Definition of disability
A person is 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.
The definition covers physical and most mental impairments, except those listed below. For example, dyslexia can constitute a disability if it has a substantial long term adverse effect on a person’s ability to carry out normal day-to-day activities which could include examinations and tests. The mental conditions that are excluded from the definition are:
- a tendency to set fires
- a tendency to steal
- a tendency to physical or sexual abuse of others
Dependence on alcohol or any other substance does not count as a disability unless it has resulted from drugs that were originally medically prescribed. However, illness or disease that results from drug or alcohol dependency, such as heart or liver disease, may qualify as a disability.
Similarly obesity will not of itself be a disability but the impact of obesity (e.g. asthma, knee problems and anxiety and depression) might be such that the individual is disabled.
People with certain conditions automatically qualify as disabled, regardless of the effect their condition has on their activities. These are:
- people who have been certified or registered as blind or partially sighted
- people with cancer
- people with HIV infection
- people with multiple sclerosis
When assessing the effect a person’s impairment may have, any medical treatment that he or she is receiving or any aid or prosthesis that he or she is using must not be taken into account. For example, if a person is taking medicine and receiving counselling for clinical depression, the question for the purpose of the legal definition of disability is what effect the illness would have on the individual if those steps were not taken. The only exception to this principle relates to people with sight impairments: the extent to which a person’s sight would be corrected by the use of glasses is taken into account. In addition, if a person’s condition has led to permanent improvement, as in the case where a mobility impairment has been corrected by surgery, that treatment can also be taken into account.
When considering whether the impairment has an adverse effect on a person’s day to day activities, the type of things to consider include:
- manual dexterity
- ability to lift, carry or otherwise move everyday objects
- speech, hearing or eyesight
- memory or ability to concentrate, learn or understand
- ability to perceive the risk of physical danger
In deciding whether an activity is a normal day to day activity, take account of how far it is normal for most people and carried out by most people on a daily or frequent or fairly regular basis. So, an impairment that only affects a person’s ability to carry out activities of a specialist kind, such as playing a particular musical instrument or taking part in a particular hobby might not amount to a disability.
A person’s impairment is viewed as having a substantial effect if the effect is more than minor or trivial. Progressive conditions are viewed as disabilities as soon as they have any effect on an individual’s activities and severe disfigurements are viewed as having a substantial effect on a person’s activities, unless they consist of body piercing or a tattoo that has not been removed.
To count as ‘long-term’, a person’s impairment must have already affected their activities for at least 12 months, or be likely to do so. Case law has defined 'likely' in this context as 'could well happen'.
If an individual has a condition that is subject to periods of remission or improvement (as may be the case, for example, with arthritis), the impairment is treated as continuing to have a substantial effect during the periods of remission or improvement.
Direct discrimination occurs when someone is treated less favourably than another person because of their disability. This is unlawful and there is no possibility of being able to justify it.
Indirect discrimination occurs when you have a condition, rule, policy or even practice that applies to everyone but particularly disadvantages employees who are disabled. Indirect discrimination can be justified if you can show that it is a ‘proportionate means of achieving a legitimate aim’. This defence to an indirect discrimination claim is sometimes called objective justification.
A ‘legitimate aim’ is likely to be any lawful aim you have in running your business, but if there is a discriminatory effect, the sole aim of reducing cost is likely to be unlawful. ‘Proportionate means’ requires you to consider what is fair and reasonable including showing that you have considered less discriminatory options.
Discrimination arising from disability
This form of disability discrimination is unique to disability discrimination law and occurs when you treat a disabled person unfavourably because of something arising in consequence of the person’s disability.
Discrimination arising from disability is not unlawful if you can objectively justify it, i.e. if you can show that the treatment is a proportionate means of achieving a legitimate aim.
For example, if you tell a visually impaired person who uses a guide dog that they are unsuitable for a job because you are nervous of dogs and would not allow it in the office, then, unless you can objectively justify what you have done, this is likely to be discrimination arising from disability. The refusal to consider the visually impaired person for the job is unfavourable treatment which is because of something arising from their disability, i.e. their use of a guide dog.
You can only be liable for this form of discrimination if you knew or could reasonably have been expected to know that the person is disabled.
