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Sadly, individuals who have a disability often face discrimination (being treated unfairly) in different aspects of their lives.
The law offers protection if you have a disability in relation to your working life, from applying for jobs to your employment and any dismissal.
In this guide, we look at how an employment tribunal will decide if you have disability, who is protected and how the protection against discrimination works.
Who is protected?
The law protecting individuals from disability discrimination is set out in the Equality Act 2010. Under this law job applicants, employees, apprentices, contract workers and partners are all protected from discrimination, which includes discrimination as a result of a disability.
The act also gives the definition of an “employee” a wide meaning and covers those who work under a contract of employment and those who have a contract “personally to do work”. This means individuals who fall between being employees and self-employed (such as certain construction workers and often those employed in the gig economy) are also covered.
But to have the protection of the law, you need to be able to show that you have a disability. Just because you are considered to be disabled in other areas (for instance, for benefits) does not mean you will be automatically classed as disabled under the Equality Act, although it is likely you will be.
What is a disability?
The Equality Act 2010 says that a person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
That being a bit of a mouthful, we’ll breakdown the definition and look at the different parts in more detail.
Physical or mental impairment
An impairment is a health condition that may restrict what you can do in some way.
A physical impairment relates to your body (both inside and out). The following are just a few examples of different physical impairments:
- Crohn’s disease
There are obviously many, many others and it is important to remember that not all disabilities are visible.
A mental impairment covers both mental illness and learning difficulties.
The following are examples of mental impairment:
- bi-polar disorder
Stress, although it can be serious and have an impact on health, is not a mental impairment. But if the level of stress causes depression, the depression would be a mental impairment.
Again, these are just a few examples and there are many different types of mental illness and learning difficulties.
Normal day-to-day activities
“Normal” covers quite a wide range of things which many people do on a regular basis. Some examples of “normal” activities given in official guidance include social activities; household tasks (such cleaning); being able to wash and dress yourself without too much difficulty; shopping; cooking and eating food; reading; and watching TV.
Vid has depression which results in him being unable to concentrate on watching TV or read a book.
Lola has arthritis in her hands which makes dressing very difficult when it comes to fastening buttons, belts and tying shoelaces. She can do it but it takes a long time and is painful.
Marius has agoraphobia (an anxiety disorder) which means he does not go out to socialise with friends.
Jenny has chronic fatigue syndrome. She cannot vacuum, change beds or put away a weekly shop as she finds it too exhausting.
When looking at the ability to do normal day-to-day activities, the focus should be on what you can’t do, rather than what you can do.
It may be that the impairment does not have an impact on all aspects of your life but that does not mean you are not disabled.
Generally, particular work activities are not considered “normal” day-to-day activities, but some are. These include job-related tests (either when you are applying for a job or going for a promotion); working night shifts; having to stand for a long time; and lifting goods of a weight that most people would be able to manage.
Seth suffers from a condition that means he has weakness in his muscles. He works in a restaurant where he has to lift pans. He struggles to do this. His muscle weakness is likely to be seen as having a substantial effect on his ability to carry out normal day-to-day activities as he is having difficulty lifting objects that many people would be able to do.
Joanna works in a warehouse and has to unload large bags of sand. She has a problem with her lower back which means she cannot move very heavy objects. So long as Joanna is able to move objects that are not overly heavy, her back problem is unlikely to be seen as having a substantial effect on her ability to carry out normal day-to-day activities as most people do not have to lift very heavy objects on a regular basis.
The physical or mental impairment must have a substantial effect on your ability to carry out normal day-to-day activities.
But what does “substantial” mean?
Well, when it comes to looking at disability, substantial just means that the effect has got to be more than minor or trivial. So, the impact your impairment has, does not have to be very big.
The law states that when looking at whether something has a substantial effect, an employment tribunal should consider what the effect would be if the individual was not taking medication or receiving some other form of medical aid (other than glasses where they correct a sight issue).
