The Equality Act 2010 provides protection against unlawful discrimination, harassment and victimisation for the protected characteristic of 'disability'.
- 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’.
Long-Covid is understood to be a condition suffered by individuals who have recovered from Covid-19 but are still showing certain symptoms as a result that are affecting their daily lives. Currently, the NHS website lists the following symptoms:
- extreme tiredness (fatigue)
- shortness of breath
- chest pain or tightness
- problems with memory and concentration ("brain fog")
- difficulty sleeping (insomnia)
- heart palpitations
- pins and needles
- joint pain
- depression and anxiety
- tinnitus, earaches
- feeling sick, diarrhoea, stomach aches, loss of appetite
- a high temperature, cough, headaches, sore throat, changes to sense of smell or taste
Whilst it is debatable as to whether long-Covid could be considered a disability, recent guidance from Acas advises organisations to respond to it as though it is. Please click here for details