This page presents an occupational health perspective on the Equality Act 2010, including disability, its impact on fitness for work, reasonable adjustments, unlawful discrimination and and when a disabled person may be lawfully dismissed.

It is based on the Equality Act 2010, HSE and ACAS guidance and is information, and it is not legal advice.

The Equality Act 2010 protects people from discrimination because of “protected characteristics”. These include disability, age, sex, race, religion or belief, pregnancy and maternity, sexual orientation and gender reassignment.

For disability, the Act uses a functional test and a short list of defined conditions.

1. Who is “disabled” in law?

Under the Equality Act, someone is disabled if they have a physical or mental impairment with a substantial (more than minor or trivial) and long‑term (12 months or more, or likely to recur) adverse effect on normal day‑to‑day activities, discounting the benefit of the treatment (i.e., ignoring the treatment or aids).

‘Normal day-to-day activities’ are not defined in the Equality Act but include a broad range of functions: mobility, manual dexterity, lifting or moving everyday objects, speaking, hearing, reading, writing, and cognitive functions such as the ability to learn, understand or solve simple problems, recognise everyday hazards, and manage self-care, shopping, using public transport, maintaining concentration through routine tasks (Secretary of State’s Guidance on the Definition of Disability, 2011).

From 1 January 2024, normal day-to-day activities include the ability to participate fully and effectively in working life on an equal basis with other workers (e.g., a surgeon’s fine motor control, a pilot’s vestibular function, or a lawyer’s ability to sustain concentration under pressure) (Equality Act 2010 (Amendment) Regulations 2023)

Are any medical conditions considered disabilities?

Only 3 conditions are treated as disabilities from diagnosis without the legal tests of duration and impairment: Cancer, HIV infection, Multiple Sclerosis (Schedule 1 Para 6).

Severe disfigurement is a disability (Schedule 1 Para 2)

Visual impairment (blindness, severe sight impairment, sight impairment, and partial sightedness) certified by a consultant ophthalmologist is also a disability (Regulation 7)

Some conditions are excluded as disabilities: Addiction to alcohol, nicotine, and some tendencies (e.g., tendency to steal, abuse, set fires or engage in exhibitionism or voyeurism) and hay fever are excluded as impairments for Equality Act purposes. Illnesses caused by addiction (for example liver disease) may themselves be disabilities.

Example 1: An employee with Crohn’s disease feels well and has no symptoms. However, without medication, they would suffer from symptoms that affect day-to-day activities (e.g., a very urgent need to use the toilet or unpredictable fatigue). Therefore, this employee is likely to meet the Equality Act disability definition, even if they do not see themselves as “disabled” and the symptoms are controlled with treatment.
Example 2: An employee with untreated ADHD and no evidence of substantial adverse effect on their normal day-to-day activities may not be disabled under the Act.

Indirect discrimination

The Equality Act also protects non-disabled employees from ‘indirect discrimination’. This means an employee can bring a claim if they feel disadvantaged because of their association with a disabled dependant.

Example: Forcing an employee to abandon her hybrid working arrangement was unlawful indirect associative discrimination because it disadvantaged her as the primary carer for her disabled mother (Follows v Nationwide Building Society).

Occupational health assessments help employers and employees understand how a condition affects the job, whether the Equality Act 2010 may apply, and what adjustments can be considered.

2. Reasonable adjustments: what the law requires

Employers must consider adjustments not to put disabled employees at a substantial disadvantage compared with non‑disabled workers.

These adjustments need to be reasonable and effective in removing the barriers.

The adjustments include changes to how work is organised, adaptations to the environment, and / or extra support where needed.

The employer’s duty under EA 2010 s.20 has three distinct limbs:

1. Changing a provision, criterion or practice that puts a disabled person at a substantial disadvantage;
2. Removing, altering or providing a means of avoiding a physical feature;
3. Providing an auxiliary aid or service.

