In this blog we are looking specifically at the protected characteristic of disability under the Equality Act 2010.

Let’s explore:

Disability is one of the 9 protected characteristics that are included in the Equality Act 2010. In the Act, disability is defined as a ‘physical or mental impairment that has a substantial and adverse long-term effect on your day-to-day activities’. The disability must be more than minor however doesn’t always need to be present and is or likely to last more than 12 months. This only needs to be a ‘significant influence’ of the treatment you have received and doesn’t need to be the only cause.

Certain ‘disabilities’ are automatically protected in the act from diagnosis such as:

• Multiple sclerosis
• Visual impairment
• Cancer

However, issues relating to addiction such as alcoholism would not be protected. You would need to look to your welfare provisions.

Disability discrimination can occur in 6 ways-

• Direct Discrimination

This occurs when someone is treated less favourably due to their disability than someone reasonably like them but without a disability (comparator). This can take place at any point. You can discriminated against someone for their perceived disability or by a disability they are associated with. For example if they are caring for someone with a disability.

• Indirect Discrimination

This is when a policy or rule has a negative effect on a disability. This is a policy that applies to all and usually means no harm but still disadvantages a disability. For this to not be discrimination, the policy in place must be justified. This means that whoever put the policy in place must show there is good reason for it.

It is good practice for there to be oversight of policy preparation and implementation within the institution. This can help to ensure policies do not contradict one another or inadvertently discriminate.

• Failure to make reasonable adjustments

For some disabilities adjustments may be required to make activities more accessible, and people have a duty to provide these such as employers and higher education providers. Putting these in place means it would be easier for you to complete your job. Some adjustments could be:

• Physical aids= wheelchair ramps
• Specialist equipment= braille
• Provision, criterion and practice= adjusting the rules of your employment or course

When looking at adjustments required, the organisation, charity or education providers resources will be considered to make sure its reasonable and affordable for them before deciding whether it would be discrimination. For example, a charity may not have the funding or space to fit in a wheelchair ramp outside. Failure to take adjustments occurred in Abrothnot v Bristol University. The court found the university had failed to make reasonable adjustments to her course completion requirements when they were aware of a students disability

• Discrimination arising from a disability

This is when discrimination occurs because of something linked to the person’s disability. This could be they have missed out on a promotion or another opportunity due to no other possible reason than they need to leave work or university often for doctors appointments. The organisation should show objective justification (good reason) for the negative treatment. An example of this could be if the aim is to protect the health and safety of others or the requirements of the business.

• Harassment

Harassment is when someone is made to feel embarrassed, humiliated or intimidated by another. This can be claimed against an organisation unless it can be proved that it did everything in it’s power to discourage the behaviour. If this is the case, a claim against the harasser cold still be made. A person can also make a claim under disability discrimination even if they aren’t disabled but have witnessed it happening to someone else.

This applies to third parties, for example, an organisation can be liable for harassment of employees by a client. The employer would only be liable if they were aware of the harassment on more than 2 occasions and fail to do anything about the issue.

This may have interesting connotations if a lecturer, for example, was being harassed by. a student for decisions they may have made about grades.

• Victimisation

Finally, a person can be discriminated against because of making a complaint against someone for disability discrimination. This could apply if a person supporting someone who has made a complaint or are providing evidence for a complaint. To make a claim of victimisation a person does not need to compare themselves with a comparator.

This can be lawful if someone is treating a disabled person more favourable than a non-disabled person or if you treat a non-disabled person more favourably than someone else with a disability.

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