Disability Discrimination

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Disability Discrimination

Disability discrimination makes it is unlawful to discriminate against a person because they have a disability.  Section 6 of the Equality Act 2010[1] defines a person having a disability as:

a person who has 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.

There can be no exhaustive list of physical and mental impairments which constitute a disability and, in fact,  it is not necessary to have an officially diagnosed cause.  The key consideration here is the effect that any impairment has on an employee in the workplace.

Some impairments are specifically excluded from the disability discrmination regulations such as alcoholism and hay-fever.  A more extensive list of excluded conditions is provided in Guidance on Matters to be Taken into Account when Determining Questions Relating to the Definition of Disability[2] which is available from the Office of Disability Issues

Substantial Adverse Effect

The Act requires that the impairment must have a substantial adverse effect on the persons ability to carry out day-to-day tasks.  In general terms, a disability must be a limitation going beyond the normal difference in ability which might exist among people.

Where a person with a disability is undergoing treatment, which prevents their disability having a substantial effect, then they are still treated as having that disability.  Additionally a person who has a progressive condition will still be regarded as having a disability provided that that condition has had some effect on their day-to-day activity even if that effect falls short of that which could be considered substantial.

A condition need not on its own have a substantial adverse effect.  The cumulative effect of minor difficulties when added together can be classed as a substantial adverse effect for the purposes of disability discrimination.

Long Term Effect

Paragraph 2 Schedule 1 describes the effect of the impairment as being long term if it has lasted for at least 12 months, is likely to last for at least 12 months or it is likely to last for the rest of the life of the person affected.  Furthermore, even if it ceases to have a substantial adverse effect, it still counts as a disability if it might recur.

Deemed Disabilities

There are some impairments and conditions which are automatically deemed to be disabilities.  Blind and partially sighted employees are considered disabled for example.  Equally, employees diagnosed with cancer, HIV or multiple sclerosis are considered to have a disability from the first day that they are diagnosed, regardless of whether the condition is having a substantial adverse effect.

Continuing Cover of the Equality Act 2010

The provisions of the Equality Act 2010 continue to apply even after the employee ceases to be disabled.  See section 6(4) of the Equality Act 2010 .

Forms of Discrimination

Direct discrimination

This is treating an employee less favourably because they have a disability.

Indirect discrimination

This occurs when a ‘provision, criteria or practice’ which although applied equally to employees has a discriminatory effect.

It is possible for an employer to justify indirect discrimination if it can be considered a proportionate means of delivering a legitimate aim.

Harassment

You should not be harassed or bullied because of your disability, your employer must also takes steps to prevent your colleagues, clients and customers from treating you differently.

Victimisation

Victimisation is when an individual is treated less favourably because they have made a complaint or intend to make a complaint about discrimination or harassment.