Adjustments can include changed duties, hours or shift patterns, extra breaks, more flexible attendance thresholds, equipment, training, mental health support or redeployment to a more suitable role, disability‑related time off for medical appointments or applying more flexible attendance thresholds..

What is “reasonable” is not fixed in the Act. When planning adjustments, the employers need to consider time, resources and cost involved as well as the impact on health and safety (EA 2010 s.20, Schedule 8; EHRC Employment Statutory Code of Practice, 2011).

Ultimately, the ‘reasonableness’ is decided by employment tribunals or civil courts, if there is a dispute.

What if adjustments cannot be accommodated?

Employers are not expected to remove essential job requirements or accept unmanaged safety risks,

Health and safety duties still apply “so far as is reasonably practicable”, balancing risk against money, time and trouble.

Example1: A call‑centre worker with generalised anxiety disorder struggles with constant phone work but manages email and webchat well; after an OH report, the employer reduces their call time, increases email and chat work and allows predictable breaks; the essential service is maintained but the disadvantage is reduced.
Example 2: A warehouse role whose core purpose is heavy manual lifting may not be realistically adjustable for someone with permanent, medically‑advised restrictions on lifting after two spinal operations, if there is no suitable alternative work and machinery or team‑lifting cannot remove the risk to an acceptable level.

Constructive knowledge

The duty to make reasonable adjustments and the discrimination protection apply only where the employer knew, or could reasonably have been expected to know, that the person was disabled.

An employer who genuinely did not know and could not reasonably have found out is not liable. This makes early, open communication and OH referral important for both parties (EA 2010 Schedule 8 Para 20).

3. When a disabled person is not fit for a role due to physical or mental capability requirements

Some roles have essential functions that cannot be redesigned, redistributed or made safe by adjustments alone.

The Equality Act 2010 does not require an employer to retain someone in a role they genuinely cannot perform safely or effectively.

Where a disabled employee cannot safely perform essential job functions, even after adjustments have been considered, the correct legal sequence is as follows:

Step 1. Reasonable adjustments (EA 2010 s.20-21, Schedule 8). Consider any practical change to working practices, environment or equipment. Trial what is feasible where applicable, and document the outcome. Example: A warehouse operative cannot lift after spinal surgery. The employer assesses mechanical aids, task reallocation and redeployment to stock control, and records the outcome of each assessment.

Step 2. Objective justification (EA 2010 s.15). If unfavourable treatment cannot be avoided, it is lawful only where the employer shows a legitimate aim (such as safety or service continuity) using proportionate means of achieving it (meaning no less discriminatory option was workable). Specific documented evidence, including occupational health opinion, is required.
Example: A surgeon with progressive visual loss can no longer meet theatre safety standards per OH advice. The employer documents the risk assessment and a genuine search for alternative non-surgical work.

Step 3. Capability dismissal (ERA 1996 s.98). Dismissal on health grounds is a potentially fair reason if Steps 1 and 2 were duly completed. The employer must also satisfy a fair procedure, including current OH opinion, genuine redeployment consideration and opportunity for the employee to respond.
Example: After a redeployment attempt, a warehouse worker with permanent spinal restrictions remains unfit for all available roles. A formal capability meeting is held, the OH report discussed, a further redeployment option considered and rejected, and the capability dismissal decision issued with full written reasoning.

The process can be illustrated using several scenarios. Occupational health and legal advice should be sought in individual cases.

Scenario 1. Physical safety-critical role. A lone-working security officer must perform restraint and pursuit on foot. OH confirms refractory epilepsy with unpredictable loss of consciousness. Adjustments, including paired working and CCTV duties, were considered, but do not remove the risk. After documented adjustments and a redeployment search, capability dismissal under ERA 1996 s.98 may be fair, with safety as the proportionate legitimate aim under EA 2010 s.15.

