Disability Discrimination

Disabled workers enjoy the same anti-discrimination protection as other workers, but they have additional rights under the Disability Discrimination Act (DDA).

All aspects of employment are covered by the DDA including:

• Application forms
• Interview arrangements
• Proficiency tests
• Job offers
• Terms of employment
• Promotion, transfer or training opportunities
• Work-related benefits such as access to recreation or refreshment facilities

What is a disability?

The definition of a disability for the purposes of the DDA is a legal and not a medical definition. This means that sometimes a medical condition may be regarded as a disability by a doctor, but will not be a disability under the DDA.

To be able to enjoy the rights under the DDA you must show that you have a physical or mental impairment which has a long term and substantial adverse effect on your ability to do your day-to-day activities.

Examples of impairments

The DDA provides a non-exhaustive list of conditions that are regarded as impairments, which include:

• Sensory impairments – such as total or partial loss of sight or hearing
• Fluctuating or recurring conditions such as rheumatoid arthritis, ME, depression and epilepsy
• Progressive conditions such as lupus, dementia and muscular dystrophy
• Organ specific impairments such as asthma, heart disease, strokes and thrombosis
• Developmental conditions such as autism and dyslexia
• Impairments caused by injury to the body or brain
• Mental health conditions or illnesses such as schizophrenia, eating disorders, depression and self harming
• Conditions related to learning difficulties

An impairment, which may result in a worker being protected under the DDA, can result from the cause or effect of another illness. It also may result from conditions which cannot be described as an illness, such as disfigurement or genetic deformity.

Some physical conditions can result from an underlying mental condition, or can cause a mental condition, such as depression.

The DDA recognizes some conditions as disabilities without you having to show that it has had an adverse effect on your daily activities. These are: blindness, partial sightedness, severe disfigurement, cancer, HIV and multiple sclerosis. A person suffering from cancer, HIV or multiple sclerosis will be deemed to be disabled from the date that they were diagnosed. A person who is blind or partial sighted will be deemed disabled upon being certified by a consultant ophthalmologist, or upon registration with the local authority. A person with a severe disfigurement will automatically qualify as having a disability from the date that they become disfigured.

The effect of the condition

Unless the condition is deemed to be a disability (as mentioned above), you must prove that it has a 'substantial adverse effect' on your day to day activities. This will usually be determined by the facts surrounding your particular circumstances. However, note that:

• A progressive condition must have some adverse effect now, and be likely in the future to have a substantial effect
• If a condition has periods of remission then you must prove that it is likely to recur. 'Likely' means 'could well happen' in this context.

The meaning of 'long term'

The impairment must have a long term effect on you as of the date of any alleged act of discrimination. 'Long term' includes impairments that:

• Have lasted at least 12 months
• Are likely (i.e. more probable than not) to last for at least 12 months
• Are likely (i.e. more probable than not) to last for the rest of a worker's life
• Are likely (i.e. could well happen) to recur if in remission

Day-to-day activities

This can include activities relating to your:

• Mobility
• Co-ordination
• Continence
• Ability to carry out physical tasks such as lifting, or using your hands
• Speech, hearing or eyesight
• Memory, concentration and mental ability
• Ability to recognise physical dangers

Types of claims

Direct disability discrimination

This means that, because you are disabled, you are treated less favourably than another worker who is not disabled but has the same (or at least not materially different) abilities as you. For example, a job advert might state that disabled applicants will not be considered. This might give a disabled applicant, who is otherwise qualified and able to do the job, a claim for direct disability discrimination.

Your employer could be held liable for direct disability discrimination even if they did not intend to discriminate against you or (in some cases) was unaware of the disability.

However, the law also extends to protecting you from direct disability discrimination if your employer treats you less favourably, based on:

• Your association with disabled people. For example, if you are being discriminated against because you have to care for a disabled family member, even though you are not disabled yourself
• Your refusal to comply with instructions that would require you to treat someone less favourably because of their disability. For example, if a managing director exerts pressure on a line manager to dismiss a worker because of their disability. The pressure on the line manager will amount to unlawful conduct

Your employer cannot defend a claim of direct disability discrimination by 'justifying' it (arguing that their actions were a proportionate means of achieving a legitimate aim).

Disability-related discrimination

Disability-related discrimination occurs when you are treated less favourably for a reason which relates to your disability. The reason does not have to be the disability itself and can include something related to it, such as an aid or device (e.g. the use of a wheelchair) or the amount of sick leave taken in a year.

Previously, this would mean comparing the treatment of a disabled worker with how a person without the disability would be treated. For example, a disabled worker who is dismissed because they are regularly absent from work due to illness would be compared to a non-disabled worker who was not absent from work. They will be able to claim disability-related discrimination because they're being discriminated against for a reason (the absence from work) which relates to their disability.

This has now been changed by a House of Lords decision, and the treatment must now be compared to the treatment of a person without the disability, but to whom the reason for the treatment did apply. Therefore, in the above example, the disabled worker will be compared to a non-disabled worker who was also absent from work for a similar period of time. It would be disability-related discrimination only if the employer would not have dismissed the non-disabled worker for being absent from work for so long.

