Disability / Disability discrimination / Discrimination
What is disability discrimination?
Disability is one of nine protected characteristics under the Equality Act 2010.
The Equality Act says that in most cases, it’s unlawful for the following groups to discriminate against you based on your disability:
- Service providers, like shops, gyms, cinemas and restaurants
- Public bodies, like the NHS, police, local councils and government departments)
Disability discrimination is when you are treated worse than others because of a disability. This might be due to:
- A one off-incident
- A rule or policy
- A physical or communication barrier that makes it harder for you to access something.
If you think you have been discriminated against because of a disability, you may be able to bring a legal claim under the Equality Act.
The Human Rights Act 1998 also makes it unlawful for public bodies to discriminate against you for being disabled. Read more on this below. You can also read all our pages on disabled people’s rights here.
What’s a disability?
The Equality Act gives a specific definition of disability: a “physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities.”
What’s a physical or mental impairment?
Some impairments are automatically included under this definition, like
- Having cancer
- Living with HIV
- Having multiple sclerosis (MS)
- Being registered as blind or partially sighted.
Other physical or mental impairments can include:
- Mobility difficulties
- Learning difficulties
- Mental health issues
- Genetic and progressive conditions
- Chronic pain or fatigue
- Hidden conditions like asthma or diabetes
What are normal day-to-day activities?
These are things most people to regularly. It includes daily tasks like getting dressed, preparing food, or communicating with others.
It also covers study-related tasks, like using a computer, completing written work or following a timetable.
What does “substantial adverse effect” mean?
A substantial adverse effect is something which is more than a minor or trivial. It can include things like
- If you can’t do the normal day to day activity at all
- If you avoid doing the normal day to day activity because for you, it’s painful, tiring, or you don’t have the energy or motivation.
What does ‘long term effect’ mean?
“Long-term effect” means any effect that has lasted or will probably last 1 year or longer, or for the rest of your life.
This can include things like
- if you have a breathing condition which developed from a lung infection
- If you have a progressive condition (a condition which gradually gets worse over time).
There are special rules for recurring or fluctuating conditions.
These can be flares that come and go, or sometimes having more symptoms, and then having less. An example would be arthritis.
For example, if you have rheumatoid arthritis, you might get a flare up which gives you substantial adverse effects for a few weeks. After this you might have some time without symptoms, or a period of remission.
The law says:
- These substantial adverse effects are “continuing” if they will probably come back.
- These adverse effects are “long term” if they will probably come back 12 months after the first flare up.
Use this helpful tool to check if you’re classed as disabled under the Equality Act.
What are the main types of disability discrimination?
There are six main types of disability discrimination under the Equality Act:
1) Direct discrimination
Direct discrimination is where you are treated less favourably than others because of your disability. For example, if you are denied access to a service because you are a disabled person.
2) Indirect discrimination
Indirect discrimination is where:
- a policy or arrangement which applies to everyone equally, but
- It has a worse effect on you (puts you at a particular disadvantage) because you are disabled
For example, say a council is planning to provide more services. The council shares consultation leaflets about its plans, so people can have their say. However, it does not provide an easy read version. This makes it more difficult for people with learning difficulties to take part in the consultation and have their say. This could be indirect discrimination.
What is an objective justification?
Some kinds of discrimination, including indirect discrimination, are not unlawful if:
- there is a good reason for the policy (it has a legitimate aim) and
- it is proportionate – the same goal could not be achieved in a less discriminatory way.
This is called an “objective justification”.
3) Failure to make reasonable adjustments
Public bodies, service providers and employers have a duty to make reasonable adjustments to avoid discriminating against disabled people.
Examples of reasonable adjustments could be:
- a shop that provides an access ramp or a lift so everyone can enter
- a police force that makes sure its complaints procedure is accessible to people who have difficulties with reading, writing, or talking,
- a bank that provides a portable induction loop for people with hearing aids.
Not making reasonable adjustments for disabled people is discrimination.
4) Discrimination arising from disability
This kind of discrimination is when
- you are treated worse or things are made harder for you or a reason related to your disability, and
- the person who discriminated against you knew, or should have known, that you had a disability.
For example, if an employer refuses to promote someone who has regular hospital appointments because of their disability. This would probably be unlawful discrimination – unless your employer can show an “objective justification” (see above)
Harassment is when a public body, service provider or employer
- acts in a way you don’t want (engages in unwanted conduct) , and
- this behaviour is related to your disability, and
- this behaviour violates your dignity or creates a hostile, degrading, humiliating or offensive environment.
The behaviour could be verbal, written or physical.
Examples of this could be things like
- calling you an insulting name related to your disability, or
- asking inappropriate questions based on your disability, or
- excluding you from meetings or events based on your disability.
It can also be harassment if your dignity has been violated by seeing this type of behaviour towards someone else (even if that person isn’t disabled).
Harassment is unlawful.
Victimisation is when you are treated badly because you’ve made a discrimination complaint under the Equality Act, or because you’re supporting someone who has.
For example, it would be victimisation if you were dismissed because you’d made or supported a discrimination claim.
Other kinds of unlawful discrimination
The following types of discrimination are also unlawful under the Equality Act:
Discrimination by perception: this is when you’re discriminated against based on a disability that someone believes you have, even when this is not actually the case.
Discrimination by association: this is when you’re discriminated against because of your relationship to a disabled person.
Is disability discrimination protected by human rights laws?
The European Convention on Human Rights sets out your human rights. They are covered under the Human Rights Act 1998 in the UK.
Article 14 of the Human Rights Act gives you the right to be treated fairly and not discriminated against.
Article 14 is different to the Equality Act. Article 14 does not give you a specific right not to be discriminated against. Instead, it says that you must be able to enjoy all your other rights in the Human Rights Act without discrimination.
For example, Article 8 of the Human Rights Act gives you the right to have your private and family life respected. Article 14 means you should have this right without discrimination.
For example, it would likely be a violation of Article 14 and 8, if a judge ruled that
- a parent should not look after their child, and
- and the only reason was that the parent had a mental health condition, and
- the judge didn’t look carefully at whether the parent could actually take care of the child, or didn’t look to see if there was another, less drastic thing to do.
Who can bring a Human Right Act claim?
Human Rights Act claims can only be brought against public bodies, such as the police, NHS, government departments and local authorities.
If a private body has discriminated against you, like a shop or your employer, you can only bring a claim under the Equality Act.
Read our ‘Stand up to power’ page for more information on how to bring a human rights claim.
If you think you’ve been discriminated against, please see our page: “What can I do if I’m discriminated against?”
What are my rights on this?
Find out more about your rights and how the Human Rights Act protects them
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