It is true that most of us will suffer ill health at some stage during our lives. However, these are typically temporary conditions that don’t have a sustained impact on the way we live from day-to-day. Under the Equality Act 2010 a person is classified as disabled if they have a physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day-to-day activities. The UK Government’s most recently published Family Resources Survey, which collected information on a representative sample of private households, has found that 21% of people reported a disability. When weighted, this constitutes 13.3 million people. Additionally, in the report, it was found that Wales was the joint highest region with the highest percentage of people reporting a disability. It found that 25% of people in Wales reported having a disability and when weighted, this adds up to 0.8 million people.
TUC’s ‘Disability and “hidden” impairments in the workplace report found that 24% of disabled respondents felt that disability was treated negatively in their workplace.
The Equality Act 2010 protects anyone who has, or has had, a disability.
This occurs when someone is treated less favourably than someone else because they are disabled. In the case of discrimination arising from disability, it has to be shown that the disabled person is being treated unfavourably because of something connected with their disability. Direct disability discrimination includes:
- Discrimination by perception which occurs when a person who does not have a disability is perceived to be disabled. For example, when applying for a job, the employer wrongly assumes that the individual has a mental health condition, and does not invite them to interview, ignoring the ability of the candidate.
- Additionally, discrimination by association occurs when a person is treated less favourably because they are linked or associated with a disabled person. For example, if the mother of a disabled child was refused service because of this association, then this would constitute unlawful discrimination.
Indirect disability discrimination
This occurs where there is a rule, policy or practice that applies to everyone but particularly disadvantages people with a given disability when compared to people who don’t have that disability. This is not justified unless it can be shown that it is intended to meet a legitimate objective in a fair, balanced and reasonable way. It is important to strike a balance between the negative impact of the rules and the reasons for applying them. A lack of financial resources alone is unlikely to be a good enough justification for a rule that indirectly discriminates.
Disability harassment is unwanted behaviour related to disability that has the effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.
Under the Act, harassment can never be justified. However, if an organisation or employer can show it did everything it could to prevent people who work for it from behaving like that, then you cannot claim against the organisation. However, claims can be made against the harasser.
This occurs when a person (person A) victimises another person (person B) because person B has made, or is believed to have made, a complaint about discrimination or harassment under the Act, or helped someone make the complaint. This applies whether or not the person being victimised is disabled.
Additionally, there are two other types of discrimination linked to disability:
Discrimination arising from disability
This occurs when someone is treaters unfavourably because of something linked to their disability but not because of the disability itself. For example, needing time off work for medical appointments. This applies if the person who discriminated against you knew you had a disability or ought to have known. Discrimination of this type is unlawful unless the organisation is able to prove that there is an objective justification, so a good reason, for the treatment.
Duty to make reasonable adjustments
Section 20 of the Equality Act provides the duty to make reasonable adjustments. These are split into 3 aspects in the Act:
- There is a legal requirement to make reasonable changes to the way things are done to avoid any substantial disadvantage to the disabled person. For example, change a policy.
- The Act requires reasonable changes to be made to the built environment to avoid putting a disabled person at a substantial disadvantage because of a physical feature. For example, making changes to the structure of a building to improve access.
- There is also a legal requirement to provide auxiliary aids and services to avoid any disadvantage compared with those who are not disabled. This could be achieved by providing information in an accessible format, an induction loop for customers with hearing aids, special computer software or additional staff support when using a service.
So, if an employee has a disability which makes it difficult to carry out their work, employers should consider what reasonable changes can be made in the workplace to help. Collaboration with the employee is valuable to work out ways that the employer can support them.
Failure to make adjustments that are reasonable will result in the failure to comply with the duty amounts to discrimination under the Act.
Circumstances when being treated differently due to disability is lawful
It is always lawful to treat a disabled person more favourably than a non-disabled person.
Treating a particular disabled person more favourably than other disabled people may be lawful in some circumstances:
- There may be an occupational requirement where having a particular disability may be essential for the job.
- An organisation may take positive action to encourage or develop people with a particular disability to tackle underrepresentation of people with a particular disability. For example, in an organisation where there is an awareness of low numbers of people with learning disabilities within employment, an organisation may set up mentoring schemes to help them gain experience in employment.
Information and Support
- Diverse Cymru:
- Disability Sports Wales
- Disability Wales
- Gofal – Mental health and wellbeing charity
- Hafal – Mental health and carers support
- Learning Disability Wales
- Mencap – The voice of learning disability
- Mind Cymru – Mental health support
- Scope – advice and support for disabled people