We advise employers on managing disability issues at work while minimising legal and commercial risk. Our support includes identifying and responding to potential disabilities, advising on reasonable adjustments, managing sickness absence and performance issues, and handling requests for flexible working. We also advise on fair processes for restructuring, dismissal or capability action involving disabled employees, and on avoiding disability discrimination and failure‑to‑make‑adjustments claims. Our advice is practical, proportionate and focused on helping employers meet their obligations while maintaining effective operations.
Disability Discrimination for Employers
Herrington Carmichael is a full service law firm offering legal advice to UK and international businesses as well as individuals and families.
Identifying and responding to potential disabilities
We advise employers on recognising when an employee’s health condition may meet the legal definition of a disability, even where this is not obvious or formally diagnosed. This includes guidance on when the duty to consider reasonable adjustments is triggered, how to approach sensitive conversations, and when medical evidence or occupational health input is appropriate. Our advice helps employers spot risk early and respond lawfully and proportionately.
Advising on reasonable adjustments
We support employers in understanding their duty to make reasonable adjustments and assessing what adjustments may be appropriate in practice. This includes advice on changes to duties, hours, location, equipment, support mechanisms and workplace processes. We help employers balance legal obligations with operational realities and document decision‑making to minimise risk.
Managing sickness absence and performance
We advise on lawfully managing disability‑related absence and performance concerns, including how to adapt absence management triggers, performance processes and review meetings. Our guidance focuses on fairness, reasonable adjustments and avoiding discriminatory outcomes, while enabling employers to address performance issues effectively.
Handling flexible working requests
We advise employers on flexible working requests linked to medical conditions or disabilities, including how these overlap with the duty to make reasonable adjustments. This includes guidance on consultation, decision‑making, refusals, and managing competing business needs, helping employers handle requests consistently and defensibly.
Restructuring, capability and dismissal
We advise on fair and lawful processes where restructuring, capability action or dismissal involves a disabled employee. This includes redundancy selection, capability dismissals, and alternative role considerations. Our support focuses on mitigating disability discrimination risk, ensuring reasonable adjustments are considered at each stage, and building a defensible process.
Avoiding and defending claims
We provide strategic advice on minimising exposure to disability discrimination and failure‑to‑make‑adjustments claims. Where disputes arise, we advise on risk, evidence, and options for resolution, including settlement discussions or defending claims in the Employment Tribunal.
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Frequently Asked Questions
Find answers to your most pressing questions about our services and processes.
What is a “Disability”?
From a legal perspective, the definition of disability under the Equality Act 2010 is:
“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.”
Some medical conditions are expressly deemed to be disabilities, including blindness, severe disfigurements, cancer, HIV and multiple sclerosis.
If a condition is not a deemed disability, it is for the tribunal to decide whether it meets the definition of disability under the Equality Act 2010 on the balance of probabilities. Expert medical evidence may assist a tribunal in making that determination.
Conditions which are excluded from the definition of disability are tendencies to set fires, steal or physical or sexual abuse of other persons, exhibitionism, voyeurism, tattoos and piercings, or hay fever.
What are the different forms of disability discrimination?
- Direct Discrimination – treating someone less favourably than others because of their disability
- Indirect Discrimination – imposing a provision, criterion, or practice that applies to all but disproportionately disadvantages disabled people
- Discrimination arising from disability – treating a disabled person unfavourably because of something arising from, or in consequence of, their disability. This is a form of discrimination which arises as a symptom of the person’s disability
- Failure to make reasonable adjustments – failure to accommodate the needs of a disabled person, where such adjustments would prevent a substantial disadvantage
- Harassment – unwanted behaviour or conduct related to a person’s disability that either violates their dignity or has the purpose or effect of creating an intimidating, hostile, degrading, humiliating, or offensive environment
- Victimisation – subjecting someone to a detriment because they have done a protected act (brought a claim) about disability discrimination or are considered likely to do a protected act (i.e. bring a claim)
Can I dismiss an employee with a disability?
Yes, but employers should proceed with caution. Before taking any dismissal steps, employers are usually required to consider reasonable adjustments to support the employee in their role and continued employment. This may include changes to duties, hours, working arrangements or the provision of additional support. Failure to do so can expose the employer to disability discrimination claims.
Can disability discrimination ever be justified?
Yes, indirect discrimination and discrimination arising from disability can sometimes be objectively justified if the person or employer applying the provision, criterion or practice can show that it is a “proportionate means of achieving a legitimate aim”.
What are examples of reasonable adjustments?
The Equality and Human Rights Commission Code suggests adjustments that might be reasonable for an employer to make:
- Making adjustments to premises (physical or structural)
- Acquiring or modifying equipment
- Providing information in accessible formats (e.g. braille, audio)
- Allocating some of the disabled person’s duties to another worker
- Employing a support worker to assist a disabled worker
- Transferring the disabled worker to fill an existing vacancy
- Modifying disciplinary or grievance procedures
- Adjusting redundancy selection criteria
Adjustments are not limited to just one adjustment.
Are mental health conditions covered under the Equality Act 2010?
Yes, if they meet the definition of disability under Section 6 of the Equality Act 2010.
Can an employer require a medical examination to assess a disability?
Yes, an employer may request a medical examination to understand the nature of an employee’s disability and determine what reasonable adjustments might be necessary. However, any such request must be reasonable and handled sensitively. Employers should also obtain the employee’s consent before conducting or requesting such an examination.