Legal Ease – Types of disability discrimination

Legal Ease – Types of disability discrimination

This resource is part of our Disability Essentials range. You can find the other free resources that are included in this range by clicking here.

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This resource explains the different types of disability discrimination under the UK’s Equality Act 2010.

Direct discrimination

Under the Equality Act 2010 it is unlawful for an employer, service provider or provider of public functions to treat a disabled job applicant, employee, customer or service user less favourably simply because of their disability or their association with a disabled person. This means the disabled person must not be treated worse than someone without that disability when all the surrounding circumstances including the abilities of the disabled person, are the same.

This type of discrimination is known as direct discrimination. It is unlawful and cannot be justified.

Example

Claudia, who has a disabled child, has applied for a full-time role within her organisation. Her boss refuses to consider her application because she thinks that Claudia should be spending more time at home caring for her child. Other parents within the organisation do work full-time but their children are not disabled. This is likely to be direct discrimination because of Claudia’s association with a disabled person (her daughter).

Discrimination arising out of disability

It is also unlawful for an employer, service provider or provider of public functions to treat a disabled person unfavourably for a reason arising out of their disability – unless the treatment can be justified.

A reason arising out of disability could be the ability to work certain hours, disability-related sickness absence, appearance or behaviour.

Discrimination arising from disability which occurs when:

a) An employer, service provider or provider of public functions knows or could reasonably be expected to know that the person is disabled, and;

b) The disabled person experiences unfavourable treatment which arises as a consequence of their disability.

There is no requirement for a comparator – the disabled person does not have to show that they have been treated or would have been treated less favourably than someone else.

Example

Peter has severe asthma which has caused him to have several periods of time off sick. Last year he also caught chicken pox and had a further week off work.

Peter’s employer has a policy that says that bonuses will only be paid to employees who have fewer than 6 days off sick in the last twelve months.

Peter is arguing that this is discrimination arising out of his disability. If he had not been disabled with asthma, he would not have needed to take so much time off sick. He would only have had five days off for chicken pox. If he had only taken five days off in the last twelve months, he would have been eligible for a bonus. This means that he has been treated unfavourably because of his disability.

For more on managing attendance see our People Manager Toolkit.

Justification for unfavourable treatment arising out of disability

Unfavourable treatment can be justified if it can be shown to be a proportionate means of achieving a legitimate aim. This means first identifying the legitimate aim, for example, providing a consistent and professional service to customers.

Once the legitimate aim has been identified you must consider if your treatment of the disabled person in question is a proportionate means of achieving that legitimate aim.

Decisions must be made after proper investigation of the circumstances and not be based on assumptions. For example, what was the impact on other employees and customers of the absence levels?

If reasonable adjustments would make the unfavourable treatment unnecessary, then they should be made. The treatment is unlikely to be justified if reasonable adjustments have not been made. Read more about reasonable adjustments and if it would be reasonable to discount Peter’s disability related absences in our People Manager Toolkit.

Example – Peter

In the case above of Peter a legitimate aim might be ensuring that there are enough people available to meet the needs of customers and fulfil contracts. However, is refusing to give bonuses to employees who have more than six days off sick in a twelve-month period a proportionate means of achieving that legitimate aim?

Should a reasonable adjustment have been made to the policy for Peter because of his disability to make this a more proportionate means of achieving the legitimate aim of providing excellent customer service?

Indirect discrimination

Indirect discrimination occurs when a neutral provision, criterion or practice that applies to everyone places a group who share a characteristic (for example, a disability or a type of disability) at a particular disadvantage.

Indirect discrimination may be justified if it can be shown that the provision, criterion, or practice is a proportionate means of achieving a legitimate aim.

Example

A bank asks for a driving licence as photographic identification before allowing customers to open a certain type of account to prevent fraud. This is a rule that applies to everyone, but it places some disabled people who cannot drive because of their disability (for example, sight loss) at a disadvantage because they do not have a driving licence.

This is indirect discrimination. Preventing fraud is a legitimate aim but accepting only driving licences as proof of identity is unlikely to be a proportionate means of achieving that aim. The bank could accept other forms of photographic identification such as passports or bus passes from people who do not have driving licences.

Harassment

It is unlawful for an employer to harass or permit the harassment of a disabled person because of their disability. Harassment occurs when an intimidating, hostile, degrading, humiliating, or offensive environment is created by the perpetrator or where their behaviour violates the dignity of the disabled person.

Victimisation

It is unlawful to treat anyone (disabled or non-disabled) unfavourably because they supported a claim for discrimination made by a disabled person. An example of this could be dismissing an employee who gave evidence of disability-related harassment of a disabled person at grievance proceedings brought by a disabled colleague.

Failure to make reasonable adjustments

An employer, service provider or provider of public functions has a duty under the Equality Act 2010 to make reasonable adjustments to prevent a disabled person from being placed at a substantial disadvantage compared to people without a disability by:

• Any provision, criterion, or practice (PCP) or
• Physical feature of premises, or
• Lack of an auxiliary aid.

Where a physical feature of premises places a disabled person at a substantial disadvantage, reasonable steps must be taken to

• Remove the feature.
• Alter the feature.
• Provide a reasonable means of avoiding the feature.

The Equality Act 2010 also specifically states that where a provision, criteria or practice or lack of an auxiliary aid relates to the provision of information, that information must be provided in an accessible format. The cost of a reasonable adjustment cannot be passed onto the disabled person.

Example – Peter

Peter’s employer’s policy of not awarding bonuses to any employee who has more than six days off sick in a twelve-month period is a provision, criterion, or policy (PCP). His employer must, therefore, consider if a reasonable adjustment should be made to that PCP to ensure that Peter is not substantially disadvantaged by it.