Disability Discrimination Act

 

Does the Disability Discrimination Act 1995 still exist?

 

Yes, the Disability Discrimination Act 1995 still exists, and is still lawfal, it was added as part of the Equality Act in 2010.

The Equality Act 2010 says that you must not be discriminated against because:

  • You have a disability.
  • Someone thinks you have a particular disability.This is known as discrimination by perception.
  • You are connected to someone with a disability. This is known as discrimination by association.

In the Equality Act a disability means a physical or a mental condition which has a substantial and long-term impact on your ability to do normal day to day activities.

You are also covered by the Act if you have a progressive condition like HIV, cancer and multiple sclerosis, even if you are currently able to carry out normal day to day activities. You are protected as soon as you are diagnosed with a progressive condition.

You are also covered by the Act if you had a disability in the past.

  • For example, if you had a mental health condition in the past which lasted for over 12 months, but you have now recovered, you are still protected from discrimination because of that disability.

The Act does not protect non-disabled people from discrimination. So it is not discrimination to treat a disabled person more favourably than someone who is not disabled or someone who does not have the same disability.

  • For example, if an employer decides to offer an apprenticeship to a disabled student. People who wanted to have the opportunity to be an apprentice but who are not disabled could not claim that they had been discriminated against.

What is disability discrimination?

This is when you are treated differently because of your disability in one of the situations that are covered by the Equality Act. The treatment could be a one-off action or as a result of a rule or policy. It doesn’t have to be intentional to be unlawful.

 

Different types of disability discrimination

There are six main types of disability discrimination.

 

1. Direct discrimination

This happens when someone treats you worse than another person in a similar situation because of your disability.

  • For example, during an interview, a job applicant tells some employers that he has multiple sclerosis. The employers decides not to appoint him even though he’s the best candidate they have interviewed, because they assume he will need a lot of time off sick.

 

2. Indirect discrimination

Indirect discrimination happens when an organisation has a particular policy or way of working that has a worse impact on people who share your disability compared to people who don’t.

  • For example, an employer requires all job applicants to use an online recruitment portal. The portal is not accessible for people with visual impairments and you cannot use screen reading software with it. Unless the employer offered alternative ways for job applicants to apply, this would be indirect discrimination.

Indirect disability discrimination can be permitted if the organisation or employer is able to show that there is a good reason for the policy. This is known as objective justification.

 

3. Failure to make reasonable adjustments

Under the Act employers and organisations have a responsibility to make sure that disabled people can access jobs, education and services as easily as non-disabled people. This is known as the ‘duty to make reasonable adjustments’.

Disabled people can experience discrimination if the employer or organisation doesn’t make a reasonable adjustment. This is known as a ‘failure to make reasonable adjustments’.

  • For example, an employee with a mobility impairment needs a parking space close to the office. However, her employer only gives parking spaces to senior managers and refuses to give her a designated parking space.

What is reasonable depends on a number of factors, including how big the organisation making the adjustment is. If an organisation already has a number of parking spaces it would be reasonable for them to designate one close to the entrance for the employee.

 

4. Discrimination arising from disability

The Act also protects people from discrimination arising from disability. This protects you from being treated badly because of something connected to your disability, such as having an assistance dog or needing time off for medical appointments. This does not apply unless the person who discriminated against knew you had a disability or ought to have known.

  • For example, a private nursery refuses to give a place to a little boy because he is not toilet trained. His parents have told them that he isn’t toilet trained because he has Hirschsprung’s Disease, but they still refuse to give him a place. This is discrimination arising from the little boy’s disability.

For example, in the workplace if an employer automatically excludes any employee with a high level of sickness absence from receiving a bonus.

But if the organisation or employer can show that there is a good reason for the way they treat you, then it will not be discrimination arising from disability.

For example, an airline pilot whose eyesight has deteriorated is no longer allowed to fly planes. This is known as objective justification.

 

5. Harassment

Harassment occurs when someone treats you in a way that makes you feel humiliated, offended or degraded.

  • For example, a disabled woman is regularly sworn at and called names by colleagues at work because of her disability.

Harassment can never be justified. However, if an organisation or employer can show it did everything it could to prevent people who work for it from behaving like that, you will not be able to make a claim for harassment against it, although you could make a claim against the harasser.

 

6. Victimisation

This is when you are treated badly because you have made a complaint of disability related discrimination under the Equality Act. It can also occur if you are supporting someone who has made a complaint of disability related discrimination.

  • For example, an employee has made a complaint of disability discrimination. The employer threatens to sack them unless they withdraw the complaint.

What else does the Act protect me against?

 

Being asked health questions designed to screen out disabled job applicants.

The Act says that employers cannot ask job applicants about their health or disability until they have been offered a job unless certain exceptions apply.

  • For example, a job applicant fills in an application form which asks people to state whether they are taking any medication. Unless there is a good reason why the employer needs to know this information, then the question should not be asked.

For more information on this please see the guidance on pre-employment health questions.

Circumstances when being treated differently due to disability is lawful The Act has some exceptions that allow employers or organisations to discriminate because of disability.

There is an exception called an occupational requirement which means that an employer can specify that someone needs to have a particular protected characteristic in order to do a job. However, the employer has to show that there is a genuine need for this.

 

Further information

If you think you might have been treated unfairly and want further advice you can contact the Equality Advisory Support Service

Freephone 0808 800 0082

Textphone 0808 800 0084

Or write to them at

Freepost Equality Advisory Support Service FPN4431

 

The Equality and Human Rights Commission has also produced a range of legal guidance on the Equality Act which you can find on their website.