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Disability discrimination

Updating author: Tina McKevitt

Summary

  • The law relating to disability discrimination is governed by the Equality Act 2010. The core provisions of the Act, which repealed the Disability Discrimination Act 1995, came into force on 1 October 2010. While the Equality Act 2010 largely consolidated previous discrimination legislation, it also: extended the definition of direct discrimination to cover less favourable treatment because of an incorrect belief that someone has the protected characteristic of disability; extended the concept of indirect discrimination to disability; introduced the concept of discrimination arising from disability; and removed the requirement for a comparator to establish victimisation. It is assumed that many of the principles that were established in the extensive body of case law that was decided under previous discrimination legislation will remain relevant in interpreting the provisions of the Equality Act 2010. For this reason such cases have been included in the body of this section together with an indication of the legislation under which they were decided.
  • Disability is a "protected characteristic" under the Equality Act 2010. A person has a disability if he "has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on [his or her] ability to carry out normal day-to-day activities". (See Definition of disability)
  • The effect of any medical treatment that the employee is receiving should be disregarded when assessing whether or not he or she meets the definition of disability. (See Medical treatment)
  • There are conditions that are specifically excluded from the definition of disability and therefore the scope of the Equality Act 2010. (See Excluded conditions)
  • The definition of "employee" for the purposes of protection against disability discrimination is wider than that contained in other employment legislation. (See Who is protected?)
  • As well as being liable for its own actions, there are circumstances in which an employer will be liable for the acts of others. Under the wider provisions of the legislation, others who are not employers may find themselves liable. (See Who is liable?)
  • The Equality Act 2010 prohibits direct discrimination (which includes discrimination by association and discrimination by perception), indirect discrimination, discrimination arising from disability, discrimination by way of a failure to comply with the duty to make reasonable adjustments, victimisation and harassment. (See Prohibited conduct)
  • It is unlawful to discriminate in the context of employment or vocational training including, in particular circumstances, after the working relationship has ended where the prohibited conduct arises out of and is closely connected to that relationship. (See Prohibited conduct in the employment context)
  • Direct discrimination is where, because of the protected characteristic of disability, a person treats another person less favourably than that person treats or would treat other persons. (See Direct discrimination)
  • Indirect discrimination is where a person with a particular disability and others who share that disability are, or would be, disadvantaged by the unjustified application of a provision, criterion or practice (PCP) when compared with others to whom the PCP is, or would be applied, and who do not share that disability. (See Indirect discrimination)
  • Discrimination arising from disability is where A treats B unfavourably because of something arising in consequence of B's disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim (see Discrimination arising from disability)
  • An employer may be able to justify the discriminatory result of a provision, criterion or practice, or unfavourable treatment arising in consequence of B's disability, by establishing that it is justifiable because it is a "proportionate means of achieving a legitimate aim". (See Justification)
  • The Equality Act 2010 imposes a duty on an employer to make reasonable adjustments where a disabled employee is placed at a substantial disadvantage by a provision, criterion or practice, a physical feature of premises occupied by the employer, or the lack of an auxiliary aid. (See Reasonable adjustments)
  • Harassment is where person A engages in unwanted conduct related to the protected characteristic of disability, which has the purpose or effect of violating person B's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her. (See Harassment)
  • Under the Protection from Harassment Act 1997, an employer may be vicariously liable for a course of conduct by one of its employees that amounts to harassment under the Act. (See Protection from Harassment Act 1997)
  • Victimisation is where person A subjects person B to a detriment because B has done, or A believes that B has done, or may do a "protected act". (See Victimisation)
  • Employers may in certain circumstances lawfully restrict work to people with a particular disability. (See Occupational requirements)
  • A person (A) to whom an application for work is made must not ask about the health of the applicant (B) before offering work to B unless the purpose of the question is for one of the permitted reasons set out in the Equality Act 2010. (See Enquiries about disability and health in recruitment)
  • Public authorities have a general duty to eliminate discrimination, harassment and victimisation; advance equality of opportunity between persons who share a protected characteristic and those who do not; and foster good relations between persons who share a protected characteristic and those who do not. (See Public authorities)

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