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Disability Discrimination

According to the Equality Act 2010, it is unlawful to be discriminated against because of a disability.

The Act is very specific in its definition of disability – A disability refers to any mental or physical impairment that has a continuing and considerable detrimental effect on an individual’s ability to perform normal everyday activities.

Under this definition, you can only be considered disabled if you meet both criteria:

  1. The disability must be long-term, which means it must be existing for 12 months or more. For example, an arthritic condition or a persistent breathing condition resulting from a lung infection.
  2. The disability must be substantial, which means it must be serious enough to hamper your activities. For example, it causes you to take longer than normal to complete daily tasks such as dressing up or working at the computer.

The Act is very clear that physical and mental impairments that are either minor or short-term are not considered as disabilities.

Conditions That Are Automatically Treated As Disabilities Under The Equality Act

There are a few conditions that are automatically treated as disabilities under the Equality Act. These include:

  • Conditions that affect certain organs such as heart disease, stroke and asthma
  • Problems with sight or hearing
  • Progressively deteriorating conditions such as muscular dystrophy, motor neurone disease, HIV, multiple sclerosis and forms of dementia
  • Recurring or fluctuating conditions such as fibromyalgia, osteoarthritis, ME (Myalgic Encephalopathy) and rheumatoid arthritis, in which the severity of the symptoms may vary at different periods of time
  • Learning disabilities and learning difficulties such as dyslexia, dysgraphia and dyspraxia
  • Diagnosed mental health conditions such as schizophrenia, depression, obsessive compulsive disorder, bipolar affective disorders and eating disorders
  • Impairments due to injury to the brain or body
  • Cancer
  • HIV infection

If you suffer from any one of these conditions and experience discrimination because of it, you may be entitled to make a claim for unlawful discrimination.

If you do not have one of the above conditions but you want to make a claim for disability discrimination, the onus is on you to show you have a disability that meets the definition as laid down in the Act.

Conditions That Do Not Count As Disabilities Under The Act

Some conditions, regardless of their effect on your everyday activities, do not count as disabilities under the Equality Act. These include:

  • Exhibitionism or voyeurism
  • A tendency to steal or start fires
  • A tendency to physically or sexually abuse others
  • Hay fever- except where it aggravates some other condition.

If you are considering filing a claim for discrimination because of one of these conditions, you will have to prove the condition has a substantial, long-term effect on your daily life. In such cases, the cause of the impairment is not important. What matters is the effect that it has on your life and your ability to carry out daily activities.

Avoiding Disability Discrimination In The Workplace

What can you expect in the workplace if you have one of the conditions that are considered a disability?

The Equality Act recognises that bringing about equality in the workplace for someone who is disabled may mean having to make a few changes in the way the workplace is structured. Accordingly, the Act states that employers have a duty to make reasonable adjustments to accommodate employees with disabilities so they are not disadvantaged when doing their job.

What are the ‘reasonable adjustments’ you can expect your employer to make?

‘Reasonable adjustments’ could include things like providing extra support, adapting work equipment, improving the layout of the office space or removal of physical barriers so you have the same access as a non-disabled employee to everything that you need to do your job.

In the majority of cases, the adjustments that need to be made will be simple and low cost. An employer is not required to do more than is reasonable. What is reasonable will depend on the size and nature of the business among other things.

If there is a delay in implementing the necessary support structure/system, short-term temporary arrangements should be put in place to enable disabled workers to get on with the job.

Depending on your disability, your employer may need to involve others, such as your physician or a specialist, to understand exactly how your disability may affect the health and safety of the workplace and how to minimise those risks while making reasonable adjustments so you are not disadvantaged.

Should You Tell Your Employer About Your Disability?

Many people are reluctant to disclose their disability to their employers lest it is used to discriminate against them in the workplace, either directly or indirectly. While you are under no compulsion to disclose your disability and neither can your employer question you about it at any time, it is important to realise a few things with regards to disclosure about any disability:

  1. Your employer can only make the stipulated reasonable adjustments if they are aware of your disability. If they are not informed, it could put you at a disadvantage because you would not be able to avail of the additional help that you need to perform your job efficiently.
  2. Disability discrimination is unlawful according to the Equality Act 2010. This means you cannot be treated less favourably than other employees for any reason connected with your disability, unless such action is justified. If you think you are being discriminated against because of your disability, you may be entitled to file a disability discrimination claim. Employers are aware of your rights in this regard and will be wary about discriminating against you.
  3. Reasonable adjustments are applicable to employees with physical as well as mental health conditions.

With the Equality Act in place, you no longer have to go to great lengths to hide your disability for fear of being discriminated against. Being upfront about your disability can in fact be to your advantage as your employer is legally required to make the necessary reasonable adjustments to accommodate your disability so you have access to all the facilities as the rest of the employees. If at any point during the recruitment process or during your employment tenure you feel that you are being discriminated against because of your disability, you should know that the law is very clearly in your favour.