The duty to make reasonable adjustments
The duty to make reasonable adjustments contains three requirements and these are:
- taking such steps as are reasonable to avoid disadvantage, where any workplace provision, criteria or practice (i.e. the way things are done) puts a disabled person at a substantial disadvantage compared with people who are not disabled
- making changes to overcome the barriers created by physical features of the workplace
- providing extra equipment (which the Equality Act calls an ‘auxiliary aid’) or getting someone to do something to assist the disabled person (which the Act calls an ‘auxiliary service’)
The duty applies to a disabled person who tells you that he or she is thinking of applying for a job with you – as well as to job applicants and people who already work for you.
The duty only arises where the disabled person is put at a substantial disadvantage compared with non-disabled people. So the disadvantage must be more than minor or trivial.
You are not under a duty to make reasonable adjustments if you neither know, nor could reasonably be expected to know, that the individual is disabled and likely to be put to a substantial disadvantage.
Some of the potential steps that you might need to take in relation to a disabled person to comply with your duty to make reasonable adjustments include:
- adjusting premises to accommodate the disabled person which could include adjusting fixtures, fittings, furniture, equipment, entrances and exits
- allocating some of the disabled person’s duty to another person
- assigning the disabled person to a different place of work
- allowing the disabled person time off work for rehabilitation, assessment and treatment
- giving or arranging for training or mentoring for the disabled person by, for example, a work colleague or manager
- acquiring and modifying equipment
- modifying instructions or reference manuals
- modifying procedures, for example, for testing and assessment
- providing a reader or interpreter
- providing special supervision or other support
For example, if a small part of a job involves working at heights but this could be allocated to another employee relatively easily, it is likely to be a reasonable adjustment to re-allocate those duties to accommodate an employee who has vertigo.
Altering duties on a temporary basis might also be reasonable, as long as there is a prospect of this helping the employee return to full duties in the longer term.
When deciding whether an adjustment is reasonable the main considerations are:
- how effective the adjustment will be in avoiding the disadvantage
- its practicality
- the cost (including staff time costs and disruption).
- the employer’s resources and size
- the availability of financial support
The adjustment must have a real prospect of being effective in helping to remove or reduce any disadvantage the disabled person is facing. If it will not have any impact, there is no point in making adjustments.
The easier an adjustment is, the more likely it is to be reasonable. However, just because something is difficult does not meant that it cannot be reasonable.
If the adjustment costs little or nothing and is not disruptive then it would be reasonable unless some other factor (such as impracticality or lack of effectiveness) made it more unreasonable.
It would be reasonable to expect employers to spend more on adjustments for an existing employee than for, say, someone attending a job interview for a temporary job. It is likely to be reasonable for an employer to spend at least as much on an adjustment to enable it to retain a disabled employee, including any retraining, as might be spent on recruiting and training a replacement.
If an adjustment costs a significant amount, then it is more likely to be reasonable to make if the employer has substantial resources. Resources will be viewed across the whole organisation, not just the workplace where the disabled person is or would be working.
Jobcentre Plus has disability employment advisors who provide advice on employing disabled people and can put employers in touch with the Access to Work scheme which can help with the extra employment costs of employing a disabled person. There is also the Job Introduction scheme, which provides financial help for employers to take on a disabled person for a trial period, and the Workstep scheme which enables employers to give work opportunities to more severely disabled people.
If you do have information about a person’s disability, this will amount to special category data under the EU General Data Protection Regulation (GDPR). You should therefore take special care to ensure that you comply with data protection law. Among other things, this involves ensuring that the information is restricted to those who need to know it. So, for example, it may be sufficient for the disabled employee's supervisor to know that the adjustment needs to be made without being given details of the employee’s disability. (See GDPR - an overview and Processing personal data lawfully under the GDPR in the Data Protection under the GDPR section of the website for further information).
There are special rules in respect of disabled agency workers which deal with how the duty to make reasonable adjustments is split between the agency and the company to which the worker is sent (hirer).
If the agency worker is likely to be placed at a significant disadvantage by a provision, criterion or practice or a physical feature of the premises of all or most of the companies where they work, then the agency is responsible for considering what reasonable adjustments should be made. On the other hand, it is the hirer's responsibility to consider any reasonable adjustments which may need to be made as a result of the hirer's particular arrangements or premises, i.e. those which are different from the other companies where the worker works.
Whether it would be reasonable for a hirer to make an adjustment depends on all the usual factors. These are likely to include the length of time that the disabled agency worker will be working at the hirer.