Whether or not you are protected from discrimination at work depends on if you can actually show that you have a disability. For legal purposes, the meaning of disability is much wider than might be commonly understood. Ultimately, only an employment tribunal can decide whether an employee has a disability and is therefore protected against discrimination at work.

Disability is one of the nine characteristics which are protected by the law under the Equality Act 2010 (the Act). The Act says that someone is to be regarded as disabled if they have a “physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.”

Employers’ duty to make reasonable adjustments for disabled employees

If an individual satisfies the above definition, they will enjoy legal protection against discrimination. In addition, a legal duty is placed on their employer to make reasonable adjustments for them in the workplace, to help them do their job or to return to work after a period of sickness absence.

This means the employer must go further than they would for a non-disabled employee; it is a rare example of lawful positive discrimination. A non-disabled employee cannot insist on the same treatment in the workplace and cannot bring a discrimination claim against their employer based on the more favourable treatment their disabled colleague has received.

If an employer fails to make reasonable adjustments for a disabled employee, then they commit an act of disability discrimination for which a claim may be made in the employment tribunal.

Determining whether an employee is disabled

When an employment tribunal is deciding whether or not someone is disabled, they will ask the following questions:

• Does the claimant have an impairment which is either mental or physical?
• Does the impairment affect the claimant’s ability to carry out normal activities and duties at work (looking at what they cannot do or can only do with difficulty), and does that have an adverse effect?
• Is the adverse effect substantial (i.e. more than trivial)?
• Is the adverse effect long-term?

All of these factors must be considered in deciding whether or not an individual is disabled.

Excluded conditions and those deemed to be a disability

Some conditions are accepted outright as amounting to a disability, these include:

• An individual certified as blind, severely sight impaired, sight impaired or partially sighted by a consultant ophthalmologist
• Someone with cancer, HIV or multiple sclerosis

A employee who has one of these illnesses will be protected from the point of medical diagnosis.

Conversely, some conditions are specifically excluded from protection, even though they may, satisfy the definition of disability. For example:

• Addiction to, or dependency on, non-prescribed drugs (alcohol, nicotine, etc)
• Tendency to set fires
• Tendency to steal
• Tendency to physical or sexual abuse of others
• Exhibitionism or voyeurism
• Hay fever (although this may be taken into account where it aggravates the effect of another condition)

Who can bring a claim for disability discrimination?

There are three categories of people who may, potentially, suffer disability discrimination at work and be able to bring a claim against their employer. These are:

• Someone who is themselves regarded as disabled under the Act
• Someone who experiences discrimination at work because they are associated with a disabled individual, for example their child or partner
• Someone who is not actually disabled but, is perceived (mistakenly) by the discriminator as being disabled

The law protects employees, workers, the self-employed, partners in firms and job applicants.

Physical and mental impairments can both lead to disability discrimination

Both physical and mental impairments may amount to a disability. A disability may arise from a wide range of impairments such as:

• asthma
• heart disease
• arthritis
• epilepsy
• autistic spectrum disorders
• learning disabilities
• bodily injuries
• mental health conditions such as phobias, eating disorders, PTSD, anxiety, panic attacks
• depression and other mental illnesses such as schizophrenia

An impairment does not have to be caused by an illness. The cause of the impairment does not have to be established at all – an employment tribunal will be more interested in the effect the impairment has on the individual’s abilities. It is therefore not necessary to categorise an impairment as either physical or mental.

Even if an impairment is caused by an excluded condition, the effect of that may amount to a disability because of the effect of the condition.

Examples of causes of impairment caused by an excluded condition

1. Addiction to alcohol is expressly excluded from the definition of disability under the Act. However, an alcoholic employee who developed liver disease as a result of a dependency on alcohol would have an impairment which might amount to a disability.
2. By itself, obesity is not classed as a disability. However, if it causes breathing and mobility difficulties which affects someone’s ability to walk, it could be an impairment which amounts to a disability.

Substantial adverse effect of a disability

A substantial effect means one that is more than minor or trivial. One way of assessing this is to compare the time taken to carry out a normal day-to-day task by the person with the impairment compared to an employee without it.

Another factor to consider is the way in which the person will carry out their normal day-to-day activities and workplace duties.

An employment tribunal will also look at whether a person avoids doing certain things, possibly because this causes them pain. It is important to look at the things a person cannot do at work, as well as what they do with difficulty.

Are the effects of a treatment considered when measuring a disability?

Where an employee is receiving treatment or other corrective measures have been applied (for example, the use of a prosthesis or following a particular diet), the Act states that the effect of this is to be disregarded. The impairment continues to be regarded as having a substantial long-term effect, providing that it would have without treatment.

For example, if someone wears a hearing aid, whether or not their impairment has a substantial adverse effect must be decided by reference to what their hearing level would be without the hearing aid.

The only exception to this is in respect of sight impairment which could be (or is) corrected by glasses or contact lenses. In these cases, the tribunal will consider only any adverse effect on ability to carry out normal workplace activities which remain when the person is wearing their glasses or contact lenses.

Long-term effects of an impairment

A long-term effect of an impairment is one:

• that has already lasted 12 months
• is likely to last at least 12 months
• is likely to last for the rest of the person’s life

Note that in this context, “likely” means “could well happen”.

A person who is deemed to be disabled due to an illness (e.g. because they have cancer) does not have to satisfy this requirement for effects to be long-term.

Where someone has a condition that recurs sporadically, they may still be regarded as disabled. For example, some types of arthritis can go into remission and then come back.

In addition, an employee who previously had a disability but has recovered or has improved to the extent that the effects have become less substantial may still be protected against disability discrimination at work.

Examples of disability discrimination in the workplace

Disability discrimination may occur in the workplace in many ways, but some common examples include:

• An employer failing to make adjustments to an absence management process where the absence is caused by an illness or condition which amounts to a disability.
• Imposing performance targets which are unachievable for a disabled employee due to their disability.
• Dismissing an employee from work because of their disability.
• Disciplining an employee because of something related to their disability.
• Failing to award a bonus or benefit to a disabled employee.
• An employer failing to make changes to a disabled employee’s working environment to assist them in carrying out their job e.g. providing an orthopaedic chair.
• Failing to make changes to a disabled employee’s working hours or other conditions to assist them in carrying out their job.
• An employer refusing to grant a flexible working request due to the employee’s association with a disabled person, such as a child or partner.
• Refusing to employ someone because of a belief that their health with deteriorate in the future.
• Refusing to make adaptations to the selection process for a disabled person applying for a job.

If you feel as though you have been discriminated against in your workplace due to a disability, please do not hesitate to get in touch with one of our employment law specialists, who will be able to provide expert advice on how to proceed.