1. What does the law say about supporting disabled staff?
International treaties and national legal duties set out the rights and expectations of disabled people, and the requirements of their employers. This section briefly explains these. Some more information and sources of support are available in section 4 of this report.
We want to empower and develop leaders across the voluntary sector. Getting the basic legal requirements in place, including making changes to the way we work, is the first step to ensuring disabled future leaders have the same opportunities to build their careers as non-disabled colleagues. It will also help organisations make the most of their workforce, and benefit from the talent and skills all their employees hold.
International rights for disabled people
The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) was ratified by the UK in 2009. Broadly, this means the UK agrees to protect and promote the human rights of disabled people, including:
- Eliminating disability discrimination
- Enabling disabled people to live independently
- Ensuring inclusive education
- Protecting disabled people from exploitation, violence and abuse(2)
The Convention does not explicitly define disability. It adopts a human rights model, which recognises both the impact of impairments on an individual and the societal barriers that exist. It also underlines the principle that an impairment does not remove or invalidate a person’s human rights. It states that:
Disability is an evolving concept and [it] results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.
Article 1 also specifies that disabled people include those with ‘long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.’
Article 27 of the Convention is about work and employment. It states that governments should recognise disabled people’s right to work on an equal basis to non-disabled people. This means States should take steps to prevent discrimination in employment on the basis of disability, ensure just and favourable conditions of work equal to those of other employees, have access to training, employment opportunities and career advancement, and provide reasonable accommodations or adjustments.(3)
The UN examines countries who have ratified different conventions every few years; the last examination in relation to the UNCRPD was in 2017. Among many other findings and recommendations, the UN Committee found that:
- Organisations representing disabled people, including those representing disabled women, children and intersex people, did not have enough support to be actively involved in implementing the Convention, or in the design and implementation of strategic government policies for disabled people
- Government should identify and address gaps in terms of accessibility standards including the design of affordable and accessible physical environments, housing, information and communications technology, information formats and transport infrastructure
- It should adopt a plan of action to eliminate the perception that disabled people do not have ‘a good and decent life’, of equal worth to non-disabled people
- The employment and pay gap for disabled people was persistent, especially for disabled women, neurodivergent people and those with a learning disability, and blind and partially sighted people. Government should develop employment policy to support all disabled people to find decent work, with equal pay for work of equal value
- There was insufficient provision of reasonable adjustments for disabled people to access employment. The Committee recommended ensuring accommodations were provided to all who needed them, that regular training for employers and employees should be provided, and that effective sanctions should be introduced to prevent employers denying reasonable requests
- Government needed to improve its collection of reliable data, publicly available and broken down by different protected characteristics.(4)
While the Committee’s recommendations are for the State, often in partnership or consultation with representative organisations, there are clearly some actions that individual organisations could take to model best practice. This might include demonstrating through practice the equal worth and value of disabled people’s lives through enabling them to make the most of their talent and skills, ensuring disabled employees are paid the same as non-disabled employees and that this is measured and reported on, and doing as much as possible to make reasonable adjustments and findings solutions to enable disabled people to enjoy a healthy, accessible and supportive work environment.
There are also many findings and recommendations that align with targets of the global Sustainable Development Goals. This set of 17 interconnected goals was agreed by the UN in 2015. It requires all stakeholders – governments, businesses and civil society organisations – to play a part in achieving these goals by 2030. There are specific references to disabled people in terms of access to education (Goal 4), promoting inclusive economic growth and access to the job market (Goal 8), including disabled people in social, economic and political life (Goal 10), creating accessible cities and public spaces (Goal 11) and collecting reliable data (Goal 17). These are all areas where voluntary organisations can, and should, contribute.(5,6)
The Equality Act 2010
The Equality Act 2010 defines disabled in the following way:
You’re disabled under the Equality Act 2010 if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.
