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Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Disability - overview
Disability is a mental or physical impairment with a substantial and long-term adverse effect on day-to-day activities. Substantial means more than minor or trivial. Long-term means lasting or likely to last at least 12 months (or until death). Disability discrimination is awkward because it does not work in quite the same way as the other types of discrimination. In particular, there is no prohibition on positive discrimination.
For further information, see Definition of disability.
To help make sense of the statute, the Government has produced guidance on matters to be taken into account in determining questions relating to the definition of disability.
There is also a Code of Practice (admissible evidence but not an authority) by the Disability Rights Commission (whose functions were taken over by the Equality and Human Rights Commission on 1 October 2007).
There are five types of disability discrimination in employment:
less favourable treatment on the grounds of disability: see Less favourable treatment on grounds of disability
less favourable treatment for a reason related to disability (unless justified): see Less favourable treatment for a reason related to disability
failure to make reasonable adjustments for the disabled person: see Duty to make reasonable adjustments
harassment: see Disability harassment
victimisation: see Disability victimisation
For further information, see Types of disability discrimination - overview.
Associative discrimination (a shorthand term used to describe direct discrimination and/or harassment that is suffered by a person because of another's protected characteristics) is unlawful in relation to less favourable treatment for a reason related to disability and harassment.
For further information, see Associative discrimination: on grounds of a third party's characteristics.
Medical evidence plays an important role in disability discrimination. However, the responsibility for deciding whether or not an individual is disabled rests with the tribunal. In particular, it is for the tribunal to decide whether the adverse effect of an impairment is substantial and whether an activity is a day-to-day activity.
For further information, see Evidence in disability claims.
Disability discrimination in the workplace can be by:
employers (including prospective and former employers)
end-users of agency workers
recipients of personal services from independent contractors
anyone knowingly helping discrimination
anyone instructing or putting pressure on another to discriminate
Less favourable treatment on the grounds of disability or for a disability-related reason can occur in:
the terms of a job advert
a failure to recruit or an offer of employment
opportunities (or the lack of them) for training, transfer, promotion or other benefits
dismissal, harassment, victimisation or any other detriment
For further information, see Events which give rise to a disability claim.
Employers have a duty to make reasonable adjustments to remove or mitigate any arrangements putting the disabled person at a substantial disadvantage. The defence of justification is not available. Where adjustment to premises is required, landlord's consent must not be unreasonably withheld or subject to unreasonable conditions. Reasonableness takes account of what the adjustment would achieve, practicability, financial and other implications and the employer's resources.
The only remedy is to bring a tribunal claim within three months of the discriminatory act (or of when it ends, if a continuing act). The period for bringing a claim can be extended by the tribunal on just and equitable grounds.
For further information, see Discrimination remedies overview and Discrimination time limits.
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