Disability discrimination

Overview

Makbool Javaid, Simons Muirhead and Burton Last Modified  24 November 2015

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’.