Disability discrimination

The Equality Act 2010 says a person has a disability 'if they have a physical or mental impairment which has a long-term and substantial adverse effect on their ability to carry out normal day-to-day activities'.

To fall within this definition, your disability does not need a diagnosis. What matters is the effect of your impairment on your ability to do normal, day-to-day activities.

In terms of a tribunal claim, a 'long-term' effect means you have experienced it for 12 months at the time you received less favourable treatment, or you are likely to experience it for 12 months or for the rest of your life.

There is no statutory list of 'normal day-to-day activities'. In making a claim, you must show that your own normal day-to-day activities were adversely affected by the impairment.

'Normal day-to-day activities' may be those you carry out at work, or outside it. A work activity is considered 'normal' if it occurs in a range of work situations – for example, standing up for extended periods or talking on the 'phone. The test is whether an activity is normal for most people, not for you in particular.

For your employer to be liable for disability discrimination, they must have known – or ought to have known - about your disability. The Equality and Human Rights Commission code says employers must do everything they reasonably can to determine whether a worker has a disability, while respecting their dignity and privacy rights.

Your employer might have actual knowledge of your disability. Alternatively, and especially if your disability is not obvious, they might have 'constructive' knowledge of it. This is where your employer should have known about your disability because of warning signs such as you taking lots of sick leave.

Your employer may ask for help from a medical expert, but the final assessment of whether you may have a disability is theirs alone.

It is up to you whether to talk to your employer about your disability. You can choose at what stage you do this, to whom you talk about it, and how you go about it. It is a good idea to keep a written record.

It is important to cooperate with your employer's reasonable attempts to find out about a disability. If you do not, you risk losing your protection under the Act.

Proving you have a disability when your employer disputes it

If you are making a claim for disability discrimination, but your employer does not agree you have a disability, it is up to you to prove you do. You may be able to do this in a witness statement, but it may require evidence from a medical expert. This is often your GP, or it may be another specialist. Make sure you check their report and resolve any unclear points before you go to tribunal.

Tribunals expect claimants to co-operate, where possible, with any arrangements for organising expert medical evidence. Failing to do so could have severe consequences for the chances of your claim succeeding.

You will also be expected to disclose your confidential health records. If you are uncomfortable doing so, you may ask the employment judge to make an order restricting what information you must make available, and who receives it.

Proving you have a disability can be complex. The Act has no definitive list of conditions which are classed as disabilities. Though reps and members will ultimately need help from an NUJ officer and a union solicitor, there is plenty of guidance available in the early stages when considering a claim for disability discrimination.

A number of other unions have issued detailed guides to proving disability, for example UNISON's 'Proving disability and reasonable adjustments'.  The EHRC also has a wealth of guidance.

The EHRC gives many examples of impairments which can cause disability. They include:

  • Sensory impairments such as reduced sight or hearing.
  • Fluctuating or recurring conditions such as rheumatoid arthritis, myalgic encephalitis, chronic fatigue syndrome, fibromyalgia, depression and epilepsy.
  • Progressive conditions such as motor neurone disease.
  • Organ-specific conditions such as asthma or cardiovascular diseases.
  • Developmental conditions such as autistic spectrum disorders, dyslexia and dyspraxia.
  • Learning difficulties.
  • Mental health conditions and mental illnesses such as depression, schizophrenia, eating disorders, bipolar affective disorders, obsessive compulsive disorders, personality disorders and some self-harming disorders.
  • Conditions produced by a brain or body injury.

Some conditions are specifically excluded, including alcohol dependency and a tendency to commit arson or to steal. However, these conditions may still lead to a disability – for example, drinking more than the recommended limits for alcohol may cause liver disease.

Some conditions, on the other hand, are classed as disabilities as soon as they are diagnosed. These include cancer, HIV and multiple sclerosis. You are also protected if you are blind or partially-sighted, or severely disfigured by a scar, birthmark or limb deformation, for example.

Any assessment of whether you are disabled must not take account of any measures intended to reduce the adverse effects of an impairment – for example, medication. One exception to this is where sight conditions can be corrected by ordinary spectacles or contact lenses.

Progressive and recurring conditions

If you have a progressive condition, you are protected if there is evidence that it has some adverse effect on your ability to carry out normal, day-to-day activities, and that the effect is likely to be 'substantial' in future.

Your employer must not treat you less favourably because they wrongly assume that while your condition is mild, it is likely to deteriorate in future. This is classed as 'perceived progressive disability' (see next section).

You are also protected by the Equality Act 2010 if there is evidence that you have a recurring condition that will have the required 'substantial adverse effect' on your ability to carry out 'normal day-to-day activities'. For example, you may have asthma or arthritis, and have periods in which you experience substantial adverse effects. If your condition improves, but the adverse effects are expected to come back, it is likely to be classed as 'long-term'.

Perceived disability

You are protected under the Equality Act 2010 against your employer treating you less favourably because they mistakenly assume you are disabled. In other words, while you do not actually have a condition which qualifies as a disability under the Act, your employer assumes you do – and discriminates against you because of that.

For example, the support organisation, stammeringlaw, gives the case of a job applicant who mentions in their application form that they have a stammer . The employer reads the form, assumes that the applicant would not have the communication skills required, and decides not to invite them for interview.

The employer should have looked at the applicant's abilities, rather than acting on stereotypical assumptions about disability. If the applicant were to lodge a claim for discrimination, then even if the tribunal did not accept that their stammer amounted to a disability, the employer would probably still be liable for direct discrimination on the basis of perceived disability.

Your employer may also be guilty of perceived disability discrimination if they assume that your condition is progressive. Law at Work 2020 (p. 215) cites the case of a chief constable who turned down a transfer request by an officer with mild hearing loss. The chief constable assumed the officer's condition would deteriorate in future, and rejected internal advice to carry out a hearing test. The chief constable's behaviour was ruled to be unlawful perceived disability discrimination, based on a progressive condition.

Your employer may also be judged to have unlawfully harassed you while mistakenly believing you had a disability.