of office ‘banter’. If a disabled employee tells you that they find certain language use offensive or hostile in any way, it is important to take steps to ensure that staff know that their language is not acceptable in the workplace. Victimisation Victimisation is treating someone badly because they have done, or you think they might do, a “protected act”. A “protected act” is bringing a complaint of discrimination or harassment, supporting someone or giving evidence in connection with a complaint of discrimination or harassment or any other thing connected with the Equality Act. The Victimisation provision has a similar intention as Whistleblowing protections, to make sure that staff aren’t deterred from making or supporting discrimination or harassment claims. No malicious intent is required for treatment to be unlawful victimisation A person just needs to have been treated badly as a result of an Equality Act 2010 action they have taken. To avoid victimisation in your workplace, make sure staff and managers are well trained in their Equality Act responsibilities and how important they are, not only to your own workplace, but in helping to build a more inclusive society. Line managers of disabled staff should be well supported to help identify and implement reasonable adjustments.