Scenario 2. Cognitive safety-critical role. A road worker with severe ADHD receives optimal treatment under specialist supervision. Adjustments have been tried (e.g., written plans, checklists, reduced task complexity, team working and regular debrief). Repeated safety-critical protocol breaches persist, and redeployment to a non-safety-critical role is not available. Capability dismissal may be fair, provided records clearly show what was tried, what failed, and why.

Scenario 3 . Safety-critical role regulated by industry guidance. An offshore installation worker is diagnosed with an unstable personality disorder. OEUK Medical Fitness Guidelines advise that unstable mental health conditions are not compatible with offshore work due to isolation, stress levels, emergency response demands and crew safety. OH confirms the condition is active and insufficiently stabilised by treatment. Onshore redeployment is considered but unavailable. Capability dismissal may be fair, provided the OH opinion explicitly links the clinical presentation to the offshore fitness standard, not the diagnosis alone. The fitness standard is an evidenced, essential requirement of the role, applied consistently and not based on diagnosis alone (EA 2010 s.60(6)(a); EHRC: Questions about Disability and Health after a Job Offer).

Due to the legal complexities involved, each step should be carefully considered, documented and preferably taken after legal consultation. A dismissal may pass the EA 2010 objective justification test yet still be procedurally unfair if the process was deficient.

4. Pre-placement health assessments before a job offer

Employers are prohibited from asking health or disability questions before making a conditional job offer (EA 2010 s.60), except for limited exceptions (e.g., to establish whether adjustments are needed for the recruitment process itself, or where a specific statutory or regulatory fitness standard applies to the role (EA 2010 s.60(6)).

Early, open pre-placement OH assessment benefits employers and candidates. It identifies adjustments before problems arise, reduces early sickness absence and avoids costly disputes.
Scenarios

The correct sequence is: conditional job offer, followed by OH assessment and the employer’s decision.

OH does not make the employment decisions but provides advice on whether:

1. The applicant meets the functional role requirements;

2. Any adjustments would bring them within those requirements; and

3. Any applicable regulatory or industry fitness standard is met.

The employer then decides, based on that advice, whether to confirm, modify, or withdraw the offer.

Scenario 1. A conditional offer for a delivery driver role is made subject to OH assessment. OH identifies a recent prolapsed disc with ongoing sciatica and restrictions on prolonged sitting and manual handling. The employer cannot withdraw the offer on diagnosis alone. OH assesses functional capacity and advises whether adjustments such as a modified vehicle, regular breaks or revised load limits are feasible. If the applicant cannot safely meet the core requirements and the adjustments are not available or effective, the offer may be withdrawn with documented reasoning based on evidence.

Scenario 2. A conditional offer for a social worker is made subject to OH assessment. OH identifies active emotionally unstable personality disorder (EUPD) with limited response to long-term treatment. The employer cannot withdraw on diagnosis alone. OH advises on whether the specific functional risks are present, whether supported or modified social work would be feasible, and whether the role’s safeguarding requirements can be met. If OH confirms they cannot, withdrawal is potentially lawful provided the reasoning is specific, evidence-based and documented, and the adjustments are not available or effective.

Scenario 3. A conditional offer for a police constable role states the offer is subject to passing a health and fitness medical, as pursuit of suspects and making an arrest are essential functions of the role. The applicant fails the medical on grounds directly relevant to those functions. The withdrawal is lawful: the fitness standard is an evidenced, essential requirement of the role, applied consistently and not based on diagnosis alone (EHRC Questions about Disability and Health after a Job Offer)

Scenario 4. A job offer was made subject to a satisfactory medical report. OH confirmed the applicant was fit for work without restrictions or adjustments, despite disclosing mental health conditions, cancer and back problems. The employer withdrew the offer anyway. The EAT upheld the tribunal’s finding of discrimination arising from disability: where OH confirms fitness with no adjustments needed, withdrawal of the offer is disproportionate and unlawful. The case establishes that the employer must act on OH advice, not override it (Birtenshaw v Oldfield UKEAT/0288/18).

