The Equality Act 2010 protects against many forms of disability discrimination. This article covers these forms of discrimination generally. For an general overview of discrimination, see the following pages:
- Discrimination, Harassment and Victimisation: Overview
- Discrimination against parents and carers in the workplace
It is against the law for employers to treat someone less favourably because they have a disability. The Equality Act 2010 protects against the following types of disability discrimination:
- Direct disability discrimination
- Discrimination arising from disability
- Indirect disability discrimination
- Duty to make reasonable adjustments
What is a disability under the Equality Act?
The term ‘disability’ has a broad meaning. Under the Equality Act 2010, it is defined as a physical or mental impairment that has a ‘substantial’ and ‘long-term’ adverse effect on the ability of a person to carry out normal day-to-day activities.
‘Substantial’ means more than minor or trivial.
‘Long-term’ means an impairment that lasts (or is likely to last) 12 months or longer. An impairment will still be considered long-term if the effects are fluctuating, recurring or likely to affect the rest of a person’s life.
‘Normal day-to-day activities’ includes amongst other things shopping, washing, dressing, preparing and eating food, talking or walking. In other words, activities carried out by most people fairly regularly.
The impairment does not need to be a diagnosed medical condition as long as it has a substantial and long-term adverse effect on the ability of a person to carry out normal day-to-day activities. It covers mental health conditions such as learning difficulties, depression and anxiety. It also covers physical impairments including back problems, mobility difficulties, sensory impairment and severe disfigurement.
Some people, including those with HIV, cancer and multiple sclerosis (MS) are automatically protected as disabled and do not need to satisfy this test. Some conditions are not considered a “disability” under the Act. They include (amongst other things) hay fever, tattoos and piercings.
Direct disability discrimination
Direct disability discrimination occurs when an employer treats an employee less favourably than another in a similar situation because of their disability.
A disabled person claiming this type of discrimination needs to compare their treatment with how someone else is treated (this is called a ‘comparator’). The comparator can be someone who is not disabled or someone who has a different disability, but they must have the same abilities and skills as the disabled person.
Example: A disabled person with arthritis can type 40 words per minute using an adapted keyboard, but only 20 words per minute using a normal keyboard. The disabled person is rejected from the administrative job on the grounds that his typing is too slow. In this case, the correct comparator would be someone without arthritis but who can also type 40 words per minute using a normal keyboard.
Direct disability discrimination also covers the following types of discrimination:
Discrimination by association
This form of disability discrimination occurs when a person is treated unfavourably because of the disability of another person. For example, a job applicant is not offered a position after explaining that they care for someone with a mental health problem.
For more on associative disability discrimination, see our article on discrimination against parents and carers in the workplace.
Discrimination by perception
This form of disability discrimination happens when an individual is treated worse because a person or organisation believes they have a disability. For example, a job applicant is not offered a position because of a perceived hearing-loss, which is not the case.
Discrimination arising from disability
Discrimination arising from disability occurs where an employer treats a disabled person unfavourably because of something connected to their disability. Examples include absence from work due to illness, the need for regular breaks or difficulties with writing, reading or talking.
Discrimination arising from a disability can be lawful if it can be shown that there is a genuine business need for the discrimination (e.g. the health and safety of others) and that is reasonably necessary in order to achieve that aim, and there are no less discriminatory means available.
A disabled person claiming this type of discrimination does not have to compare their treatment to how someone else is treated. It is only necessary to show that the disabled person is treated unfavourably because of something to do with their disability.
It is not unlawful discrimination if an employer did not know that the person was disabled. An employer must show that they did all they could reasonably be expected to do to find out about a disability.
Indirect disability discrimination
Indirect disability discrimination occurs when an employer has a policy or practice that applies to all employees but puts those with a disability at a disadvantage when compared to others.
In some circumstances, the discrimination may be objectively justified where the employer can show that there is a real business need and that their policy is reasonably necessary in order to achieve that aim, and there are no less discriminatory means available.
Example: A job advert for a teaching role in a city centre location invites only candidates who can drive to apply, even though this is not a key requirement of the job. Without objective justification, this provision will indirectly discriminate against people who cannot drive due to their disabilities.
Unlike discrimination arising from disability, there is no requirement that the employer knows about an employee’s disability; the disadvantage experienced by the employee simply has to flow from the policy or practice.
