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Insight

Disability discrimination in Employment 20 Dec 2022

What conditions are classed as a ‘disability’?

There is a limited number of conditions that are automatically classed as a disability under the Equality Act 2010 (the Act), namely:

  • Cancer
  • HIV infection
  • Multiple sclerosis
  • Blindness, severe sight impairment, sight impairment and partial sightedness (provided it has been certified by a consultant ophthalmologist)
  • Severe disfigurements

 

Any other health condition must satisfy the definition of disability under the Act - which can be broken down to four questions:

  • Does the person have a physical or mental impairment? 
  • Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities? 

Day-to-day activities include things like: shopping, getting dressed, preparing and eating food, carrying out household tasks, and walking.

  • Is that effect substantial, i.e. more than minor or trivial?
  • Is that effect long-term? It must have lasted or be likely to last at least 12 months.

 

Determining whether someone satisfies this definition is a complex exercise and if the employer does not concede someone is a disabled, the Employment Tribunal will have to answer the above questions.  In reaching its decision, the Tribunal will take into account any relevant medical evidence regarding the impairment. 

Who is protected?

The rights and protections afforded in the Act apply to employees, workers, job applicants and ex-employees (so you don’t actually have to be in work to be covered).  It’s important to note that an employer cannot be liable for any discriminatory acts under the Act unless it knew, or should have known about the person's disability e.g. because of the reason and amount of time someone has had off work.

 

It’s also worth noting that individuals who are not themselves disabled can be protected under the Act too; if they are treated less favourably because:

 

  • of their association with someone with a disability, e.g. a disabled family member;
  • the employer wrongly perceives someone to have a disability.  For example, they wrongly think somebody has a mental impairment that meets the definition of disability and dismisses them as a result; or
  • they refused to comply with their employer’s instruction to discriminate against a disabled person.

 

What are the different types of discrimination?

It is unlawful for an employer to:

 

  • Discriminate directly by treating a job applicant or employee less favourably than others because of their disability, e.g. failing to promote someone because they have been diagnosed with cancer.
  • Discriminate by treating a job applicant or employee unfavourably because of something arising in consequence of their disability without objective justification. An example would be someone being dismissed because of their level of absence caused by their disability.  In this situation, the employer would need to be able to objectively justify the decision to dismiss them.
  • Discriminate indirectly by applying a ‘provision, criterion or practice’ (PCP) that disadvantages job applicants or employees with a shared disability, and that PCP cannot be objectively justified.  For example; an expectation that everyone works long hours could be a PCP that disadvantages individuals with certain health conditions, e.g. Multiple sclerosis.
  • Fail to comply with its duty to make reasonable adjustments, i.e. to  take such steps as is reasonable to try and reduce or remove a disadvantage caused by the person’s disability.  For example, this could be making an adjustment to a recruitment process, providing an appropriate auxiliary aid, or amending someone’s duties and/or working pattern.
  • Harass a job applicant or employee, i.e. engage in unwanted conduct related to the person’s disability that has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.  More information about harassment in the workplace can be found in our Harassment and Bullying Insight.
  • Victimise a job applicant or employee because they: have brought or intend to bring a claim under the Act; give evidence in connection with someone else’s claim under the Act; do anything in connection with the Act; or allege someone has contravened the Act.
  • Ask health questions as part of a recruitment process, unless certain limited exemptions apply.

 

The Equality and Human Rights Commission have published a Statutory Code of Practice which provides more detail on the different types of discrimination covered by the Act, along with some useful examples.

 

Who can be liable for discriminatory conduct?

It’s not just the employer who may be liable for any discriminatory treatment; individual employees (such as managers) and third parties (such as agents) can be held liable as well.  Therefore, when issuing a claim in the Employment Tribunal it is advisable to consider issuing claims against any decision makers/perpetrators, as well as your employer. 

 

Deadline to bring a claim

Normally, you have three months less one day from the date of any act of discrimination (which includes a failure to do something) in which to issue a claim in the Employment Tribunal.  If there has been a course of discriminatory conduct then the deadline is three months less one day from the end of the last in that series of events.  Please note that a failure to make a reasonable adjustment will not normally form part of a course of discriminatory conduct and therefore the deadline will be three months less one day from the failure to make each individual reasonable adjustment. 

 

Prior to issuing a claim you need to contact the conciliation service ACAS to commence Early Conciliation (EC). If EC is unsuccessful you will be given a Certificate Number, which you will need to put on the ET claim form you submit to the Tribunal.  The actual deadline to commence a claim in the Tribunal will depend on when you start EC and the date the certificate is issued.

 

Disclaimer: The information and opinions within this guide are meant for general information purposes only.  They are not intended to constitute legal or other professional advice and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances.
 
If you want or require specific legal advice, join our legal advice service. Our employment specialists who will be able to provide expert advice and guidance on your issue. 

 

 

Brendan Donohue Sq Brendan Donohue
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