Disability discrimination

The meaning of 'disability' and 'disabled person'

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. Under the Disability Discrimination (Northern Ireland) Order (DDO), 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.

A disabled person is protected not only by the DDO, but reference can also be made to various regulations, codes of practice and guidance rules.

Before deciding whether there is discrimination on the grounds of a disability, an Industrial 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, self harming, dementia and autism. An impairment, which may result in a worker being protected under the DDO, 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 employee has an addiction to alcohol, nicotine or any other substance they will not be regarded as having a disability for the purposes of the DDO.

2.) The adverse effect - The tribunal must ascertain whether the impairment identified at stage 1 adversely affects the employee's ability to carry out normal day-to-day activities. These include, for example, 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 must be 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.

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:

• The disability of another person (also known as discrimination by association). Examples include discriminating against an able-bodied employee because they have to care for a disabled family member or because they refused to follow instructions that would require them to treat someone less favourably because of their disability (such as where you put pressure on a manager to dismiss a worker because of their disability.

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

Usually, the only available defence to a direct discrimination claim is proving that there was no discrimination.

Disability-related discrimination

Disability-related discrimination occurs when you treat a worker less favourably for a reason which relates to their disability. 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.

Previously, this would mean comparing the treatment of a disabled worker with how a person without the disability would be treated. For example, a disabled worker who is dismissed because he is regularly absent from work due to illness would be compared to a non-disabled worker who was not absent from work. He will be able to claim disability-related discrimination because he is being discriminated against for a reason (his absence from work) which relates to his disability.

This has now been changed by a House of Lords decision, and the treatment must now be compared to the treatment of a person without the disability, but to whom the reason for the treatment did apply. Therefore, in the above example, the disabled worker will be compared to a non-disabled worker who was also absent from work for a similar period of time. It would be disability-related discrimination only if you would not have dismissed the non-disabled worker for being absent from work for so long.

The House of Lord's decision makes it much harder for a disabled worker to prove that they have been subjected to disability-related discrimination.

You may not be liable if you were unaware of the worker's disability and there were no factors that should have alerted you to the possibility that they were disabled.

However, this may not be the case if there were factors that should have alerted you to the possibility that they might be disabled. For example, you dismiss an employee due to long periods of absence from work, in circumstances where the cause of the illness is unknown. Medical test results later show that the employee is suffering a disability. You may still face a discrimination claim even though, unbeknown to you at the time, the absences were because of 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 DDO, 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 employee, are set out in the DDO and include:

• Allocating some of your employee's work to someone else
• Transferring the employee to another post or another place of work
• Making adjustments to the buildings where the employee works
• Being flexible about the employee's 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 the Jobcentre. 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 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.

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 than another worker 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 DDO relating to disability discrimination
• They have alleged that you or another worker has contravened disability discrimination legislation
• You know that they intended to do, or you suspect that they have done or intend to do, any of these things

Tribunal claims

If you dismiss an employee, or if an employee resigns because they claim that they have been discriminated against by you, then they may make a complaint of unfair dismissal to an Industrial 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 Industrial 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.

The Equality Commission for Northern Ireland

The Equality Commission for Northern Ireland is the body responsible for promoting equality in Northern Ireland, including equality in the workplace. They can assist with advice regarding discrimination and equal opportunities. They can take legal action on behalf of your employee. They promote equality and fair treatment of employees, customers and the users of services.