Every workplace should strive to be inclusive and fair. However, despite advances in equality, some prejudices still exist and many people find themselves discriminated against in the workplace every year.
The Equality Act 2010 (EqA) is the UK’s primary legal framework for protecting individual rights and furthering equality, diversity and inclusion. It protects people against discrimination, harassment and victimisation at work, with disabilities as one of the nine ‘protected characteristics’ covered by the Act.
In November 2021, government statistics indicated that one in five people in the UK reports having a disability. It is, therefore, essential that employers understand and recognise the different types of disabilities, fulfil their legal duties and take a proactive approach to prevent discrimination or less favourable treatment of people with disabilities because of their condition. In this feature, we look at what is disability discrimination, who is protected in the workplace and what counts as a ‘disability’ under the discrimination legislation, including practical examples. In Part two, we will focus on the different types of disability discrimination and will consider examples of disability discrimination in the workplace. You can find this article here.
What is Disability Discrimination?
Disability discrimination in the workplace occurs when a disabled employee is treated unfairly or is subject to a disadvantage due to, or as a result of, a disability. This discrimination does not need to be intentional.
The treatment could be a one-off action, a regular pattern, the application of a rule or policy or the existence of physical or communication barriers which make accessing something difficult or impossible for a person with a disability. It can occur in the workplace, work socials or when people are working remotely.
Discrimination issues often arise as a result of flawed or inconsistent company policies, procedures and practices that have failed to accommodate people’s physical or mental impairments required by law.
Who is Protected by the Law?
At work, the law protects the following people against discrimination:
- employees and workers
- hired contractors and self-employed workers
- job applicants
- trainees
- office holders including company directors and managers
Protection extends to all areas of employment, including recruitment, promotion, the provision of training and benefits, redundancy and dismissals, retirement and occupational pensions.
What Does the Equality Act Say About Disability Discrimination?
The Act states that it is unlawful to discriminate against someone for any of the following reasons:
- they have a disability (defined below)
- they are perceived to have a disability even if that perception is incorrect
- they are connected with someone who has a disability, for example, a close family member or friend
- they have another connection with a disability, for example, they volunteer for a disability charity
- they have had a disability in the past
What is Classed as a Disability?
Under S.6(1) of the EqA, a disability is defined as a physical or mental impairment which has a substantial and long-term impact on the ability to carry out normal day-to-day activities.
The EqA and the Equality Act 2010 (Disability) Regulations 2010 provide that some conditions such as cancer, HIV infection (even without symptoms), multiple sclerosis, visual impairments, including blindness, and severe disfigurement are automatically treated as a disability from the moment of diagnosis, regardless of the S.6(1) EqA test set out above.
Similarly, various anti-social personality disorders (such as a tendency to set fire to things, physical or sexual abuse, to exhibitionism), hayfever, tattoos and body piercings are expressly deemed not to meet the requirements of a ‘disability.’ Addictions to alcohol, nicotine or other substances are also not covered unless the addiction was originally the result of medical treatment or medically prescribed drugs, for example, Valium or other sleeping drugs.
Physical or Mental Impairment
An individual has an ‘impairment’ if their physical or mental abilities are reduced in some way compared to others.
Examples of physical and mental impairments (non-exhaustive) include; asthma, diabetes and mobility issues as well as depression, severe anxiety, schizophrenia and bipolar affective disorder. Neurodiversity including attention deficit hyperactivity disorder (ADHD), autism, dyslexia and dyspraxia may also amount to a disability under the EqA, even if the person in question does not consider themselves to be disabled.
Importantly, an impairment doesn’t necessarily have to be a specifically diagnosed medical condition to bring a claim.
Effect on Normal Day-to-Day Activities
Normal activities mean activities carried out by most people fairly regularly, for example, shopping, reading, writing, watching TV, being able to concentrate or understand, getting washed and dressed, walking, travelling and taking part in social activities.
Is the Effect Substantial and Long Term?
A substantial adverse effect is simply an effect which is more than minor or trivial. It is important to note that where the effect of the impairment is reduced or controlled by medication, medical treatment or aid, the effect of this treatment should be ignored when deciding whether the impairment is having a substantial adverse effect on an employee’s daily activities.
This effect must be considered long-term, i.e. have lasted or is likely to last for twelve months or the rest of the person’s life, if they are expected to live for less than twelve months.
As an employer, it is crucial to give thought to how an employee’s particular disability affects their day-to-day, rather than considering what their impairment is. An employer must not make assumptions as to whether their employee does have a disability or not, or focus on whether it is diagnosed, as long as the employee can show that they satisfy the S.6 EqA test that the impairment has a substantial and long-term adverse effect on their ability to carry out day-to-day activities.
Progressive and Recurring Conditions
Some conditions start as having a minor effect on daily life but get progressively worse over time, for example, dementia or motor neurone disease. With such conditions, it doesn’t matter if the condition currently only has a minor effect, it can still be treated as a disability under the EqA from the moment of diagnosis as long as it is having some effect on an employee’s daily life now and is likely to have a substantial effect in the future.
Similarly, recurring conditions, like ME and depression, are treated as a disability under EqA even if the adverse effects do not last for more than twelve months at a time. However, it will be necessary for the employee to show that the adverse effects are likely to come back again in the future.
Is Long Covid a Disability?
Since the pandemic, there has been a lot of discussion over whether or not long Covid is a disability. Especially, as the symptoms can vary so much from one person to the next.
Earlier this year, in Burke v Turning Point Scotland, an employment tribunal held that a caretaker suffering from long Covid, who had been on long-term sickness absence for a period of nine months before his dismissal, was ‘disabled’ for the purposes of the EqA. Mr Burke’s symptoms included severe headaches, joint pain and extreme fatigue and he struggled with day-to-day tasks such as showering, dressing, cooking and shopping because of a lack of energy. The tribunal was satisfied that he had a physical impairment which had an adverse effect on his ability to carry out day-to-day activities and that it was substantial and long-term. This was despite a lack of medical evidence and that his condition had not yet lasted 12 months or longer. The tribunal found that since it was likely to last for 12 months, this was sufficient to meet the ‘long-term’ test.
This was the first time an employment tribunal in the UK has ruled that a person’s long Covid was capable of being a disability protected by the EqA. While each case will turn on its own facts, it does seem possible that other employees in similar situations will be able to persuade a tribunal that their long Covid amounts to a disability, especially as the symptoms suffered by Mr Burke are common among long Covid sufferers.
It is worth noting, however, that in the subsequent case of Quinn v Sense Scotland, it was made clear that while long Covid can be considered a disability under the EqA, an employee who caught Covid two and a half weeks before her dismissal, was therefore not disabled at the relevant time, i.e. at the time of her dismissal, as her long Covid was diagnosed much later. This case will come as reassurance to employers that just because an employee has, or has previously had Covid, will not automatically qualify them as a disabled person. They must demonstrate that they are disabled at the time of the alleged act of which they are complaining.
Acas has published guidance on dealing with long Covid for employers and employees, including whether long Covid is treated as a disability and how employers should support an employee’s return to work. The guidance recommends that employers focus on the reasonable adjustments that they can make rather than trying to work out if an employee’s condition is a disability.
We Can Help
Our employment team at Witan solicitors have considerable experience in advising employers on the law relating to disability discrimination. For further action advice, please email us.