Faisal has clinical depression for which he takes anti-depressants. The anti-depressants have improved Faisal’s mood and ability to concentrate a great deal. However, a tribunal should consider what Faisal’s mood and ability to concentrate would be if he stopped taking the anti-depressants.
Anita has type 1 diabetes. This is controlled by taking insulin. However, a tribunal should consider what would happen if Anita stopped taking insulin.
In addition, the law states progressive conditions should be taken to have a substantial effect where the impairment has had some effect (and the condition is likely to result in a substantial adverse effect in due course).
William is in the early stages of Alzheimer’s disease. He has started to become forgetful. Even though his forgetfulness is only minor, as it is likely his condition will get worse and there will be a substantial adverse effect, it will be classed as having a substantial effect now.
Long-term adverse effect
The substantial adverse effect on your ability to carry out normal day-to-day activities must be long-term.
This means that it must have lasted for 12 months or be likely to last for 12 months (or the rest of the person’s life if this is less than 12 months).
Don breaks his leg playing football. It’s a bad break and it takes Don nearly 4 months to fully recover. This is not a disability as even though Don has a physical impairment which has a substantial adverse effect on his ability to walk (a normal day-to-day activity), it has not lasted for 12 months.
An impairment will also be classed as continuing if it goes away but is likely to recur. So, if it is likely to come back after 12 months, this will make it long-term.
Marta has a history of clinical depression. Her current episode subsides after 10 months but is likely to recur. This will be regarded as long-term.
An employment tribunal will consider if a medical condition is likely to have a long-term adverse effect as the time of the discrimination. Likely means that it “could well happen”. So, even if you have a condition that is unlikely to have long-term effect at the time of the discrimination, but it ends up lasting over 12 months, you would not be classed as having a disability. It also means that if you do have a condition that is likely to last for 12 months but you recover before this, you could still claim to have been disabled at the time of the unfair treatment.
Going back to Don and his broken leg. Don cannot get to work and is dismissed after 2 months. After this, Don discovers that the break has not healed properly and needs surgery. In total, Don cannot walk unaided for 13 months. But Don will not have a disability claim as at the time of his dismissal, the impact of his broken leg was not likely to last for more than 12 months.
While for most conditions, you will need to show that it has a substantial, long-term adverse effect on your ability to carry out day-to-day activities in order to claim you are disabled, there are a few conditions where the law says that you are automatically classed as having a disability. These are called “deemed” disabilities.
- blindness and sight impairment;
- cancer, HIV and MS; and
- sever disfigurement (not caused by tattoos or piercings).
- Neeta discovers a lump in her breast. She is told she has breast cancer. She has no other symptoms. Neeta will be classed as disabled. She does not need to show that the cancer will have a substantial, long term adverse effect on her ability to carry out normal day-to-day activities.
Conditions which are not disabilities
The law also says that certain conditions will not be disabilities, even if you can show that it has a substantial, long term adverse effect on your ability to carry out normal day-to-day activities.
- addiction or dependency on alcohol, nicotine or illegal (non-prescribed) drugs;
- exhibitionism (exposing private parts of your body);
- voyeurism (such as secretly watching someone undress);
- a tendency to steal;
- a tendency to set fires;
- a tendency to physically or sexually abuse others;
- disfigurement caused by tattoos or piercings; and
- hay fever.
These are called “excluded” conditions.
But, if an excluded condition causes another impairment that meets the definition of disability, you will be covered.
Mary is an alcoholic. Whilst her alcoholism does have a substantial, long term adverse effect on her ability to carry out normal day-to-day activities, it cannot be classed as a disability. However, Mary has liver disease which results in periods of serious illness. This has been caused by her drinking too much alcohol. Mary’s liver disease can be classed as a disability if it meets the definition even though it has been caused by an excluded condition.
Jon is addicted to heroin. This has led to depression. As with Mary, the depression could be a disability even though it is caused by his addiction. The addiction itself, cannot.
What types of disability discrimination are there?
