What counts as a disability? Do I have a disability?

The Equality Act 2010 defines a disability as you having "a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities".

What does ‘substantial’ and ‘long-term’ mean in terms of disabilities?

  • substantial’ is more than minor or trivial, eg it takes much longer than it usually would to complete a daily task like getting dressed.
  • long-term’ means 12 months or more, eg a breathing condition that develops as a result of a lung infection.

What are the different types of disability discrimination?

Disability discrimination can take many different forms. We'll try to explain each of them here.

  • Direct discrimination: This is where you have been, or would be, treated less favourably because of your disability than someone without a disability would be treated in the same circumstances. Claims can also be brought if you are treated less favourably due to the employer perceiving you to have a disability (even if you actually do not), or by association i.e. having you responsibility of a disabled family member.
  • Indirect discrimination: If your employer operates a policy that disadvantages disabled people despite the fact that on the face of it, it has nothing to do with disability. The employer can justify this if they can prove that it is a "proportionate means of achieving a legitimate aim"; which in reality is not the easiest thing to prove in most cases.
  • Discrimination "arising from" a disability: If you are treated unfavourably due to something that is connected to your disability, rather than the disability itself. Examples can be a tendency to make spelling mistakes due to Dyslexia or not receiving a bonus due to a high sickness absence due to your disability.
  • Failure to make a reasonable adjustment: If you have a disability your employer have to make reasonable adjustments to help reduce any disadvantages you might have. Typically you need to be substantially disadvantaged before this requirement comes into effect and it can be divided into three categories:
    • Physical features of the workplace disadvantages you.
    • Auxiliary aids not being provided; typically things like specialised or adapted equipment.
    • A ‘provision, criterion or practice’ (PCP) puts you at a disadvantage. This includes all arrangements and practices within the workplaces and means more than just policies and procedures.
  • Harassment: This typically occurs when the employer creates a degrading or humiliating work environment. It doesn't have to be directed at you as an individual but can be the culture of the workplace in general. This extends to third parties especially if it has happened more than twice; irrespective of whether the third party is the same or not. See our template grievance letter for harassment.
  • Victimisation: If you are treated less favourably due to you having complained, tried to complain or helped someone else to complain the employer is victimising you.

 

 



Updated: 13th May, 2021
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