Disability discrimination takes place when someone is discriminated against, victimised or harassed on the basis of their disability.
Certain disabilities are always covered (provided there has been discrimination) under the Equality Act 2010. These disabilities include: blindness, cancer, HIV, Multiple Sclerosis and severe disfigurements. Conversely, certain disabilities are never covered by the Equality Act 2010 (unless they arise as a consequence of an eligible disability). These include: substance addiction, exhibitionism, voyeurism, tattoos and a tendency to abuse others.
If a person claiming disability discrimination is not suffering from a specifically defined type of disability then the Tribunal will decide on a case-by-case basis whether a person has a long-term, substantial, physical or mental impairment which has an adverse impact on their ability to carry out day-to-day activities. “Substantial” means it is more than minor or trivial. Whether an impairment has “long term effect” generally means assessing whether the impairment has lasted or is likely to last at least 12 months.
- Direct disability discrimination: Direct disability discrimination occurs where, because of disability, a person treats another less favourably than he or she treats or would treat others. An example is where, during an interview, a job applicant informs the prospective employer that she has Multiple Sclerosis and is unsuccessful. If the successful applicant was picked because she does not have a disability, then this is potentially direct discrimination. Positive discrimination in favour of a disabled job applicant or employee is allowed.
- Discrimination arising from disability: Discrimination arising from disability occurs where someone is treated “unfavourably” because of something arising in consequence of their disability, but not because of the disability itself. An example is where an employer dismisses an employee because she has had 15 weeks’ sick leave. The employer knows that the employee has Multiple Sclerosis and that her sickness is related to it. The decision to dismiss is made on the basis of the sick leave and not the disability itself. However, the employee has been treated unfavourably because of the disability related sick leave.
- Failure to make reasonable adjustments: The duty to make reasonable adjustments is unique to the protected characteristic of disability. Employers must make reasonable adjustments to make sure disabled workers aren’t placed at a substantial disadvantage. This includes making reasonable adjustments during recruitment and interviews, for example physical changes such as ensuring there is wheel chair access. It also includes flexible working. The adjustment(s) need to be reasonable, which involves considering how practicable it is, the costs and resources of the employer.
- Indirect disability discrimination: Indirect disability discrimination occurs where an employer applies a practice, provision or policy which applies to all but puts disabled people at a particular disadvantage compared to others (without the disability). Indirect discrimination is unlawful, unless the employer can show that it is a proportionate means of achieving a legitimate aim.
- Harassment related to disability: Disability harassment occurs where both the perpetrator engages in unwanted conduct related to disability and the conduct has the purpose or effect of violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim. For example making offensive jokes relating to disability .
- Victimisation: this is where someone is subjected to a detriment because they have made a complaint or raised a grievance about discrimination (or they intend to) or because they are assisting someone else who has complained about discrimination for example by giving evidence in proceedings (or they intend to). Examples of victimisation include passing over for promotion or not giving a bonus to an employee because that employee has submitted a complaint about disability discrimination.
Compensation for discrimination is uncapped, meaning the Tribunal can award a substantial amount. The compensation can take into account financial losses and ‘injury to feelings’, intended to compensate the victim for the stress and anxiety suffered as a result of the employer’s unlawful acts of disability discrimination. The amount of an award may be increased if the employer has acted in a particularly malicious manner.
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