What is classed as a disability ?
The Equality Act says you have a disability if you have a physical or a mental condition which has a substantial and long-term impact on your ability to do normal day to day activities.
You may not want to consider yourself disabled:
You may fit this definition but do not consider yourself as being disabled because you simply get on with things and do not your disability spoil your life; if this is how you deal with your disability you still have rights.
Some conditions are less obvious:
Some disabilities are obvious, the loss of a limb for example, others are less so, arthritis for instance.
If you have a progressive condition like HIV, cancer or multiple sclerosis, and can still currently carry out normal day to day activities, you are protected under the Equality Act as soon as you are diagnosed with a progressive condition.
You are also covered by the Equality Act if you had a disability in the past. For example, if you had a mental health condition in the past which lasted for over 12 months, but you have now recovered, you are still protected from discrimination because of that disability.
The Equality Act 2010 says that you must not be discriminated against because:
you have a disability
someone thinks you have a disability (this is known as discrimination by perception)
you are connected to someone with a disability (this is known as discrimination by association)
It is not unlawful discrimination to treat a disabled person more favourably than a non-disabled person.
There are extra types of disability discrimination
There are six main types
failure to make reasonable adjustments
discrimination arising from disability
This happens when someone treats you worse than another person in a similar situation because of disability. For example:
if during an interview for a job you tell the potential employer that he has multiple sclerosis. The employer decides not to appoint you even though you are the best candidate they have interviewed, because they assume you will need a lot of time off sick
Indirect discrimination occurs when an organisation has a particular policy or way of working that has a worse impact on you as a disabled person compared to people who are not disabled.
This type of discrimination is unlawful unless your employer is able to show that there is a good reason for the policy and it is proportionate means of achieving it; known as objective justification.
a job advert states that all applicants must have a driving licence. This puts some disabled people at a disadvantage because they may not have a licence because, for example, they have epilepsy. If the advert is for a bus driver job, the requirement will be justified. If it is for a teacher to work across two schools, it will be more difficult to justify
Failure to make reasonable adjustments
If you are disabled your employer is under a duty make adjustments so you can do your job as easily as non-disabled people; and is known as the ‘duty to make reasonable adjustments’.
So if your employer fails to make these reasonable adjustments this could form the basis of a disability claim to an Employment Tribunal, a claim for ‘failure to make reasonable adjustments’.
an employee with mobility impairment needs a parking space close to the office. However, her employer only gives parking spaces to senior managers and refuses to give her a designated parking space
The word ‘reasonable’ will depend on a number of factors. A small business might not have the resources available to make the adjustment. However, if in the above example your employer has a number of parking spaces it would probably be seen as reasonable give one to you close to the entrance.
Discrimination arising from disability
This form of discrimination was a new provision in the Equality Act 2010.
It will be unlawful if you are treated badly or unfavorably not because of your actual disability but something connected with it.
If you are blind and need a guide dog and your employer does not allow dogs into their premises this could fall under discrimination arising from your disability disability.
If you have a condition that requires you to have time off for medical appointments and you are treated unfavorably as a result.
Your Employer needs to know about your disability
This does not apply unless the person who discriminated against you knew you had a disability or ought to have known.
In the same way your employer could justify their actions in Indirect Discrimination, they may be able to defend a claim against them discrimination arising from your disability if they are able to show a good reason for the treatment and it is proportionate.
Harassment occurs when someone treats you in a way that makes you feel humiliated, offended or degraded. for example:
if you as disabled person are regularly sworn at and called names by colleagues at work because of your disability
Harassment can never be justified
You will be able to make a claim for harassment against the harasser and your employer. However your employer might be able to defend the claim if they can show they did everything they could to prevent the harassment.
Victimisation occurs when you are treated badly because you have made a complaint of discrimination under the Equality Act.
It can also occur if you agree to support someone who has made a complaint of discrimination.
If you make complaint of disability discrimination and your employer says they will dismiss you unless they withdraw the complaint
Your employer threatens to demote or dismiss you because they believe you intend to give evidence in colleague’s disability discrimination claim
Winrow Solicitors are experienced with discrimination claims so call us today if you believe you have been discriminated because of your disability. We will give you a free half hour assessment of the merits of your case.