What is Disability Discrimination?

The Equality Act sets out the law around disability discrimination.

Disability discrimination is where you are treated less favourably because of a disability, or because of something arising from a disability.  Harassment because of disability is another type of disability discrimination, as is a failure to make reasonable adjustments to help reduce the impact of your disability on your working environment.

What counts as a disability?

For the purposes of the Equality Act, a disability is a physical or mental impairment that has a substantial and long term adverse effect on your ability to do normal daily activities.

There are some conditions that are automatically regarded as a disability, including blindness, severe disfigurements, cancer, HIV and multiple sclerosis. There are also some conditions that will not be regarded as a disability, such as addiction to alcohol or other substances, a tendency to set fires or steal or abuse others, and hay fever.

What is disability discrimination?

The Equality Act prohibits discrimination because of your disability and because you are associated with someone else who has a disability. All employees, workers and job applicants are protected from disability discrimination.

You are protected from unfair treatment:-

• because you have a disability, or
• because you are thought to have a disability, or
• because you’re associated with someone who has a disability.

In line with other ‘protected characteristics’ (types of discrimination eg age, disability, race etc) you are protected from:-

• Direct discrimination – where you are treated less favourably than someone else because of your disability, or because you are thought to have a disability, or because you’re associated with someone who has a disability.
• Discrimination arising from disability – where you are treated unfavourably because of something arising in consequence of your disability, where your employer can’t show that it was a proportionate means of achieving a legitimate aim.
• Indirect discrimination – where the employer has a “provision, criterion or practice” that applies to a group of employees (or applicants), but it puts those with your disability at a particular disadvantage compared to others without it, actually puts you at that disadvantage, and it can’t be objectively justified.
• Failure to make reasonable adjustments – where your employer does not make adjustments to your working environment to help you, where it is reasonable to do so, i.e. where the adjustment would have reduced your disadvantage, would have been reasonable in terms of cost and any disruption to operations it would have had.
• Harassment – where unwanted conduct has the purpose or effect of violating your dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for you.
• Victimisation – where you suffer disadvantage or harm because of (for instance) complaining about discrimination.

There are circumstances where an employer is given the chance to justify disability discrimination. For instance, if your employer can objectively justify its actions by showing that what they did was a proportionate means of achieving a legitimate aim, they will have a defence. Harassment and victimisation can’t be justified.

Disability discrimination is where you are treated less favourably because of a disability.

Examples of disability discrimination

Sadly, disability discrimination is all too common.  Following the pandemic, mental health issues have increased, which can amount to a disability if your condition meets the definition in the Equality Act.  Menopause can also be a disability if your symptoms meet the definition, though we don’t expect to see menopause added as a standalone protected characteristic any time soon.

Examples of disability discrimination include:-

• Being selected for redundancy because of your disability, or disability related absences being counted towards your absence rate in a redundancy selection process
• Not being offered a promotion because of your disability
• Being dismissed because of your disability or because of disability related absences
• Being dismissed because you haven’t got a particular paper qualification usually required, because your disability affects your ability to take and pass written exams
• Your employer failing to make reasonable adjustments that would help you to do your job
• Being bullied or harassed because of your disability

How do I report disability discrimination?

Generally, you will need to raise a grievance at work to report disability discrimination. The first step is to check your employer’s grievance procedure, which should tell you who to send it to and what to include.

You will need to set out details of what has happened, who was involved, and why you are unhappy about the way you have been treated. You should be invited to a meeting to discuss matters in full and your employer should investigate fully before issuing a written decision.  If you aren’t satisfied with the decision, you should be allowed to appeal.

If you don’t get a satisfactory outcome to your grievance after appealing, your next step would be to start Acas Early Conciliation before bringing an Employment Tribunal claim. In a claim, it’s very important to set out your claims with reference to the type of discrimination you think you’ve been subjected to. If you don’t, you may find that your employer demands that you set out the details more clearly or provide further information on your claims.

Employment Law Solicitor

If you need more help with the subjects covered here, or with writing your grievance letter or appeal, or with making sure that your claim includes everything it needs to have the best chance of success, then do reach out to our expert solicitors.  You can leave a comment below, email us at employment@qlaw.co.uk, or call us on 03300 020 863.

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