Discrimination arising from disability is when an employer treats a worker unfavourably because of something connected to the worker’s disability. Discrimination arising from disability is type of discrimination claim only open to disabled people, as set out in section 15 of the Equality Act 2010.
Please see below an overview of what discrimination arising from disability means and some tips on how to manage this situation.
What Is Discrimination Arising From Disability?
The key elements to establish for there to be discrimination arising from disability are:
- There is unfavourable treatment.
- The unfavourable treatment is because of something arising as a consequence of the disabled person’s disability.
- The employer cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.
The Tribunal will often ask itself two questions when determining a claim for discrimination arising from disability:
- Did the claimant’s disability cause, have the consequence of, or result in, “something”?
- Did the employer treat the claimant unfavourably because of that “something”?
Therefore, the unfavourable treatment must be because of that “something” identified, that arises in consequence of the disability. The consequences of a disability include anything which is the result, effect or outcome of a disabled person’s disability. This can include a variety of different consequences and there is no exhaustive list. They will depend on the different types of disabilities and some will be less obvious than others. Examples include:
- Taking time off for treatment
- Using equipment
- Taking medication.
- Difficulties with memory or concentration.
- Speech and language difficulties.
- Behavioural issues
What Does “Unfavourable Treatment” Mean?
For discrimination arising from disability to occur, a disabled person must have been treated ‘unfavourably’. This means that he or she must have been put at a disadvantage. This could be in the form of a dismissal, harassment in the workplace or a denial of promotion.
It is enough if the worker can reasonably say that they would have preferred not to be treated differently. However, treating people differently does not mean there was unfavourable treatment.
Example: You’re given a new shift pattern at work which includes early morning shifts. You have leukaemia. You’re therefore unable to work in the early morning as you have treatment once a week at a set time. This would be unfavourable treatment because of something connected to your disability. Here it’s the need to have treatment in the morning.
Can Discrimination Arising From Disability Be Justified?
Yes, however, the employer has to show that the treatment is a ‘proportionate means of achieving a legitimate aim’. This has to be objectively justified by the employer. They must produce evidence to support their statement and that the discrimination is justified. An employer cannot rely on mere generalisations.
Is Discrimination Arising From Disability Different to Direct Discrimination?
Yes, direct discrimination occurs when the employer treats a person less favourably because of their disability. This is different to discrimination arising from disability, which is unfavourable treatment because of something arising as a consequence of an employee’s disability. As seen below, unlike with direct discrimination, no comparator is required.
Example: An employee is off sick for a period of time. The absence was caused by their disability. The employer is aware that this employee has a disability. The employer dismisses the employee because of the time off as sick leave. This is discrimination arising from disability, as the discrimination occurred as a consequence of the employee’s disability (and not because of the disability itself).
Is It Different To Indirect Discrimination?
Yes, indirect discrimination occurs when a disabled person is (or would be) disadvantaged by an unjustifiable (PCP) provision, criterion or practice applied to everyone, which puts (or would put) people sharing the disabled person’s disability at a particular disadvantage compared to others, and puts (or would put) the disabled person at that disadvantage.
Indirect discrimination will not be discrimination if the employer can show that the treatment can be objectively justified as a proportionate means of achieving a legitimate aim. Unlike indirect discrimination, discrimination arising from disability occurs when there is unfavourable treatment because of something connected with the relevant disability.
What If The Employer Does Not Know About The Disability?
For this type of discrimination to occur, the employer must know or ought to know about the disability. It is not enough for the employer to show that they did not know that the disabled person had a disability, they must also show that they could not reasonably have been expected to know about it. This is also the case if an employer’s agent or employee (such as an occupational health adviser or a HR officer) knows, in that capacity, of an employee’s or an applicant’s disability.
An employer, therefore, must do all that they can reasonably be expected to do to find out if a worker has a disability such as making enquiries about the disability. Employers need to ensure that there is a way that a disabled person can disclose the information suitably and sometimes confidentially if appropriate.
If the employer does not, or could not reasonably have been expected to know about the employee’s disability then this type of discrimination will not have occurred.
An employer could avoid discriminating against employees if they can provide the employee with reasonable adjustments. If they fail to do so, it will be hard to show that the discrimination was objectively justified.
Is A Comparator Required?
No, for discrimination arising from disability to occur there is no need to compare a disabled person’s treatment with that of another person. A demonstration that the unfavourable treatment is because of something arising as a consequence of the disability is sufficient.
If you think you have been subjected to discrimination arising from disability you must act quickly. There are strict time limits to take action and if you wait too long, it could be too late.
With discrimination claims, the time limit is 3 months less 1 calendar day from the discriminatory act complained of. Within this time frame, you must commence Early Acas Conciliation.
There are ways to argue that disability discrimination was a “continuing act,” meaning you can claim for earlier incidents of discrimination. Further, a Tribunal does have discretion to “extend time,” meaning it can make an exception and permit claims brought outside of the time limit to continue. However, these points can be complicated and you should proceed with caution, which is why professional advice on these points is recommended.
You can see more information on Employment Law Time Limits here.
If you are concerned about discrimination arising from disability:
- Make sure your employer actually knows about your disability and keep evidence.
- Act quickly, and heed the warning above about short time limits.
- You will need to identify the “something,” which is the thing connected to your disability that is causing the issue, so be clear on what that is.
- If you are being treated unfavourably, make sure you can explain the treatment with evidence and be specific (what happened, on what date, who was responsible, what evidence do you have).
- Decide what you want to achieve and act accordingly. For example, if you want to stay employed, consider how best to achieve that internally. If the discrimination is such that you would prefer to leave, then stay employed, but take advice as quickly as possible so you can understand how to exit on the best terms possible.