Disability discrimination

Disability Discrimination

The Equality Act 2010 applies to all categories of staff who may work in a business, including workers, employees, contractors, partners, or a director (collectively referred to as workers in this section), but not volunteers.

Disabled workers enjoy the same anti-discrimination protection as other workers, but they have additional rights under the Equality Act 2010.

All aspects of employment are covered by the Act including:

• Application forms
• Interview arrangements
• Proficiency tests
• Job offers
• Terms of employment
• Promotion, transfer or training opportunities
• Work-related benefits such as access to recreation or refreshment facilities

What is a disability?

The definition of a disability is a legal and not a medical definition. This means that sometimes a medical condition may be regarded as a disability by a doctor, but will not be a disability for the purposes of disability discrimination.

A person has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. A disabled person means a person who has a disability.

Before deciding whether there is discrimination on the grounds of a disability, an Employment Tribunal will have to decide whether a person is disabled and will look at four conditions:

1.) The impairment: is there a physical or mental impairment? Examples of physical impairment include multiple sclerosis, cancer, blindness and arthritis. Examples of mental impairment include depression, dementia and autism. An impairment, which may result in a worker being protected under the EA, can result from the cause or effect of another illness. It also may result from conditions which cannot be described as an illness, such as disfigurement or genetic deformity.

Some physical conditions can result from an underlying mental condition, or can cause a mental condition, such as depression.

If your worker has an addiction to alcohol, nicotine or any other substance they will not be regarded as having a disability for the purposes of the EA.

2.) The adverse effect: the tribunal must decide whether the impairment adversely affects a person's ability to carry out normal day-to-day activities. This includes their ability to participate fully and effectively in working life on an equal basis with other workers and includes activities such as using a telephone; reading; using public transport; mobility; the ability to lift, carry or otherwise move everyday objects; speech; hearing or eyesight.

However, note that:

• A progressive condition must have some adverse effect now, and be likely in the future to have a substantial effect
• If a condition has periods of remission then you must prove that it is likely to recur. 'Likely' means 'could well happen' in this context.

3.) Whether the adverse effect is substantial - The condition is more than minor or trivial. A number of factors are taken into account including the time it takes to carry out an activity and the way in which an activity is carried out.

4.) Whether it is a long-term impairment: the impairment must have a long term effect as of the date of any alleged act of discrimination. 'Long term' includes impairments that:

• Have lasted at least 12 months
• Are likely (i.e. more probable than not) to last for at least 12 months
• Are likely (i.e. more probable than not) to last for the rest of a worker's life
• Are likely (i.e. could well happen) to recur if in remission

Where measures are taken to treat or correct an impairment that would be likely to have a substantial adverse effect on the ability of a person to carry out normal day-to-day activities, that impairment is still treated as amounting to a disability. For example epilepsy, which although controlled by medication, may still amount to a disability.

Note that anyone diagnosed with HIV/AIDS, cancer or multiple sclerosis will be considered a disabled person. They do not need to exhibit symptoms to qualify for this status.

Types of claims

Direct disability discrimination

This is where a worker is treated less favourably because of their disability when compared with another worker who is not disabled but has the same (or at least not materially different) abilities as the disabled worker.

For example, a job advert might state that disabled applicants will not be considered. This might give a disabled applicant, who is otherwise qualified and able to do the job, a claim for direct disability discrimination.

Direct discrimination also extends to protecting a worker if you treat them less favourably based on:

• Your perception of whether they have a disability, regardless of whether or not the perception is correct. For example, you refuse to promote a worker because you believe he is dyslexic. However, you promote a colleague, whose circumstances are similar except that you do not have the same perception about them.
• The disability of another person (also known as discrimination by association). For example, if you are being discriminated against because you have to care for a disabled family member, even though you are not disabled yourself or your refusal to comply with instructions that would require you to treat someone less favourably because of their disability. For example, if a managing director exerts pressure on a line manager to dismiss a worker because of their disability. The pressure on the line manager will amount to unlawful conduct.

It also may occur if a recruitment decision contains a discriminatory statement, even when there's not an active recruitment process underway and no identifiable victim.

You could be liable for direct discrimination even if you did not intend to discriminate against your worker.

Indirect disability discrimination

This will occur where you apply a formal or informal provision, criteria or practice equally to all workers in the workplace that puts workers with a disability at a particular disadvantage when compared with other workers, and a worker within that disadvantaged group actually suffers this particular disadvantage.

It also applies if a worker, who is not in the group that suffers the disadvantage, also suffers the disadvantage alongside the worker with the protected characteristic.

For example: A policy requiring workers to work or return to the office full time may amount to indirect disability discrimination if it detrimentally affects a disabled worker. This can be relied on by a non-disabled worker if they care for a family member with a disability.

It does not matter whether or not this has been done intentionally.

You can defend against indirect discrimination claims by justifying the use of the unlawful practice, provisions or criteria, if you can show that its application is a proportionate means of achieving a legitimate aim.

Discrimination arising from disability

This protects workers from being treated unfairly because of something connected to their disability. There is no need to compare the disabled worker with another worker. The reason does not have to be the disability itself and can include something related to it, such as an aid or device (e.g. the use of a wheelchair) or the amount of sick leave taken in a year.

For example, a disabled worker who is dismissed because he is regularly absent from work due to illness could claim discrimination arising from a disability because he is being discriminated against for a reason (his absence from work) which relates to his disability.

This type of discrimination is unlawful where you either know or could reasonably be expected to know, that a worker has a disability.