The House of Lord's decision makes it much harder for a disabled worker to prove that they have been subjected to disability-related discrimination.

As your disability must be part of the reason why your employer treated you less favourably, your employer may not be liable if they were unaware of your disability and there were no factors that should have alerted it to the possibility that you are disabled.

Note that an employer may not be able to rely on this in all circumstances where it did not have knowledge of the disability. An employer may be found liable (subject to being able to justify the treatment of a disabled employee) if the treatment received and the actual disability are related. For example, if you are dismissed due to long periods of absence from work despite requests to your employer not to make a decision until you have the results of an impending medical examination and the medical results then show that you are suffering a disability. Your employer may still be liable for discriminating against you even though, unbeknown to it, the absences were because of your disability.

An employer will not be held liable if they can justify the less favourable treatment of the disabled employee. The reason for the treatment must, however, be shown to be both material and substantial. An employer would, for example, be able to justify removing a diabetic worker from driving duties for the material and substantial reason that they would pose a risk to themselves and other road users.

Failure to make reasonable adjustments

Under the DDA, your employer has a duty to make 'reasonable adjustments' to ensure that workplace provisions, criteria, practices or any physical features of the workplace do not put you at a substantial disadvantage compared to non-disabled workers. Examples of the sort of adjustments your employer should consider, in consultation with you, are set out in the DDA and include:

• Allocating some of your work to someone else
• Transferring you to another post or another place of work
• Swapping roles with another worker
• Retiring you on medical grounds and then re-employing you in another role
• Making adjustments to the buildings where you work
• Being flexible about your hours – allowing you to have different core working hours and to be away from the office for assessment, treatment or rehabilitation
• Providing training
• Providing modified equipment
• Making instructions and manuals more accessible
• Providing a reader or interpreter

Your employer's duty to make reasonable adjustments will only arise if it knows or could reasonably be expected to know that a person (including a job applicant) is disabled and that they are suffering or are likely to suffer a substantial disadvantage because of a workplace provision, criteria or practice or any physical features of the workplace.

What are reasonable adjustments?

You can play an active role in discussing these arrangements with your employer. You might also want to encourage your employer to speak to someone with expertise in providing work-related help for disabled people.

Issues to consider when deciding whether an adjustment is reasonable or not include:

• How effective will an adjustment be?
• Will it mean that your disability is slightly less of a disadvantage or will it significantly reduce the disadvantage?
• Is it practical?
• Will it cause much disruption?
• Will it help other people in the workplace?
• Is the cost prohibitive?

You may want to make sure that your employer is aware of the Access to Work programme run by Jobcentre. Through this programme, employers can get advice on appropriate adjustments and possibly some financial help towards the cost of the adjustments.

Harassment

Under the DDA, harassment includes unwanted conduct by another employee or your employer relating to a person's disability which has the purpose or effect of violating that person's dignity or creating a hostile, degrading, intimidating, humiliating or offensive environment. This means that if you are subjected to behaviour which you find offensive or degrading and such behaviour is directed at your disability, this will be unlawful harassment. Such behaviour will even be unlawful harassment where there was no intention to harass you.

There is no justification for harassment. Your employer will be liable for any disability-related harassment you suffer in the course of your employment, if it has failed to take reasonable steps to prevent it. 'In the course of employment' includes 'done while at work' and 'done while in a workplace-related environment'.

Note that you will not be protected by the DDA if you are over sensitive and unreasonably take offence to an innocent comment.

Victimisation

Victimisation, for purposes of the DDA, happens when you are being treated less favourably than other employees because:

• You have asserted your rights not to be discriminated against on the basis of your disability by making a complaint about disability discrimination
• You have given evidence or information in a complaint of disability discrimination
• You take any other action under the DDA
• You have alleged that your employer or another worker has contravened disability discrimination legislation
• Your employer knows or suspects that you intend to do any of these things.

What to do if you're discriminated against

If you think that you're suffering disability discrimination at work, you should talk to your employer and explain why you feel you are being discriminated against. If necessary, put your complaint in writing. An employee representative (such as a trade union official) may be able to help you.

If this doesn't help, you may need to make a complaint using your employer's grievance procedure. If your employer doesn't have a grievance procedure, you should set out your complaint in a letter and hand it to your line manager. If your line manager is the problem, then hand your letter to your line manager's supervisor. Your employer should then arrange a grievance meeting with you. If the outcome of the meeting is unsatisfactory, you have the right to appeal to a manager who was not previously involved in your grievance. For more information, see our article on Grievance procedures in Northern Ireland.

If you are unhappy with the outcome of your appeal, you may be able to take your claim to an Industrial Tribunal. You should, however, take legal advice prior to proceeding. You'll need to do this within three months of the act of discrimination taking place. If the discrimination extends over a period, you must bring your claim within 3 months from the end of that period.

Northern Ireland Human Rights Commission

The Equality Commission for Northern Ireland is the body responsible for promoting equality in Northern Ireland, including equality in the workplace. They can assist with advice regarding discrimination and equal opportunities. They can take legal action on behalf of your employee. They promote equality and fair treatment of employees, customers and the users of services.