What is a disability?

Under the Equality Act 2010, a disability is defined  as a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.

Just because someone is not registered disabled does not mean they do not have a disability. They will still be covered by disability legislation if the condition they have is long term and substantive.

What is a long term or a substantive condition?

• Long term: a condition that lasts more than 12 months
• Substantial: means a disorder is more than minor and it takes the individual much longer to do a normal task

How do I know if someone is disabled?

If an individual has a physical or mental impairment, that has a ‘substantial’ and ‘long-term’ negative effect on their ability to undertake normal day to day activities, they would be deemed to be disabled. These could include (but not limited to):

• Mobility difficulties
• Need for hearing or sight aids
• Learning difficulties including dyslexia and dyspraxia
• Long term mental health conditions including:
• depression
• anxiety
• bipolar
• phobias
• eating disorders
• panic attacks
• schizophrenia
• Progressive or genetic disorders
• Conditions where the individual suffers from cumulative effects such as fatigue or pain
• Unseen health conditions such as diabetes or asthma
• Severe disfigurement

The 2010 Equality Act also covers recurring or fluctuating conditions such as:

• Rheumatoid Arthritis
• MyalgiaEncephalitis (ME)
• Chronic Fatigue Syndrome (CFS)
• Fibromyalgia
• Depression
• Epilepsy

Progressive or genetic disorders

With progressive and genetic disorders such as HIV, Cancer, Multiple Sclerosis, Motor Neurone Disease & Muscular Dystrophy, individuals are automatically covered under the Equality Act 2010 from the day they are diagnosed.

What about people who have recovered?

People who have had a physical or mental impairment within the definition are protected from discrimination even if they recover. So, if an individual was discriminated against because they use to have a disability, they could still be protected under the law.

Discrimination & Employment

Discrimination and Recruitment

As an employer you have a duty not to discriminate against an employee or prospective employee, including but not limited to:

• Advertising or roles and the recruitment process
• Contracts, policies and handbooks,
• Reward ( pay and benefits)
• Training, development and promotion
• Termination, Dismissals & Redundancy

What is direct discrimination ?

This is when an individual is treated less favourably than someone else because they are disabled. For example:

• Refusal to give a blind person a role that requires computer imputing
• Buying someone with dyslexia a dictionary
• Giving an employee a box of plaster as they are always poorly due to having a disability

What is indirect discrimination ?

As an employer you also have a duty to ensure that your employees are not indirectly discriminated against due to your business policies and operating practices.

What other disability protections are there ?

Employees are also protected from discrimination on the basis of:

• Discrimination by perception
• The employer perceiving that the employer may not be able to undertake a role due to a physical or mental disability e.g. not employing a person on the grounds they are blind and the role requires extensive travel to attend meetings

• Discrimination by association
• Discrimination of an able-bodied person on the grounds of association with a disabled person e.g.  treating an employee less favorably due to caring for a disabled person

• Harassment
• Allowing a disabled person to be treated in an intimidating, hostile, degrading, humiliating or offensive manner e.g. be subjected to spoken or written words or abuse, imagery, physical gestures, facial expression, mimicry, jokes or pranks

What are the consequences for disability discrimination ?

As an employer, if you discriminate or allow your employees to discriminate against an employee or prospective employee with a disability, either directly or indirectly, you could face a tribunal claim for disability discrimination.

The fines / financial awards that can be made against an employer for disability discrimination are unlimited. 

In 2019 – 2020 the average tribunal award for disability discrimination was £27,000 with awards up to £265,000.