There are different types of discrimination which apply to all protected characteristics (sex; pregnancy and maternity; marriage and civil partnership; race; age; gender reassignment; religion or belief; sexual orientation and disability – see Discrimination claims):
- direct discrimination;
- indirect discrimination;
- harassment; and
In addition to this, if you are disabled you are also protected against discrimination arising from your disability and your employer is also under a duty to make reasonable adjustments to accommodate your disability and remove any disadvantage you may face.
We look at the different types of disability discrimination in more detail below.
What types of conduct by my employer am I protected against?
If you are a job applicant, the employer must not discriminate against you in terms of:
- how they decide who to employ;
- the terms you will be offered (such as hours of work and pay); and
- by not offering the job.
If you are an employee, your employer must not discriminate against you in terms of:
- your terms of employment (hours, pay etc);
- the chance of promotion, transfer, training or receiving certain benefits;
- dismissing you; or
- subjecting you to any other unfair treatment.
These cover all aspects of the employment relationship.
Bringing all this together, we look at the different types of claims you could bring.
Direct disability discrimination occurs where your employer treats you less favourably that it treats or would treat others because of your disability.
This means you need to compare how you have been treated to how a colleague (whose circumstances are otherwise very similar to yours) has been treated or would be treated. This colleague must have the same abilities as you. Where there isn’t a real person to compare yourself with, you can make up a comparator. This is called a “hypothetical” comparator.
James is applying for a job. He has dyslexia. He meets all the job requirements. The employer knows James has dyslexia and decides to not offer him the job because they believe his written work will not be to a high enough standard. Lucy, who also meets all the requirements but does not have dyslexia, is offered the job instead. This is direct discrimination. The reason James was not offered the job was due to an assumption based on his dyslexia.
Janet is diagnosed with MS. On finding out about this, without finding out anything more, her employer does not put her forward for promotion. This is direct discrimination.
Direct disability discrimination is fairly uncommon as often the reason for the less favourable treatment is not the disability itself, but a reason related to it (see below).
The law is also wide enough to give you protection if your employer discriminates against you because they think you have a disability (even if you actually do not) or because you are in some way connected or associated with someone who does have a disability.
There is also additional protection in place against direct discrimination during the recruitment process. It is unlawful for an employer to ask a job applicant a health-related question except in particular circumstances. If the employer does ask a health-related question and decides not to employ a disabled person as a result, the employer will have to show that the disability itself was not the reason the person was not employed. See Can I be asked questions about my health during a job interview?
Discrimination arising from a disability
This is one of the most common types of disability discrimination. It occurs where the employer treats you unfavourably because of something arising as a result of your disability and the employer cannot justify its conduct.
Sara is dismissed due to sickness absence. Most of Sara’s sickness absence has been caused by severe asthma. The dismissal is not due to the asthma itself but the absence that has arisen as a result of it.
Luther has muscular dystrophy and uses a wheelchair. He applies for a job. The employer believes that the wheelchair cannot be accommodated and does not offer Luther a job. Again, the reason for not offering the job is not the muscular dystrophy but the use of a wheelchair that has arisen as a result of the disability.
Jakub has significant sight impairment. He applies for a promotion to a role that would require him to travel to meetings around his local area. He does not get the job as he is unable to drive and the bus service is poor. The reason he is not promoted is his inability to travel that arises from his sight impairment, not the sight impairment itself.
But while the employer’s actions may amount to unfavourable treatment, this will not be discrimination if the employer can show that it has a real and genuine business reason for the treatment and that there wasn’t a less discriminatory way of dealing with the issue (i.e. that their response was proportionate).
Let’s consider this using the above examples.
Sara’s employer only employs 3 people. Her sickness absence has a massive impact on the employer’s business as the other staff cannot cover her work and it’s difficult to find temporary staff who can do the work as they need to be trained to use the equipment Sara uses. Giving Sara further warnings about her attendance will not make any difference as she cannot help being ill. In this case, her employer may be able to show that Sara’s dismissal is for a genuine business reason and there was no other real alternative.
