Before the Disability Discrimination Act came into force in 1996, there was no specific protection from discrimination for disabled employees in the UK. The law on disability discrimination is now set out in the Equality Act 2010 (“the Act”) which provides for protection from discrimination in the workplace on the grounds of a number of protected characteristics including disability, race, sex, age, sexual orientation and religion or belief.
What is a disability?
Only those employees who have or have had a “disability” which falls within the legal definition set out in the Act are protected against discrimination.
A “disability” is defined in the Act as a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities.
“Substantial” means “more than minor or trivial” and “long-term” means that it has lasted or is likely to last at least 12 months (or for the rest of the employee’s life if this is likely to be less than 12 months).
“Normal day-to-day activities” are things which people do on a regular basis such as shopping, reading and writing, watching television, using the telephone, getting washed and dressed, carrying out household tasks and walking and travelling by various means of transport. They can also include activities which are “normal” in the workplace, such as participating in career-related assessments and exams.
There are certain conditions which are deemed to be disabilities without the need to satisfy the legal definition. These include blindness, sight impairment and partial sightedness (if certified by a consultant ophthalmologist), severe disfigurements (with the exception of tattoos and piercings), cancer, HIV infection and multiple sclerosis. This means that even where these conditions do not affect the carrying out of normal activities, they will nevertheless be regarded as disabilities from the point of diagnosis.
In addition there are certain conditions which are expressly excluded under the Act whether or not, on the face of it, they appear to fall within the legal definition of disability. These include alcohol or drug addiction, pyromania, kleptomania and hay fever.
Disability discrimination in employment
The law prohibiting disability discrimination in the workplace applies to all stages of the employment relationship including recruitment, terms and conditions of employment, promotions, transfers, training and dismissals – and there are a number of ways under the Act in which disability discrimination may occur.
These include where an employer or prospective employer has directly discriminated against an employee or job applicant by treating them less favourably because of their disability; has discriminated against them by treating them less favourably because of something arising in consequence of their disability (such as poor attendance) without objective justification; or has failed to comply with a duty to make reasonable adjustments where they are placed at a substantial disadvantage. (This may occur, for example, where appropriate arrangements are not made for a blind applicant to be able to complete a written test in a job interview).
Where a job applicant or employee has been discriminated against on grounds of their disability, they must bring their complaint to the employment tribunal within three months of the discriminatory act. If the employer is found liable, they may be awarded compensation without limit, which will be calculated according to the financial loss suffered as a result of the discrimination. Compensation may also cover non-financial losses, such as an award for injury to feelings. Where the discrimination has been particularly serious and has resulted in the loss of a job and also the loss of future earnings prospects, the sum awarded may be significant, sometimes amounting to hundreds of thousands of pounds.