DISABILITY DISCRIMINATION

What is disability discrimination?

Disability discrimination does not simply affect those with a physical disability but can affect employees where an impairment may not be obvious but still be protected under the EqA. Approximately 90% of disabilities are not clearly visible.

Disability is defined in the EqA as:

• an employee who has a physical or mental impairment
• which has a substantial and long-term adverse effect
• on their ability to carry out normal day-to-day activities.

Substantial adverse effect means more than trivial and can include the time taken, or the way in which, an activity is carried out.

Long-term means it has lasted or is likely to last 12 months.

Normal day-to-day activities are things people do on a regular or daily basis, such as: shopping; reading and writing; having a conversation or using the telephone; watching television; getting washed and dressed; preparing and eating food;, carrying out household tasks; walking and travelling by various forms of transport; and taking part in social activities.

Such activities can include general work-related activities, and study and education-related activities, such as: interacting with colleagues; following instructions; using a computer; driving; carrying out interviews; preparing written documents; and keeping to a timetable or a shift pattern. They now also include: an employee’s ability to participate fully and effectively in working life on an equal basis with other employees.

The EqA protects not only those who currently have a disability but also those who have had a disability in the past.

What could be a disability?

Some conditions are expressly deemed to be a disability under the EqA:

• blindness
• severe sight impairment
• cancer
• HIV infection and Multiple Sclerosis.

Certain conditions are expressly stated not to be impairments under the EqA: addiction to alcohol, nicotine or any other substance; hay fever and the tendency to steal.

Other conditions are referred to as hidden disabilities or invisible disabilities and includes:

• Asperger’s Syndrome
• Autism Spectrum Disorder
• Attention Deficit Hyperactivity Disorder (ADHD)
• Dyslexia
• Dyspraxia
• Obsessive Compulsive Disorder
• Post-Traumatic Stress Disorder
• Diabetes
• Epilepsy
• Depression
• other neurodiverse or mental health conditions.

What types of disability discrimination are there?

Disability discrimination can be:

• direct discrimination
• indirect discrimination
• discrimination arising from disability
• failure to make reasonable adjustments
• harassment
• victimisation.

What is direct disability discrimination?

An employer (or other person) discriminates against an employee under section 13 of the EqA, if:

• because of an employee's disability
• the employer (or other person) treats the employee less favourably than the employer (or other person) treats or would treat others.

Less favourable treatment means a detriment of a kind that a reasonable person would or might take the view that in all the circumstances you have been disadvantaged.

An unjustified sense of grievance cannot amount to a detriment. It is not necessary to demonstrate some physical or economic consequence.

In claiming direct disability discrimination, an employee will need to prove that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs.

For the purposes of establishing direct disability discrimination, it does not matter whether the employee has a particular disability, as discrimination can be:

• by perception
• by association. 

Examples of direct disability discrimination

• an employer does not promote an employee with a disability due to wanting a certain "public image"
• an employer treats an employee less favourably as they are perceived to have autism when they do not
• an employer treats an employee less favourably because of the disability of someone with whom the employee associates (eg because the employee’s spouse has cancer).

Direct disability discrimination will also occur if an employer instructs, causes or induces another to commit discrimination. It will also commit an infringement if it causes detriment to an employee because eg they refuse to obey an instruction to act in a way that would disadvantage employees with a disability.

What is indirect disability discrimination?

Indirect disability discrimination occurs under section 19 of the EqA where:

• an employer applies to an employee a provision, criterion or practice (PCP)
• the employee has a protected characteristic
• the employer applies (or would apply) that PCP to persons who do not have that protected characteristic
• the PCP puts or would put the employee at a particular disadvantage when compared to other persons without that protected characteristic
• the employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.

In other words, indirect disability discrimination occurs where the employee’s employment is subject to an unjustified condition which because of their disability, the employee finds it more difficult to meet.

In determining whether there has been a detriment, it will be necessary to establish a pool of employees for comparison on a like-for-like basis of those that have and have not been affected by the PCP.

Example of indirect age discrimination

• an employee with ADHD is required work in an open plan office without aids such as noise cancelling headphones.

The Equality Act 2010 (Amendment) Regulations 2023, a new provision of indirect associative discrimination has been introduced under section 19A of the EqA. The same provisions for ordinary indirect discrimination apply but extend to an employee who does not share a protected characteristic with a group that is placed at a particular disadvantage arising from the PCP, but who nonetheless suffers together with that group.

What is discrimination arising from disability?

Discrimination arising from disability occurs under section 15 of the Equality Act 2010 where both:

• the discriminator treats an employee unfavourably because of something arising  in consequence of their disability and
• the alleged discriminator cannot show that the treatment is a proportionate means of achieving a legitimate aim.

The something is not the disability itself but the result of their disability (eg disability-related absences that trigger an employer's attendance management policy).

No comparator is required for a claim of discrimination arising from discrimination.

For further information, see web page discrimination arising from disability

What is a failure to make reasonable adjustments?

Employers are under a duty to make reasonable adjustments to an employee with a disability under section 20 of the EqA and occurs where:

• a provision, criterion or practice (PCP) is applied by an employer
• or physical feature

places the disabled employee at a substantial disadvantage.

The duty is also engaged where a disabled employee would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with those who are not disabled.

The duty to make reasonable adjustments applies to employers in selection and interview procedures and the premises used for such procedures, as well as to job offers, contractual arrangements and working conditions.

For further information, see web page duty to make reasonable adjustments

Does an employer have to know about a disability?

An employer cannot be liable for:

• discrimination arising from disability
• direct disability discrimination
• failure to make reasonable adjustments

unless it knew, or should have known, about the disability.

What is harassment related to disability?

Harassment related to disability occurs under section 26 of the EqA during the course of employment if the conduct is unwanted and has the purpose or effect of:

• violating an employee's dignity or
• creating an intimidating, hostile, degrading, humiliating or offensive environment.

Such conduct will only amount to harassment if in all the circumstances, the perception of the conduct is reasonably considered to have that purpose or effect. A one-off act can amount to harassment.

What is victimisation?

Victimisation occurs under section 27 of the EqA when an employee is treated less favourably than another person whose circumstances are the same because they:

• brought claim under the EqA
• gave evidence or information in connection with a claim under the EqA
• did any other thing for the purposes of or in connection with the EqA
• alleged that your employer or another person has committed an act that contravenes the EqA.

Justification for disability discrimination

There will be no indirect disability discrimination, discrimination arising from disability or a failure to make reasonable adjustments if an employer’s actions are justified.

To establish justification, an employer will need to show that there is a legitimate aim (ie a real business need) and that the PCP or the something is proportionate to that aim. 

Justification must be on objective grounds with an objective balance between the discriminatory effect and the reasonable needs of the employer.

Liability for disability discrimination

An employer will be vicariously liable for the acts of its employees and workers for disability discrimination unless it can show it took reasonably practical steps to prevent it from happening.