The employer in Luther’s case will have to show that the wheelchair could not be accommodated. If there is not the physical space for the wheelchair (and reasonable alterations to the workplace cannot be made – see “Reasonable adjustments”), whether the employer can adequately explain why Luther could not be offered the job will depend on the job itself. Could Luther work from home or from one of the employer’s other places of work? If not, this might not be discrimination even though it’s unfair on Luther.
Jakub’s employer would need to be able to show why Jakub has to attend the meetings in person. The meetings will need to be very important to the business. Also see “Reasonable adjustments” below. If they are essential and there is no alternative but for Jakub to attend in person, this might not amount to discrimination.
An employer is under a duty to make reasonable adjustments to avoid a disabled person being put at a disadvantage compared to people who are not disabled.
This comes into play where it is the employer’s provision, criterion or practice causing the disadvantage or the physical feature at the employer’s workplace. A “provision, criterion or practice” covers all sorts of decisions and policies imposed on employees, such as attendance policies, working hours, place of work, and management decisions etc.
It is worth pointing out that the duty is to make reasonable adjustments rather than any adjustment the disabled person needs. An adjustment might not be reasonable if, for example, it is too expensive to put in place; if there are rules stopping property being altered; or if it would impact on the work or others in a negative way.
If you do have a disability and changes at work could help you, then you should discuss this with your employer. There are lots of different adjustments that can be considered depending on your circumstances, such as changing the number of hours you have to work, changing break times or providing more breaks, changing the time you have to start work, changing some of your duties or changing your place of work.
Where reasonable adjustments have not been made, it will be very difficult for an employer to argue that it is justified in discriminating against an employee for a reason connected to their disability.
If Sara works near something that triggers her asthma, it might be a reasonable adjustment for her employer to move Sara to somewhere else.
Luther’s employer will need to consider whether physical changes can be made to the workplace to accommodate his wheelchair, such as a lift, changes to doorways and the provision of an accessible toilet. If physical changes just can’t be made because of the layout or if they would be too expensive given the income of the business, they should consider whether the work could be done somewhere else or whether Luther could work from home.
There are a number of adjustments Jakub’s employer should consider such as whether video or telephone conferencing could be used; whether the meetings could take place at Jakub’s place of work; whether the time of the meetings could be changed to fit in with public transport and/or whether it would be reasonable to provide a taxi for some or all of the meetings.
What is considered reasonable will depend on the disadvantage being suffered and how far the disability can be accommodated by that particular employer. A large employer with a lot of resources will be able to do more than a much smaller employer in terms of expensive adjustments, but not all adjustments are expensive.
Indirect discrimination occurs where a condition, decision or practice (this is called a provision, criteria or practice or PCP) is applied to all employees but it disadvantages those with a particular disability (or individuals with the same symptoms). Where this is the case, the employer can try and justify the treatment if it has a genuine business reason and there isn’t a less discriminatory way of acting.
For example, a requirement that all employees undergo a medical assessment before working in a certain place; selection criteria for redundancy, promotion or recruitment; or particular working hours could all be a PCP.
Darius suffers from chronic fatigue syndrome. His symptoms are worse in the morning and it takes him a long time to get up and get ready. Darius’s employer requires all employees to start work at 8am. Darius is often late and gets a warning for this. This could be indirect discrimination. The PCP is the requirement to start work at 8am. This is putting Darius at a disadvantage as he struggles in the morning and it would put others with chronic fatigue syndrome at a similar disadvantage. Unless his employer can show a real business need as to why everyone must start work at 8am, then this is likely to be indirect discrimination.
In most cases, it will be easier for you to claim other types of disability discrimination than relying on indirect discrimination.
Using Darius’s case, giving him a warning is as a result of his lateness which, in turn, has arisen due to his chronic fatigue syndrome so he would have a claim for discrimination arising from a disability. He might also have a claim due to his employer’s failure to make reasonable adjustments if it would be possible for Darius to start work at a later time.