Substantial means it might take longer to complete daily tasks, and long-term means 12 months or more, either continuously or cumulatively, or if it is expected to affect someone for the rest of their life. In some cases, such as people with HIV, multiple sclerosis or cancer, they are legally counted as disabled from the day of diagnosis.
The Act covers different types of discrimination disabled people might face:
- Direct discrimination: where someone is treated less favourably than someone else because they are disabled
- Discrimination arising from a disability: a disabled person is treated unfavourably because of something connected with their disability (eg a physical symptom of a medical condition), and the unfavourable treatment cannot be justified
- Indirect discrimination: where a rule, policy or practice applied to everyone has a particular negative impact on disabled people, which cannot be justified as a fair and reasonable approach to achieving a legitimate aim
- Discrimination by association: where someone is discriminated against because they are linked to or associated with a disabled person (e.g. because they are a carer)
- Discrimination by perception: where someone is discriminated against because they are perceived to be disabled, chronically ill or neurodiverse when they are not
- Harassment: unwanted behaviour related to disability that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for them
- Victimisation: where someone is treated badly because they have made a complaint, or supported someone else to make a complaint, under the Act. This also applies if they haven’t made a complaint, but the service provider or employer thinks they have.
The Act applies a duty to make reasonable adjustments for disabled people, and it is unlawful to fail to do so. For organisations providing services to people (e.g. shops and restaurants, universities and training providers, care providers, etc.), this duty is anticipatory – an organisation must think about what disabled people might reasonably need in advance, rather than waiting until a disabled person wants to use its services. When deciding whether an adjustment is reasonable, an organisation can consider how effective and practicable it would be, how much it costs and the organisation’s relative resources and size.
Employers are also required to make reasonable adjustments for their disabled employees (or candidates, during recruitment). This duty is not anticipatory; organisations can respond to employees’ needs when they arise. The duty applies where the employer knows, or could reasonably be expected to know, that an employee is disabled. An employer must make reasonable efforts to find out if employees have additional needs, without violating the dignity or privacy of the person. In addition, an employer cannot choose someone for redundancy because they are disabled, and they cannot force someone to retire if they become disabled.
There are three requirements for employers to support a disabled person who might otherwise be placed at a substantial disadvantage compared to non-disabled colleagues:
- Changing the way things are done: changing policies or standard practices that pose significant challenges for disabled colleagues, such as when and where meetings take place, where people are allowed to work and how they manage their time
- Changing the physical workplace: introducing, amending or changing physical features of an office or other workplace to remove physical barriers to working, such as glass doors, hearing loops or ramps
- Providing extra equipment, aids or services: providing equipment that will assist a disabled employee to do their job, such as specialist software, stands, rests and chairs, or an assistant to help them with work-related tasks.
Again, employers can consider the effectiveness and practicality of the proposed change when deciding whether an adjustment is reasonable, as well as its cost, the organisation’s resources and size, and the availability of financial support. If an adjustment is reasonable, the employer must pay for it, although many adjustments are low- or no-cost. Leonard Cheshire reported some entrenched attitudes among employers that acted as a barrier to hiring disabled staff, including fears about the cost of workplace adjustments; 66% of employers said these would be a barrier to employing a disabled person in 2018.(7) However, where adjustments do carry a cost, a government financial scheme called Access to Work can help with extra costs that an employer may not be able or obliged to meet. There is more detail on this in section 4.
In addition to duties under the Equality Act 2010, employers are also required to ensure the health, safety and wellbeing of all their employees, whether they have a disability or not. The main legislation in this area is the Health and Safety at Work etc. Act 1974. This legislation does not provide any justification for not taking on a disabled worker.(8-13)
Understanding this national, and global, context underpins this work, and duties must be met robustly, transparently and with the aim of supporting marginalised staff to the best of an organisation’s capability. However, supporting disabled staff to achieve their full potential, to access development opportunities and to progress in their careers, takes more than meeting legal equality duties. The rest of this report will look at what we know already about disabled leaders in the voluntary sector, what we might learn from other sectors, and what we still need to find out.