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Disability discrimination

Overview
Javaid, Makbool - Simons Muirhead and Burton
Overview

The Equality Act 2010 provides protection against unlawful discrimination, harassment and victimisation for the protected characteristic of 'disability'.

Key points

  • The core definition of ‘disability’ is a physical or mental impairment, which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.
  • Four types of disability discrimination are unlawful: direct discrimination, indirect discrimination, discrimination arising from disability, and failing to comply with the duty to make reasonable adjustments.
  • Direct discrimination occurs where a person is treated, or would be treated, less favourably ‘because of’ a disability compared with others in like-for-like circumstances.
  • Indirect disability discrimination occurs when a provision, criterion or practice (PCP) puts a disabled employee at a disadvantage compared with those without that disability. An employer may be able to justify the PCP as a proportionate means of achieving a legitimate aim.
  • Discrimination arising from disability occurs where a person is treated unfavourably because of something arising from a disability and the employer cannot show this is a proportionate means of achieving a legitimate aim.
  • Discrimination also occurs where the employer fails to make reasonable adjustments to avoid the disadvantage caused by the PCP or a physical feature of the workplace, or to provide an auxiliary aid or service. 
  • An occupational requirement (where the work requires a person to have a particular disability) can be a lawful exception to direct and indirect discrimination.
  • Harassment occurs where unwanted conduct related to disability violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.
  • Victimisation occurs where a person is subjected to a detriment because of carrying out a ‘protected act’ (for example, bringing a discrimination claim). 
  • It is unlawful for an employer to ask job candidates about their health (except in specified circumstances) until the applicant has been offered a job.
  • Employers are liable for acts of discrimination, harassment and victimisation carried out by their employees ‘in the course of employment’.