The Equality Act 2010 defines six types of discrimination:
- Direct
- Indirect
- Discrimination Arising from Disability
- Harassment
- Victimisation
- Failure to Make Reasonable Adjustments
Discrimination arising from disability is an ambiguous legal phrase that catches many people out. This guide explains what it means and how it impacts employers.
Section 15 of the Equality Act 2010
We regularly meet clients caught out by Section 15 of the Equality Act 2010, aka The Disability Discrimination Act. It states:
‘A person (A) discriminates against a disabled person (B) if —
- A treats B unfavourably because of something arising in consequence of B's disability, and
- A cannot show that the treatment is a proportionate means of achieving a legitimate aim.’
The Equality Human Rights Commission Employment Statutory Code of Practice explains how this principle may be applicable in a working scenario. It reads:
‘An employer dismisses a worker because she has had three months’ sick leave. The employer is aware that the worker has multiple sclerosis and most of her sick leave is disability-related. The employer’s decision to dismiss is not because of the worker’s disability itself (so not direct discrimination). However, the worker has been treated unfavourably because of something arising in consequence of her disability (namely, the need to take a period of disability-related sick leave).’
(Paragraph 5.3, EHRC Code.)
What is Meant by Discrimination ‘Arising from’ Disability
‘Arising from…’ can easily be missed. The second example given in the code explains:
‘A woman is disciplined for losing her temper at work. However, this behaviour was out of character and is a result of severe pain caused by cancer, of which her employer is aware. The disciplinary action is unfavourable treatment. This treatment is because of something which arises in consequence of the worker’s disability, namely her loss of temper. There is a connection between the ‘something’ (that is, the loss of temper) that led to the treatment and her disability. It will be discrimination arising from disability if the employer cannot objectively justify the decision to discipline the worker.’
(Paragraph 5.9, EHRC Code.)
What is ‘Objectively Justified’ or a ‘Proportionate Means of Achieving a Legitimate Aim’?
A legitimate aim is a genuine reason behind a discriminatory decision. Proportionate means the action must be appropriate and necessary in the circumstance; it is evaluated on a case-by-case basis.
What is Unfavourable Treatment?
Unfavourable treatment is any treatment that leaves you worse off. You do not have to compare your situation with anyone else; just prove you were left worse off by treatment due to something connected to your disability.
For example:
You apply for a place for your child at a local nursery. An underlying condition hampers their bowel control, and the nursery rejects them as they are not toilet trained. They are not directly discriminated against due to their disability but unfavourably treated as a result of something connected to their disability.
Is Unfavourable Treatment Ever Lawful?
Two instances can make unfavourable treatment lawful:
There’s a Good Reason for Unfavourable Treatment
The Equality Act specifies that unfavourable treatment is justifiable with a good enough reason. However, they should prove they made reasonable adjustments to accommodate a disabled person before bringing forward their reason.
The Person Discriminating Against You Does Not Know About Your Disability
Unfavourable treatment can be lawful if the person discriminating against you can prove that they:
- Did not know about your disability
- And could not reasonably have known
The burden is on them to prove they took reasonable steps to learn about your disability.
Things Related to Disability
Here are some common examples of things connected to a disability that an employer should reasonably adjust for:
- Need for regular healthcare appointments
- Need for specialist equipment
- Need for an assistance dog or animal
- Need for regular breaks
- Speech difficulties
- Movement difficulties
- Dietary restrictions
- Behavioural issues
- Difficulties commuting
Instruct Our Solicitors
If you need advice on disability discrimination, contact our experts today.
FAQ
What is discrimination arising from disability?
Discrimination arising from disability is unfavourable treatment due to something related to a disability.
What does discrimination arising from disability look like?
An employer could discipline an employee for losing their temper. However, their temper is shorter as they suffer from pain caused by cancer, and the employer is aware of their condition. Therefore, they were treated unfavourably as a result of something arising from a disability.
What is the test for discrimination arising from disability?
The test for discrimination arising from disability is A treating B unfavourably due to something caused by B’s disability, and A cannot show that their actions were appropriate to achieve a reasonable aim.
Featured image: Pexels Licence - Jakub Pabis
