Disability discrimination

What is disability discrimination?

Disability discrimination in the workplace is prohibited under s.6 of the Equality Act 2010. Under s.6 it is prohibited to discriminate against applicants, contract workers, persons personally providing services, employees or former employees in the workplace.

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Who qualifies to claim for disability discrimination?

The following categories (who are disabled for the purposes of the Act):

  • Applicants
  • Contract workers
  • Persons personally providing services
  • Employees
  • Former employees
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What is the protected characteristic of disability?

You must be physically or mentally disabled to qualify to claim for disability discrimination. Physical disability means a “physical impairment”. Mental disability means a “mental impairment”.

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How do I prove that I’m disabled?

In order to prove physical or mental impairment you must show that the impairment affects your ability to participate in professional life on a daily or frequent basis, that the effect is substantial and “long-term”, and that you could have carried out the tasks at work but for your disability.

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What types of disability discrimination are there?

  • Direct disability discrimination – you are being (or have been) treated less favourably than other comparable workers because of your disability. Example: you’re dismissed because your manager sees you as a drag on productivity because of your disability.
  • Indirect disability discrimination – a provision, criterion or practice has been applied to the whole or a part of the workforce which puts disabled workers at a particular disadvantage and does (or would) in fact put you at a disadvantage. Example: your employer reduces the number of days that workers can take for sick leave every year.
  • Failure to make reasonable adjustments – the failure by your employer to make reasonable adjustments to the workplace if you’re affected by a provision, practice or criterion, or a physical feature, or the lack of an auxiliary aid, which puts you at a substantial disadvantage in comparison with persons who are not disabled. Example: you are deaf and your employer fails to provide you or other workers with sign-language training.
  • Discrimination arising from disability – you are treated less favourably than other employees and that treatment cannot be justified. Example: you have a visual impairment and are dismissed because you can’t do your work as quickly as a non-disabled worker.
  • Disability-related harassment – you are subjected to unwanted conduct at work related to your disability which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for you or violating your dignity. Example: you’re mocked for using a wheel-chair by a co-worker.
  • Victimisation – you’re subjected to a detriment because you’ve done a protected act (or intend to do a protected act). Example: you’re demoted because you’re giving evidence for a co-worker (or former employee or applicant) in their claim for disability discrimination.
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Defences to disability discrimination

Direct disability discrimination cannot be justified once shown. Nor can a failure to make reasonable adjustments.

Indirect discrimination and discrimination arising from disability can be justified by your employer (or potential / former employer). Your employer must show that the discriminatory conduct was for a legitimate reason and that the application of the relevant treatment was proportionate.

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