5. What tribunals and courts say about unlawful discrimination

The following cases illustrate common ways employers get things wrong. In each, the employer had a plausible reason but failed to follow the correct process or ignored available alternatives.

Absence thresholds

A payroll clerk with a long‑term joint condition had an agreed adjustment: the absence trigger was raised from three episodes a year to five. A new manager removed this adjustment and put her straight into capability when she reached the standard attendance trigger. A tribunal decided this was disability discrimination (Ward v NHS Trust UKEAT/0249/18).

Redeployment

A postman with a long‑term knee problem could no longer walk his round but managed well in a temporary indoor job. His employer dismissed him on ill‑health grounds instead of waiting a few months for a planned reorganisation that would create permanent indoor roles. The appeal court said that failing even to consider delaying dismissal until those roles existed could amount to a failure to make reasonable adjustments and unjustified discrimination (Cairns v Royal Mail Group Ltd EAT).

Performance rules

A bank manager needed surgery, chemotherapy and regular check‑ups to treat bowel cancer. Her absences and reduced hours were counted under the normal attendance and performance rules. Within months she was put into a ‘redundancy’ process and dismissed, even though her work still existed and colleagues were doing it. The tribunal found that her dismissal was unfair and discriminatory: cancer is a disability under the Equality Act, and the bank should have adjusted performance expectations instead of using them as a reason to get rid of her (Willis v NatWest Group London Central ET).

6. Practical guard‑rails for employers

In practice, good employers tend to follow the same pattern:

They seek occupational health advice on whether the employee may be disabled.

The next step is to consider adjustments and to openly discuss with the worker.

They identify which tasks are essential, which are flexible and which could be moved or done differently. They document the options considered, the trials attempted and the reasons specific adjustments or redeployments were rejected as unreasonable or unsafe.

They take legal advice before withdrawing a job offer or dismissing where disability is in play.

Example: A neurodivergent customer‑service adviser struggles with rapid call‑handling and challenging customers, leading to complaints; the employer first tries scripts, coaching, extra supervision and moving some work to email; only if complaints remain serious and there is no suitable alternative role does the employer consider ending employment, supported by a clear written record of adjustments and business reasons.

7. Practical guard‑rails for employees

For employees and job applicants, the same framework is there to protect you as well as your employer:

You can describe your difficulties at work, ask for referral for occupational health assessment and advice on whether the Equality Act 2010 may apply.

The next step is to discuss adjustments and engage with the employer.

If adjustments are refused, you can ask for the reasons and suggest alternatives. If you believe a decision about your job was discriminatory, you can seek advice from a union, Acas, Citizens Advice or a legal adviser, and a tribunal can ultimately decide whether the Equality Act duties have been met.

Disability discrimination claims under the EA 2010 have no qualifying period. Protection applies from the first day of employment or from the point of a job application. Employers should ensure their process is robust from the outset, not only after an employee has accrued service.

References

Equality Act 2010, ss. 6, 15, 20-21, 60; Schedules 1, 8 and 9

Equality Act 2010 (Disability) Regulations 2010, SI 2010/2128

Employment Rights Act 1996, ss.98(2)(a) and 98(4)

Government Equalities Office: Questions about disability and health after a job offer has been made

Secretary of State, Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability (2011): www.gov.uk/government/publications/equality-act-guidance

Acas, Disability Discrimination (updated 2024): www.acas.org.uk/disability-discrimination

Acas, Capability and Performance when Someone is Disabled (2024): www.acas.org.uk/supporting-disabled-people/capability-and-performance-when-someone-is-disabled

HSE, Health Surveillance and Fitness for Work: www.hse.gov.uk

OEUK, Medical Fitness Guidelines (current edition): www.oeuk.org.uk

EHRC, Employment Statutory Code of Practice (2011)

Last Reviewed: June 2026 by Workable OH