The Basics of Disability Discrimination

What is a disability?

  • Employment law imposes a special test. If someone 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, they will be classified as disabled as are from the point of diagnosis, people with HIV, cancer or multiple sclerosis.
  • A mental illness need not be “clinically well recognised” for these purposes.
  • Disabled candidates for employment, employees and former employees are all protected against discrimination.

When and how does discrimination occur?

  • Direct discrimination is less favourable treatment because of someone’s disability. An example of this would be where a blind worker is not interviewed for an IT role because there is an assumption that a blind person could not work with computers.
  • Victimisation- treating an individual less favourably, because they made a complaint of disability discrimination or supported someone who did.
  • Disability related discrimination This is different from direct discrimination as it arises where the reason for the treatment relates to the disability but is NOT the disability itself. An example of this would be where someone was absent on long term sickness because of a back problem. The reason that their employer decided to dismiss them would be because of the sickness absence and not the disability itself.
  • Harassment is defined as unwanted conduct as a result of a person’s disability which has the purpose or effect of violating the disabled person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. This could include jokes being told in the office about disabled people even if not actually directed at a disabled individual.
  • Reasonable adjustments Possibly the most radical of discrimination provisions. There is a duty on an employer to make reasonable adjustments to avoid placing a disabled worker at a substantial disadvantage due to their working environment. The intention is to put disabled people on a level playing field. This could include adapting computer equipment to enable a blind person to carry out the work. If it was a very small employer with limited funds, such a step may go beyond what is reasonable. The controversial House of Lords decision of Archibald v Fife established that an adjustment could include creating a job for an employee.
  • When dealing with employees who are disabled or who may be judged to be disabled, employers would be sensible to
    • Consult with disabled employees about their special needs in the workplace
    • Obtain consent from the employee to obtain a medical report
    • Follow doctor’s recommendations
    • Seek independent medical or professional advice if doctor’s recommendations are unclear
    • Keep a well documented trail of why adjustments are not reasonable if it is not possible to make changes required.

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