What counts as a disability in law?

Disability is not always obvious. The Disability Discrimination Act (DDA) defines a person as disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.

• ‘Normal day-to-day’ means things that people do on a regular or daily basis, such as reading, writing, using the telephone, having a conversation and travelling by public transport .
• ‘Long-term’ usually means the impairment should have lasted or be expected to last at least a year.
• ‘Substantial’ means not minor or trivial.

The key thing is not the impairment but its effect. Some people don’t realise that impairments such as migraines, dyslexia, asthma and back pain can count as a disability if the adverse effect on the individual is substantial and long-term. Some conditions automatically count as disabilities for the purposes of DDA, from the point at which the individual first has them – these are cancer, HIV and multiple sclerosis (MS).

Your local Jobcentre Plus or the Equality and Human Rights Commission ( EHRC) can tell you more. The EHRC has advice on what counts as a disability according to the law.

Treating disabled people fairly: Avoiding discrimination

Employers must treat job-seekers and disabled employees fairly to avoid:

• the three types of disability discrimination;
• victimisation;
• harassment.

Disability discrimination

Details of disability discrimination law, with case studies to help, are found in the Disability Discrimination Act 1995 Code of Practice on Employment and Occupation. This explains these legal concepts in more detail.

The three types of unlawful discrimination are:

• direct discrimination;
• failure to make a reasonable adjustment;
• disability-related discrimination.

‘Direct’ discrimination cannot be justified and happens when:

• a disabled person is treated less favourably than a non-disabled person whose relevant circumstances are the same or not materially different;
• the treatment is on grounds of disability.

For example, an employer having a blanket ban on employing someone with a particular disability.

Failure to make a reasonable adjustment cannot be justified and happens when an employer fails to make a reasonable adjustment for a disabled person.

Disability-related discrimination is when a disabled person is treated less favourably for a disability-related reason and the treatment cannot be justified. For example, treating someone differently because they have a guide dog.

Victimisation

Victimisation is where someone is treated less favourably because, for instance, they have made a complaint at work or used their legal rights or have supported someone to do this.

For example, a colleague of a disabled employee attends a tribunal hearing to give evidence, in good faith, to support a disability discrimination claim. After the hearing, the employer brands the colleague 'a troublemaker' for giving evidence and withholds a bonus. This is likely to be victimisation.

Harassment

Harassment is any form of unwanted and unwelcome behaviour that has the purpose or effect of:

• violating the disabled person's dignity; or
• creating an intimidating, hostile, degrading, humiliating or offensive environment.

For example, a person with schizophrenia is often jokingly referred to by colleagues as being ‘a bit off the wall’. People with schizophrenia may experience the world differently to most people, and this may at times affect their behaviour at work or in other settings. However, regardless of the fact that colleagues may not have intended any offence, the disabled person feels that these remarks make them nervous about the work environment. The colleagues’ conduct is likely to amount to harassment and employers would have to deal with this.

Employers can help themselves by not making assumptions about disabled people and finding out about the effects of an applicant’s or employee’s impairment.

Help for businesses and workers on disability rights and discrimination law is also available from your local Jobcentre Plus or the EHRC.

The Department for Work and Pensions has advice for employers and the EHRC has particular advice for workers.

Disability equality in the public sector

The public sector and, potentially, its partners have a new Disability Equality Duty to make a real, positive change to the lives of disabled employees, ensuring they are treated fairly and equally.

Making reasonable adjustments

Employers are required to make 'reasonable adjustments' to jobs and workplaces for disabled workers. This is to ensure disabled people have equal opportunities in applying for and staying in work.

Confidentiality and data protection

Revealing a disability

If a disabled person expects an employer to make a reasonable adjustment, they will need to provide the employer with enough information to carry out that adjustment. Disabled people have a right to confidentiality and an employer must not disclose confidential details about them without their explicit consent.

Data protection

The Data Protection Act 1998 places duties on employers to ensure confidential and appropriate handling of ‘sensitive personal data’, which includes data about a person’s health.

The Data Protection Act also gives individuals the right to see personal data and information held or processed about them, provided they request it in writing. This provision is important in accessing personal information relating to a risk assessment.

Who has health and safety responsibilities?

Health and safety laws place duties on everyone concerned with work activities.

• Employers have a general duty to take reasonably practicable measures to protect workers, and those affected by their work activities, from the risk of injury or harm at work. They must also provide workers with the information, instruction, training and supervision required to ensure their health, safety and welfare at work.
• Employers also have specific duties depending on the nature of their business.
• Employees must look after themselves and look out for others who may be affected by their work activities. They must also co-operate with their employers on health and safety.

Reasonably practicable

The law does not expect employers to eliminate all risk, but they are required to protect people as far as ‘reasonably practicable’. This is a legal concept which means balancing the level of risk against the measures needed to control the risk in terms of money, time or trouble. HSE has set out some principles of sensible risk management.