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Disability Discrimination at Work

Approximately one fifth of the working age population in Great Britain is disabled.     This represents 6.9 million workers with disabilities.     Workers with a disability enjoy the same general employment rights as other workers but may also be protected under the Disability Discrimination Act 1995 ("DDA").    

Who qualifies under the DDA?

The DDA defines a disabled person as someone who has :-

"....a physical or mental impairment which has a substantial and long term adverse effect on the person's ability to carry out normal day to day activities".    

This involves, therefore, a consideration of four questions :-

1.      Is there an impairment?

There is no definition of "physical impairment" but this can include weakening or defects in the body caused through illness, accident or which may have existed since birth e.g. blindness, deafness, diabetes, heart disease or limb paralysis.  Recognized mental illnesses may constitute a mental impairment as can learning disabilities in certain cases.  

2.      Does the impairment adversely affect the person's ability to carry out normal day to day activities?

Such activities are those that affect one of the following :-

  • mobility;
  • manual dexterity;
  • physical co-ordination;
  • continence;
  • ability to lift, carry or otherwise move everyday objects;
  • speech, hearing, or eyesight;
  • memory or ability to concentrate, learn or understand ;
  • perception of the risk of physical danger.

A worker's performance at work is not an example of day to day activities but evidence of the nature of a worker's duties at work and the way in which they are performed, particularly if they include day to day activities from the list above, can be relevant to the assessment.

3.      Is the adverse effect substantial?

Substantial means "more than minor or trivial" and not "very large".    

Measures taken to treat or correct a medical condition are discounted so that, for example, in cases such as insulin for diabetes or hearing aids for the hearing impaired the condition is considered as if the treatment had stopped leaving the question whether the person would then have an impairment with a relevant adverse effect.

4.      Is the substantial adverse effect also a long term effect?

An effect is long term if :-

  • it has lasted at least twelve months; or
  • the period for which it lasts is likely to be at least twelve months; or
  • it is likely to last for the rest of the life of the person affected.

Conditions which have been found to constitute a disability

  • ME/CFS
  • abdominal pain
  • bipolar affective disorder
  • bulimia nervosa
  • sciatica
  • emphysema
  • epilepsy
  • diabetes
  • asthma
  • degenerative disc disease
  • depression and anxiety neurosis
  • muscular dystrophy
  • visual impairment not correctable by glasses/contact lenses
  • paranoid schizophrenia
  • hearing impairment

How does the law protect a disabled worker?

It is unlawful to discriminate against a disabled person because of their disability :-

  • in the recruitment process
  • in their terms and conditions of employment
  • in considering them for promotion, transfer, training or other benefits
  • by dismissing them
  • by treating them less favourably than other workers
  • by subjecting them to harassment or victimization.

What forms of discrimination exist under the DDA?

Disability Discrimination is unlawful where there is :-

  • Less favourable treatment  on grounds of disability (direct discrimination) ;
  • Less favourable treatment  without justification for a reason relating to a person's disability
  • Failure to make reasonable adjustments where, for example, the physical layout of the work place substantially disadvantages a disabled person.
  • Harassment where there is unwanted conduct on the grounds of disability that violates a person's dignity or creates an intimidating, hostile, degrading, humilating or offensive environment.      The conduct will be regarded as harassment if, having regard to all the circumstances, including in particular the disabled person's perception, it should reasonably be considered as having that effect;  
  • Victimization  which occurs when a worker is subjected to less favourable treatment than others for having alleged discrimination, having brought proceedings against the employer, having given evidence or taken any other action under the DDA. 

What are reasonable adjustments?

Employers have a duty to make reasonable adjustments as soon as they become aware that a job applicant or member of staff is disabled within the meaning of the DDA.  Not asking whether something is needed is not a defence for not knowing and it is the duty of the employer to take reasonable steps to find out whether adjustments are needed.      

Examples of reasonable adjustments might include :-

  • altering the disabled person's working hours
  • allocating some of the disabled person's duties to another person
  • allowing a disabled person to be absent during working hours for rehabilitation, assessment or treatment
  • providing special equipment or modifying existing equipment to take account of the disability
  • providing additional supervision or support
  • making adjustments to premises.

Whether it is "reasonable" for an employer to make a particular adjustment will include an assessment of the following types of issue :-

  • how effective the adjustment might be in preventing the disadvantage
  • how practical the adjustment might be
  • the financial and other costs of the adjustment and the financial and other resources available to the employer
  • the size and type of business
  • the availability of financial or other help to make the adjustment e.g. grants may be available under the Access to Work scheme.

It is sensible for employers to keep a record of their consideration of reasonable adjustments to be able to respond to any allegation of discrimination under the DDA which might be made. 

Please contact us for further information.