Disability Discrimination in employment explained

Disability Discrimination in Employment Explained

Disability discrimination is another massively complicated area of employment law. The purpose of this guide is to give employees an understanding of disability discrimination claims.

As with all our guides – we tell you in plain English first what each legal definition means and then if you want to see the actual legal definition – we include that at the end of our guide.

What does it mean to be disabled for the purposes of the Equality Act?

Many people when they think of what it means to be disabled – they think of someone in a wheelchair but the definition of “disability” for the purpose of employment laws is much wider than that.

To be “disabled” you need to meet each of the criteria below:

1. You have a physical or mental impairment (stress, anxiety and depression can be a mental impairment). Nb. If you have any of the following conditions you automatically qualify as disabled and can skip 2-4 below: blindness, severe disfigurement, cancer, HIV and multiple sclerosis;
2. Your impairment has negative effect on your ability to carry out normal day-to-day activities;
3. The effect is “substantial” i.e. more than minor or trivial
4. The effect is “long-term” i.e. it has lasted more than 12 months or is likely to last more than 12 months

Different Types of Disability Discrimination

Most people think that disability discrimination it one type of claim. This is wrong. There are actually SIX different types of disability discrimination. Please see below for a brief description of each:

Disability Discrimination

1. Direct Disability Discrimination occurs when..

Your employer treats you less favourably than someone who is not disabled. because of your disability.

2. Discrimination Arising from a Disability occurs when..

Your employer treats you less favourably because of something connected to your disability (e.g. having to work from home or take time off work for doctor’s appointments).

3. Indirect Disability Discrimination occurs when..

Your employer applies a policy, procedure or rule which applies to everyone but puts disabled employees at a disadvantage.

4. Failure to make reasonable adjustments occurs when...

Your employer fails to make a reasonable adjustment to make life easier for a disabled employee (e.g. ramp for employee in wheelchair).

5. Victimisation on the grounds of disability occurs when…

Your employer victimises (punishes) you for claiming or alleging discrimination on the grounds of disability.

6. Harassment on the grounds of disability occurs when..

Your employer has harassed you for a reason connected to or about your disability.

LEGISLATION

And if you want to know what the actual legislation says – here it is:

Definition of Disability:

"A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities". (Section 6(1) Equality Act 2010)

Direct Discrimination

“Direct disability discrimination occurs where, because of disability, a person (A) treats another (B) less favourably than A treats or would treat others” (Section 13(1), EqA 2010).

Discrimination Arising from a Disability

"*Discrimination arising from disability occurs where both: * • A treats B unfavourably because of something arising in consequence of B's disability. • A cannot show that the treatment is a proportionate means of achieving a legitimate aim."

(Section 15(1) of the EqA 2010)

Indirect Disability Discrimination:

“Indirect disability discrimination occurs where: • A applies to B a provision, criterion or practice (PCP). • B has a disability. • A applies (or would apply) that PCP to persons who do not have B's disability. • The PCP puts (or would put) those with B's disability at a particular disadvantage when compared to other persons. • The PCP puts (or would put) B at that disadvantage. • A cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.” (Sections 6 and 19, EqA 2010.)

Failure to make reasonable adjustments:

“(2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.” (S.20 EqA 2010)

Victimisation on the grounds of disability

“Victimisation occurs where a person (A) subjects another person (B) to a detriment because B has done, intends to do, or is suspected of doing or intending to do, any of the following protected acts: • Bringing proceedings under the EqA 2010. • Giving evidence or information in connection with proceedings under the EqA 2010, regardless of who brought those proceedings. • Doing any other thing for the purposes of or in connection with the EqA 2010. • Alleging that the discriminator or any other person has contravened the EqA 2010.” (Section 27(2), EqA 2010.)

Harassment on the grounds of disability

“Disability harassment occurs where both: • A engages in unwanted conduct related to disability. • The conduct has the purpose or effect of violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.” (Section 26(1), EqA 2010.)