But, for the other types of discrimination, your employer must know (or could be reasonably expected to know from the information it has) that you have a disability. This is not the case for indirect discrimination. Therefore, if you have not told your employer about your disability, then you could still bring a disability discrimination claim.
Under the Equality Act 2010, harassment occurs where a person engages in unwanted conduct related to a disability and the conduct is intended to (or has the effect of):
- violating your dignity, or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for you.
Where the person did not intend to do any of those things, but it had that effect on you, it will only be classed as harassment if that’s reasonable. So, if you take offence at something minor that most people would not be offended by, you will not have a claim.
Types of behaviour that could amount to harassment include:
- not being able to access a meeting due to mobility issues;
- not being able to access toilet facilities;
- “jokes” being made about a particular disability;
- being imitated due to your disability; and
- unkind comments being made about a particular disability.
The protection against harassment also covers being harassed based on someone else’s disability.
Zoe uses a wheelchair. A colleague will sometimes move her wheelchair (without asking her to move) if she is in his way. Zoe finds this humiliating. This is harassment.
Adam suffers from incontinence. Some of his colleagues find this funny and make fun of him, sometimes preventing his access to a toilet. Adam is embarrassed by this. This is harassment.
Anika’s daughter is deaf and her speech is impaired. Anika overhears two colleagues making fun of the way her daughter talks. This could be harassment.
Victimisation has a very specific, legal meaning. It happens where you are treated unfairly for asserting your rights not to be discriminated against or support someone else who has. For example, if you bring a disability discrimination claim, give evidence for someone else’s disability discrimination claim or grievance, or raise a grievance saying you have been discriminated against.
If, having done any of the above, you are treated unfairly (such as you are given a warning for something when you wouldn’t otherwise have been given a warning, not promoted, shunned at work, or not allowed to go on training) because of it, this will be victimisation.
Hannah has a severe limp and walks with difficulty. Her colleagues have made fun of the way she walks, taking her off and generally been unkind. She has raised a grievance about this. As a result of this, her manager sees her as a troublemaker and starts being unfairly critical of her work and refuses to consider her for promotion. This is victimisation.
Jonas gave a statement supporting Hannah’s grievance. The manager also labels him a troublemaker and doesn’t allow him to go on a training course. This is victimisation.
What will an employment tribunal do?
If you bring a disability discrimination claim, if your employer does not accept you have a disability, an employment tribunal will have to decide if you are disabled. It might do that at a separate hearing as if you are not disabled, you will not have a claim.
If you win your disability discrimination claim, you will be entitled to compensation. The amount of money you receive will depend on whether you have lost earnings because of your treatment. If you have your compensation will be based on how much you have lost and also how the discrimination has impacted on you (this is called injury to feelings). See Discrimination claims.
For indirect discrimination claims, if your employer did not know you were disabled and did not intend for you to be discriminated against your compensation could be reduced.
What to do if you have been discriminated against
Talk to your employer
If you need reasonable adjustments making you should discuss this with your manager or a member of human resources.
Raise a grievance
If your employer refuses to make reasonable adjustments or you feel you have been discriminated against in some other way, such as for a reason related to your disability, you should raise a grievance. If you don’t have one, ask for a copy of your employer’s grievance procedure.
Discrimination claims need to be brought within 3 months of the date of the act of discrimination (this time limit is extended by ACAS Early Conciliation). Where your employer has not made reasonable adjustments, you should bring your claim within 3 months of when the adjustment should have been made.
Disability is a complicated area of law and much will turn on your specific circumstances and those of your employer. It’s important that you get the right advice from a specialist in employment law who can guide you through the process of ACAS Early Conciliation and a tribunal claim.
With an honest and ethical approach to law, at Truth Legal you will have access to our specialist team of lawyers to help you with all your employment law matters. Our Head of Employment Law is Navya Shekhar, an employment law solicitor with over 10 years’ experience.
If you believe you have been discriminated against and need help with a disability discrimination claim or grievance, call us on 01423 788538 or contact us here.
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