You can defend claims by justifying your actions, if you can show that the discriminatory act was a proportionate means to achieve a legitimate aim.

For example, you may be able to justify removing a diabetic worker from driving duties for the material and substantial reason that he would pose a risk to himself and other road users.

Failure to make reasonable adjustments

Under the EA, you have a duty to make 'reasonable adjustments' to ensure that workplace provisions, criteria, practices or any physical features of the workplace do not put a worker at a substantial disadvantage compared to non-disabled workers.

Examples of the sort of adjustments you should consider, in consultation with your worker, include:

• Allocating some of their work to someone else
• Transferring them to another post or another place of work
• Making adjustments to the buildings where they work
• Being flexible about their hours – allowing the employee to have different core working hours and to be away from the office for assessment, treatment or rehabilitation
• Providing training
• Providing modified equipment
• Making instructions and manuals more accessible
• Providing a reader or interpreter

Your duty to make reasonable adjustments will only arise if you know or could reasonably be expected to know that a person (including a job applicant) is disabled and that they are suffering or are likely to suffer a substantial disadvantage because of a workplace provision, criteria or practice or any physical features of the workplace.

Your duty is to take such steps as are reasonable in all the circumstances. Therefore, you should take into account whether the required adjustments are possible, the financial implications and whether there is financial or other assistance available to you in order to take such steps (such as the Access to Work programme run by Jobcentre Plus. Through this programme, employers can get advice on appropriate adjustments and possibly some financial help towards the cost of the adjustments).

Harassment

Harassment is unwanted conduct towards a worker by an employer or another worker, because of that worker's actual or perceived disability, or association with someone with a disability. This applies to any conduct that violates a worker's dignity, or creates an intimidating, hostile, humiliating, degrading or offensive environment, even if it was not intended as such.

If it is reasonable that the unwanted conduct has had an intimidating or humiliating effect on the worker, then you may have a harassment claim made against you (even where the harassment was unintentional). A worker will not be protected if they are over sensitive and unreasonably take offence to an innocent comment.

Workers who are not the subject of the unwanted conduct will also be able to make harassment claims for behaviour that they find offensive, even if they do not have a protected characteristic.

Employers are liable for any acts of harassment undertaken by their employees in the course of their employment – whether they knew about it or not – if they fail to take reasonable steps to prevent it. 'In the course of employment' means 'done whilst at work' or 'done while 'in a workplace-related environment'. Employers can't defend a claim of harassment by showing that they did not authorise it or on the grounds that the actions were reasonable or warranted.

You can, however, escape liability for harassment if you took reasonably practicable steps to prevent it.

Victimisation

Victimisation happens when a worker is being treated less favourably because:

• They have asserted their right not to be discriminated against on the basis of their disability by making a complaint about disability discrimination
• They gave evidence or information in a complaint of disability discrimination
• They take any other action under the EA relating to disability discrimination
• They have alleged that you or another worker has contravened disability discrimination legislation
• You believe that they have done or may do any of these things

Positive action

Positive action in training and applying for particular positions

If you reasonably think that a group of your workers who share a protected characteristic (race, age, sex, sexual orientation, marital or civil partnership status, gender reassignment, pregnancy and maternity, disability or religion or belief)...

• suffer a disadvantage connected to their protected characteristic,
• have needs that are different from the needs of those who do not have their protected characteristic, or
• have a disproportionately low participation in an activity, such as partaking in training activities, doing particular work or filling particular posts in your workforce,

...then you can take any proportionate action that enables or encourages the group of workers to overcome or minimise their disadvantage; meets their needs; or enables or encourages them to participate in the activity.

You are allowed to provide special training to members of the group. You can also encourage members of the group to apply to do particular work or fill posts (for example, by saying that applications from them will be particularly welcome).

This does not mean that you can discriminate in favour of the members of the group when it comes to choosing people to do the work or fill the posts, unless you meet the circumstances described below under 'Positive action in recruitment and for promotions', as that could be unlawful discrimination.

Positive action is not the same as 'positive discrimination', which is where members of a particular group who have a protected characteristic are treated more favourably regardless of their circumstances.

Positive action in recruitment and for promotions

The Equality Act 2010 makes it lawful for employers to take positive action when recruiting and making internal promotions in order to overcome a disadvantage connected with a protected characteristic or where the inclusion of people with the protected characteristic in a particular activity is disproportionately low. You will be able to take positive action where all of the following apply:

• There are two equally qualified candidates to choose between
• You do not have a policy of treating persons with the protected characteristic more favourably
• Positively discriminating is a proportionate means of achieving a legitimate aim.

The Act does not require employers to take positive action and it is therefore voluntary.

Positive discrimination

Positive discrimination is unlawful except if used when recruiting or promoting individuals in the limited circumstances described above.

Tribunal claims

If you dismiss an employee, or if they resign because they claim that they have been discriminated against by you, then they may make a complaint of unfair dismissal to an Employment Tribunal. In addition, they may also claim for damages on the grounds of discrimination which they will be able to do regardless of their length of service.

The Employment Tribunal has exclusive jurisdiction to consider claims of disability discrimination. A complaint must be presented within three months from the date of the act complained of, unless the tribunal considers that it is fair and reasonable in the circumstances to hear the claim outside that period.

While there is a limit on the amount of compensation a tribunal can award for unfair dismissal, there is no limit in cases of unlawful discrimination.

Further information

For further information see the Acas guidance for employers and employees on discrimination, bullying and harassment.