Disability in the workplace: mind the (pay) gap?

It is easy to assume that in the UK in 2020 a physical or mental disability will not determine your salary.

However, figures from the Office of National Statistics (“ONS”) have shown that the employment landscape in the UK is far from inclusive. The pay gap for disabled workers is at a shocking 12.2%, with average pay at £10.63 per hour, in comparison with £12.11 for non-disabled employees. The largest pay gap was suffered by those with a mental impairment (such as depression, anxiety or mental illness) at 18.6%.

Around a quarter of the difference can be attributed to qualifications or choice of occupation. This leaves three-quarters of the pay gap to be explained by discrimination.

So why is this still an issue in a modern, civilised society, and what can be done to challenge it?

Under the Equality Act 2010 (the Equality Act) it is illegal to discriminate against a person on the basis of a disability. The Equality Act says a disabled person is someone with a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day to day activities. Long term means more than 12 months.

Discrimination can be direct or indirect and can take many forms. As well as protection through negative obligations – i.e. not firing a person for their disability – employees should be able to enforce positive obligations on their employer. Section 20 of the Equality Act confirms that an employer has a duty to make reasonable adjustments for an employee with a disability and Section 21 states that if they fail to do so, it is discrimination. An example of a reasonable adjustment could be issuing a job application form for a visually impaired candidate with a larger, clearer, font size. 

So if discrimination is illegal, why is there still a pay gap?

Laws mean nothing if you cannot enforce them. The Equality Act has been criticised for issues with its practical application, issues which have been compounded by public sector cuts. Law Centres and Legal Aid providers have been drastically reduced and free employment law advice is limited. Specialist discrimination advisors are in short supply, meaning victims of discrimination are not being made aware of the rights they have, or how to bring a claim.

With strict time limits on when a claim can be brought (three months minus one day in the Employment Tribunal and six months minus one day in the Civil Courts from the last act of discrimination) and a lack of lawyers to bring them, it is hardly surprising that employers are not being challenged. Added to that, research shows that half of businesses say that it is easier to recruit a non-disabled person over a disabled person and almost a quarter of people think disabled people need to adapt better to a business’ culture.

The perception that those with a physical or mental disability are ‘work-shy’, or a burden to employers must be addressed. Just as the social model of disability asks society to change and adapt to suit all people - so employers should provide opportunities for all potential employees and challenge discrimination when it occurs. 

Appropriate employment opportunities are crucial to addressing the pay gap and ongoing discrimination faced by disabled people in the UK. The government must invest in key services and support for potential employees, create and strengthen existing legislation, and ensure that employers are held to account for their actions. 

As individuals we should: remember rights - recognising discrimination in the workplace and knowing how to challenge it is critical; challenge negative assumptions; be proactive - implementing practices which benefit all employees. 

Find out more about Leigh Day's leading discrimination team.

The Equality Advisory Support Service has a freephone service offering information and advice about discrimination and human rights issues.