Discrimination and prohibited conduct within the Equality Act 2010 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.