Jill Gracey, Solicitor in the Employment & Incentives team, considers the definition of a disability, when disability discrimination may arise and the relevant anti-discrimination legislation.

Jill refers to other strands of protections afforded to individuals who are disabled within the meaning of the Disability Discrimination Act 1995, for example, associative discrimination, and reminds employers to assess whether any reasonable adjustments need to be made to compensate for any detriment a disabled employee may suffer from as a result of their disability. 

Transcript

Disability Discrimination in the Workplace

Disability is one of the protected characteristics under anti-discrimination legislation. Employers must keep in mind that anti-discrimination legislation does not merely begin when an employee starts employment and end when the employment terminates, but recruitment and selection procedures must not fall foul of the anti-discrimination legislation, as job applicants will be protected from suffering less favourable treatment as a result of their disability. Similarly, actions taken post- Disability Discrimination Act 1995 or any other termination could be deemed to amount to discrimination where an individual has suffered less favourable treatment as a result of their disability. An example of this would be the content of a job reference.

Legal Definition of a Disability

In order for an individual to avail of the protections afforded under the Disability Discrimination Act, or the DDA as we sometimes refer to it as, their medical condition must fall within the legal definition of a disability. That legal definition is someone who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. If an individual meets this definition, they will be protected from suffering less favourable treatment as a result of their disability. Similarly, they will be protected from being harassed in relation to their disability.

A disabled individual will also be protected from being victimised on the grounds of disability. And victimisation in this context means an individual who has made a complaint of disability discrimination or has helped someone else with a complaint under disability discrimination law and suffered as a result of assisting that employee.

There are other strands of the protections afforded to individuals who are disabled within the meaning of the DDA. For example, associative discrimination. Associative discrimination can occur when someone is treated less favourably on the basis of another person's disability or other protected characteristic. For example, an individual who's not disabled but who has a disabled child, that parent will be afforded protection under the DDA in relation to unfavourable treatment from their employer which is connected to the fact that the parent has a disabled child.

Making Reasonable Adjustments

Employers must also be live to their duty to make reasonable adjustments, which means that the employer may need to take steps to adapt certain things to prevent their practices or their premises from discriminating against individuals who suffer from a disability. And the purpose of this duty is to ensure that disabled employees or job applicants have fair access, and to compensate for any disadvantages which they may suffer as a result of their disability. Some examples of reasonable adjustments would include making adjustments to physical premises, for example, wheelchair access, modifying equipment, reallocating duties, altering working hours, or not including absences which are connected to a disability when considering trigger points within sickness absence procedures.

What should employers do?

So, to recap, employers should be mindful of individuals who may fall within the protection of the Disability Discrimination Act. For individuals whose medical condition meets the definition of a disability under the DDA, employers should assess whether any reasonable adjustments should be made to afford that individual fair access, and to compensate for any detriment which they may otherwise suffer as a result of their disability. Finally, employers should be mindful that having a disability is a protected characteristic under anti-discrimination legislation, and individuals must not suffer less favourable treatment as a result of them having a disability.