Disability Discrimination

Disability discrimination occurs when you are treated less favourably or put at a disadvantage for a reason that relates to your disability.

The treatment does not have to occur more than once, it can also relate to the application of a rule or policy or the existence of physical or communication barriers which make accessing something difficult or impossible.  The discrimination does not have to be intentional to be unlawful.

You must not be discriminated against because of the following:

• 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.  A disability means a physical or a mental condition which has a substantial and long-term impact on your ability to do normal day to day activities under the Equality Act.

Other conditions known as progressive conditions are covered by the Equality Act regardless of whether they affect you to carry out your day to day activities.  You are also protected from the date you are diagnosed.  Below are the conditions which are known as “progressive”:

• HIV
• Cancer
• Multiple Sclerosis, even if you are currently able to carry out normal day to day activities.

If you have had a disability in the past, for example, a mental health condition which lasted for over 12 months, but you have now recovered, you are still protected from discrimination because of that disability.

There are six main types of disability discrimination these are the following:

• direct discrimination- when someone treats you worse than another person in a similar situation because of your disability
• indirect discrimination- a company may have a policy or way of working that will have an adverse effect on disabled employees compared to employees who are not disabled.  This is unlawful unless a company can show a good reason for the policy or way of working
• failure to make reasonable adjustments- an employer should make reasonable adjustments for disabled employees, however what is reasonable will depend on a variety of factors
• discrimination arising from disability- protects you from being treated badly because of something connected to your disability
• harassment- occurs when someone makes you feel humiliated, offended or degraded
• victimisation- will occur if you have made a complaint in relation to a discrimination or where you are assisting someone else in their complaint

There are certain circumstances when you can be treated differently due to a disability namely it will always be lawful to treat a disabled employee more favourably then a non-disabled employee.  Other situations may arise whereby it will be lawful to treat a disabled employee with a particular disability more favourable than another disabled employee.  Below are some examples of when this may be acceptable:

• having a particular disability may be essential for the job role for instance an organisation supporting deaf people might require that an employee whose role is providing counselling to British Sign Language users is a deaf BSL user
• a Company may be taking action to encourage or develop people with a particular disability. For instance, an employer is aware that people with learning disabilities have a particularly high rate of unemployment, so sets up a mentoring and job-shadowing programme for people with learning disabilities to help them prepare to apply for jobs

An employer cannot ask health questions with a view to filter out disabled job applicants. Questions cannot be asked until a job offer has been sent and even then only in specific circumstances will these questions be acceptable.

If you need any Employment advice, contact our Specialist Team