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Discrimination arising from disability
Direct discrimination against a disabled person is unlawful. For example, it would be direct disability discrimination for an employer to single out a disabled applicant to take a special typing test to check that they can perform a typing job.
As well as direct disability discrimination, section 15(1) of the EA 10 provides for a new kind of offence: “discrimination arising from disability”. This is where a disabled person is treated unfavourably because of something arising in consequence of their disability.
The most important feature of this new offence is that no comparator is needed. The disabled person does not need to point to a non-disabled person who was not disadvantaged. It is about unfavourable treatment — not less favourable treatment — because of something connected with their disability.
The phrase covers anything arising out of an individual’s own disability. The most obvious example is that of sickness absence. Where an employer decides to end the employment of a disabled person because of a period of long-term sick leave, the employer treats the worker unfavourably (the decision to dismiss) for a reason connected with their disability (the long period of absence).
What if the employer does not know (and cannot reasonably be expected to know) about the disability?
In these circumstances, the employer will not be liable. However, an employer faced with behaviour that is out of character cannot simply close its eyes to the obvious, as this example from the EHRC Code of Practice illustrates:
A disabled man who has depression has been at a particular workplace for two years. He has a good attendance and performance record. In recent weeks, however, he has become emotional and upset at work for no apparent reason. He has also been repeatedly late for work and has made some mistakes in his work. The worker is disciplined without being given any opportunity to explain that his difficulties at work arise from a disability and that recently the effects of his depression have worsened.
The sudden deterioration in the worker’s time-keeping and performance and the change in his behaviour at work should have alerted the employer to the possibility that these were connected to a disability. It is likely to be reasonable to expect the employer to explore with the worker the reason for these changes and whether the difficulties are because of something arising in consequence of a disability.
EHRC Code of Practice on Employment
Is there an obligation to tell the employer about the disability?
It is up to any individual whether or not to tell their employer about their disability, but they should understand that if they do not, they may lose protection under the EA 10 (as well as the chance to ask for reasonable adjustments). Many specialist charities offer helpful advice about the best way to manage disclosure of a medical condition, who best to disclose it to and on what basis. Workplace reps can also play an important role. A worker who has disclosed details of their condition should keep a careful record.
Does the employer have a defence to a claim for discrimination arising out of disability?
Yes, If an employer can show the discrimination was a “proportionate response to a legitimate aim”. For more about this test, see the section on “indirect discrimination”. An employer cannot satisfy this test unless it had already made all reasonable adjustments to accommodate the disability. For example, dismissing a disabled employee following a period of long-term sickness absence will be “less favourable treatment” for a reason connected with the employee’s disability. However, the employer is likely to have a defence if it can show that it made all reasonable adjustments and met all the standards required for a fair dismissal because of long-term sickness absence when deciding whether to dismiss. This is looked at in Chapter 7.