Duty to make reasonable adjustments
An employer is under a duty to make ‘reasonable adjustments’ to premises or working practices to help disabled employees who are placed at a substantial disadvantage because of their disabilities. Failure to comply is a form of discrimination.
The duty can arise where a disabled person is placed at a substantial disadvantage by:
- An employer’s policy or practice;
- A physical feature of the employer’s premises; or
- An employer’s failure to provide an auxiliary aid.
Example: The EHRC Employment Statutory Code of Practice contains examples of potential adjustments that employers might be required to make.
An employer could argue that it is unreasonable to be expected to make adjustments. What is reasonable will depend on the particular circumstances. The employer will need to carefully consider whether the adjustment will remove or reduce the disadvantage for the person with the disability, is practical to make, and is affordable.
In case of dispute, an employment tribunal can determine whether a particular adjustment would have been reasonable to make in the circumstances. It will take into account matters including the cost of the adjustment in light of the employer’s financial resources and the disruption that the adjustment would have had on the employer’s activities.
An employer will have a defence if they do not know that the individual is disabled and likely to be placed at a substantial disadvantage because of their disability.
Disability harassment occurs where:
- a person engages in unwanted conduct related to a disability; and
- the conduct has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile degrading, humiliating or offensive environment.
It can involve nicknames, name-calling, unwanted jokes or other behaviour which a person may find upsetting. The harassment can be verbal, written or physical.
A person need not be aware that their conduct is unwanted. Furthermore, a person bringing a claim for harassment need not be disabled; a non-disabled person could bring a claim where another employee creates an offensive environment, for example, by using inappropriate language which is related to disability.
Example: a colleague with a hearing impairment is verbally abused in the open plan office about her impairment.
Victimisation occurs when a person is treated unfairly because they have made a complaint about discrimination or harassment under the Equality Act 2010, or helped someone else to make a complaint or the employer thinks that they are doing, intend to do or suspects that they are doing or intending to do these things.
Example: a manager refuses an individual’s promotion because the individual supports a colleagues’ complaint to their employer about disability discrimination. In such circumstances, an employee is protected under the Act where they make or support an allegation of victimization in good faith.
What to do if you think you have experienced discrimination
If you believe your employer has treated you unfairly, you can consider taking the following steps. You can also contact us for advice.
Try to resolve the issue
Speak to your employer in the first instance and try to resolve things informally. Try to keep communications friendly if you can. It can sometimes be more effective if you focus on solutions and the way forward, rather than the things you are unhappy about.
Often, employers can become defensive if accused of discrimination, but you can say if think you are being treated unfairly because of a protected characteristic.
Raise a grievance
If the discussions with your employer don’t resolve the issue, or you think your employer has treated you very unfairly and the relationship is breaking down, you can consider raising a grievance. You can find more information in our article on grievances.
Raising a grievance is important if you think you might later raise a claim in the Employment Tribunal because failure to follow internal resolution methods can disadvantage your claim.
It is advisable to try and resolve things amicably, as formal processes can damage your relationship with your employer. For some legal insight into grievances and tips on how to engage with your employer before it reaches this point, see our article on grievances do more harm than good.
Your employer should not ignore your grievance, fail to hear it within a reasonable time or reject it out of hand (as doing so could amount to a breach of your employment contract). However, your employer is not obliged to uphold your complaint.
If you are unhappy with the outcome of your grievance, you should normally be able to appeal it; the procedure will be set out in your employer’s grievance policy. If you are unhappy with the outcome of the appeal process, you can contact us for advice.
Make a claim in the Employment Tribunal
If the above steps do not resolve the matter you could bring a claim in the employment tribunal.
Proving discrimination claims can be difficult: the discrimination is rarely made explicit. Most employers will not actually say: ‘the reason why I’m dismissing you is because of your protected characteristic’. So it is necessary to produce evidence to prove the real reason for the treatment so that the Tribunal can infer from the facts what really happened.
The Tribunal will follow a two stage ‘burden of proof’ test. Firstly, they decide whether you have provided sufficient proof that an act of unlawful discrimination has taken place. Then, the burden of proof will shift to your employer to provide a non-discriminatory explanation for their actions.
Tribunal claims can be expensive and long, and there is no guarantee of success, so this step should be considered cautiously. It is often best to try to resolve the issue with your employer.
If you are considering bringing a claim, you can contact us for advice.
This advice applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.