The Equality Act 2010 provides protection for disabled job applicants and employees.
Not only is an employer liable for its own discriminatory acts but also for any discrimination carried out by its staff.
The definition of a disability is a broad one.
A person is defined as having a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day–to-day activities. There is no exhaustive list of conditions that amount to impairments and, although medical advice may be sought on the issue, ultimately it is the employer’s responsibility to make a judgement about whether a condition constitutes a disability. Often mental health conditions are more difficult to evaluate but depression, schizophrenia, bipolar disorder, obsessive compulsive disorders, depression and personality disorders constitute disabilities. Anxiety and stress may constitute disabilities if they have a substantial and long term effect. In considering whether the condition is “substantial and adverse” the focus will be on what the worker cannot do rather than what they can do. Moreover, day-to-day activities are broader than work-related activities and include domestic tasks. The condition must be long term, meaning that it has lasted, or is likely to last, for 12 months or more. This means that individuals who were disabled in the past but are no longer disabled will be protected if the condition lasted at least 12 months or recurred during a period of 12 months.
There are a number of offences under the Equality Act:
The duty to make reasonable adjustments applies if:
An employer cannot justify a failure to comply with the duty to make reasonable adjustments and the only defence, where is it alleged that the employer has breached the duty, is that it was not reasonable to comply with the duty. The duty to make adjustments only arises if an employer knows or could reasonably be expected to know that a person is disabled and that the employer knows or could reasonably expected to know that the effect of this is that the person is likely to be placed at a substantial disadvantage. An employer cannot claim that it did not know about a job applicant or worker’s disability if anyone in the employer’s organisation had knowledge. If there is any uncertainty about whether a worker is suffering from any condition that might constitute a disability, it will be sensible to obtain medical advice as soon as possible to ensure compliance with the duty to make reasonable adjustments.
Victimisation occurs when a worker is subjected to less favourable treatment than others whose circumstances are the same as theirs because they have done one or more of the following protected acts:
Harassment occurs where an employer, for a reason which relates to a disability, subjects a person to unwanted conduct which has the purpose of or effect of:
Discrimination that occurs due to an association with a disabled person or a perception by the employer or another worker of an individual’s disability, whether the perception is correct or not, is also unlawful.
Although the Equality Act is the source of the protection available to disabled workers, there are other legal requirements which may be relevant:
Health and safety legislation
Employers have a general duty to protect the health and safety of their workers and others affected by their activities under the Health and Safety at Work Act and other regulations as well as a general duty of care. Breaches of health and safety duties may bring criminal prosecutions in respect of statutory offences as well as claims for damages. Negligent breaches of health and safety will give rise to civil liability if physical or mental injury arises.
Other legal protection for employees
There are also a number of other possible related claims based on the employment relationship including: