DISABILITY DISCRIMINATION
DO I HAVE A DISABILITY?
A disability in the legal sense is a physical or mental impairment which has a long-term and substantial adverse effect on your ability to carry out day-to-day activities. Even if you do not consider yourself as ‘disabled’ in the common use of the term, you could be protected if you meet this definition.
You do not need to have been clinically diagnosed with a medical condition to be protected by the law, but evidence from a doctor can be very helpful in establishing that you are disabled and in proving your claim.
Conditions can vary in their severity and impact. It is important to look at the effect of the condition, rather than the condition itself. In some circumstances it can be difficult to work out whether your condition qualifies for protection under the Equality Act, or your employer may dispute that it does.
It is important to understand how the law applies to your circumstances. We can help you to work out whether you are protected from discrimination by the Equality Act.
Long Term
An impairment is generally considered as having a long-term impact if it is likely to affect you for at least a year. If the effects come and go, it is the time over which they reoccur that must be long term, rather than the length of each incidence of impairment.
Substantial Adverse Effect
A substantial adverse effect doesn’t mean that the condition must stop you from doing day-to-day things. If it makes it considerably harder to do things, then it could be a disability.
If your condition is helped by treatment such as medication, aids or counselling, it is the impact of the condition before treatment that will be considered when deciding whether it is a disability.
If you have a progressive condition that does not currently have a substantial effect but is likely to in the future as it gets worse, you will most likely be protected from discrimination.
Past disabilities
Employers are also prohibited from discriminating against somebody because of a past disability which no longer impacts them.
Automatic Disabilities
Some conditions are automatically treated as a disability, without the need to show a long-term impact. These are:
Visual impairments
Multiple sclerosis
HIV
Severe, long term disfigurement
Which conditions are not disabilities?
Substance addictions are not themselves classed as a disability. However, impairments that are caused by an addiction could be a disability. For example, if you have liver disease which causes a long term, adverse effect on your health then it would be a disability, regardless of whether it was caused by an addiction.
The Equality Act also sets out conditions that are not classed as disabilities, regardless of the cause or impact. These include hay fever, tattoos or piercings, exhibitionism, and tendencies to steal, set fire to things, or abuse others.
REASONABLE ADJUSTMENTS
Your employer has a duty to make reasonable adjustments that help reduce the difficulty you face in doing your job because of your disability. The adjustments will depend upon your role and disability, but could include:
changes to the workplace, such as installing a ramp to allow wheelchair access or changes to lighting.
provision of aids such as screen readers or phones that work with hearing aids.
changes to work practices, such as altering your working times or taking breaks throughout the day.
taking extra precautions to protect you from risk if your condition makes you vulnerable, as highlighted by the COVID pandemic.
What is reasonable will vary depending upon your employer and the effects of your disability. Your employer might consider:
how much difference the adjustment will make to you
whether the cost is affordable for them
whether the adjustment is practical
whether the health and safety of others could be affected
If your employer is refusing to make adjustments that you believe are reasonable, you should first raise the issue with your employer either informally or as a grievance (though it will not prevent you making a claim if you do not). If they still refuse, you may make a legal claim.
You may claim against an employer you no longer work for if you believe that reasonable adjustments could have helped you to keep your job, so long as you are within the time limit for making a claim.
NEURODIVERSITY
Around 15-20% of the population is thought to have "alternative thinking styles" such as Autism, ADHD, Dyslexia, Dyscalculia and Dyspraxia. Better awareness around neurodiversity has led to rise in discrimination claims. In 2023, neurodivergence was a factor in 102 discrimination cases.
Symptoms can include forgetfulness, poor concentration, mood swings, sensory overload an inability to deal with stress, slow reading, erratic spelling and difficulty managing time. Where these make day-to-day activites more difficult, the condition may legally be a disability.
CAN DISABILITY DISCRIMINATION EVER BE JUSTIFIED?
Discrimination may be justified if your employer has a good reason for treating you differently, and the problem cannot be overcome by reasonable adjustments. For example, if your company turns down your application for a physical job that includes heavy lifting because you have a condition that would make the work difficult or impossible.
Your employer can refuse to make adjustments that are not reasonable based on the considerations listed above. However, your employer should consider other ways that they can support you. For example, installing a lift may be too expensive, but they could allow you to work on the ground floor.
Your employer may refuse to make adjustments if they don’t know or have reason to believe that the request is related to a disability. You are not obliged to tell your employer about your disability, but you cannot claim for failure to make reasonable adjustments if you choose not to disclose your disability and your employer could not reasonably be expected to know that you are disabled.
NEXT STEPS
How the law applies to your claim will depend upon your circumstances, including the effects of your condition and what is reasonable or justified for your employer. We can help you to understand whether you have a claim and what your options are.
If you think you have been discriminated against because of your disability, get in touch for advice.
GET IN TOUCH
Do you have a legal matter you'd like to discuss with us? Get in touch using the details below or use the form here and a member of our team will be in touch to discuss your enquiry.
Address: Spencer Shaw Solicitors Limited
St Mary's House, 68 Harborne Park Road,
Harborne, Birmingham, B17 0DH
Opening hours:
Monday - Friday 9:00AM - 5:00PM
Saturday, Sunday & Bank Holidays - Closed
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