Disability Discrimination for Employees

From a legal perspective, the definition of disability under the Equality Act 2010 is: 

“A person (P) has a disability if— 

• (a) P has a physical or mental impairment, and 
• (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.” 

Some medical conditions are expressly deemed to be disabilities, including blindness, severe disfigurements, cancer, HIV and multiple sclerosis. 

If a condition is not a deemed disability, it is for the tribunal to decide whether it meets the definition of disability under the Equality Act 2010 on the balance of probabilities. Expert medical evidence may assist a tribunal in making that determination. 

Conditions which are excluded from the definition of disability are tendencies to set fires, steal or physical or sexual abuse of other persons, exhibitionism, voyeurism, tattoos and piercings, or hay fever. 

1. Direct Discrimination – treating someone less favourably than others because of their disability
2. Indirect Discrimination – imposing a provision, criterion, or practice that applies to all but disproportionately disadvantages disabled people
3. Discrimination arising from disability – treating a disabled person unfavourably because of something arising from, or in consequence of, their disability. This is a form of discrimination which arises as a symptom of the person’s disability
4. Failure to make reasonable adjustments – failure to accommodate the needs of a disabled person, where such adjustments would prevent a substantial disadvantage
5. Harassment – unwanted behaviour or conduct related to a person’s disability that either violates their dignity or has the purpose or effect of creating an intimidating, hostile, degrading, humiliating, or offensive environment
6. Victimisation – subjecting someone to a detriment because they have done a protected act (brought a claim) about disability discrimination or are considered likely to do a protected act (i.e. bring a claim) 

Yes, indirect discrimination and discrimination arising from disability can sometimes be objectively justified if the person or employer applying the provision, criterion or practice can show that it is a “proportionate means of achieving a legitimate aim”. 

The Equality and Human Rights Commission Code suggests adjustments that might be reasonable for an employer to make: 

• Making adjustments to premises (physical or structural) 

• Acquiring or modifying equipment 

• Providing information in accessible formats (e.g. braille, audio) 

• Allocating some of the disabled person’s duties to another worker 

• Employing a support worker to assist a disabled worker 

• Transferring the disabled worker to fill an existing vacancy 

• Modifying disciplinary or grievance procedures 

• Adjusting redundancy selection criteria 

Adjustments are not limited to just one adjustment. 

Yes, if they meet the definition of disability under Section 6 of the Equality Act 2010. 

Yes, an employer may request a medical examination to understand the nature of an employee’s disability and determine what reasonable adjustments might be necessary. However, any such request must be reasonable and handled sensitively. Employers should also obtain the employee’s consent before conducting or requesting such an examination.