Disability discrimination and the Equality Act 2010

Introduction

The Equality Act 2010 ('the Act') protects people from discrimination on the basis of age, gender reassignment, sex, race, religion or belief, pregnancy and maternity, marriage and civil partnership, sexual orientation and disability. These are called the protected characteristics of the Act.

The Equality Act 2010 applies in England, Scotland and Wales. The Act was not enacted in Northern Ireland, however, there are two laws which promote equality of opportunity for people with disabilities by banning disability discrimination and which give enforceable legal rights to people with disabilities. They are the Disability Discrimination Act 1995 and the Special Educational Needs and Disability (NI) Order 2005.

The Act states that a person has a disability if they have a physical or mental impairment and, this has a substantial and long term effect, on their ability to carry out normal day-to-day activities.

Only a court or a tribunal can declare whether a person has a disability under the terms of the Act. Your employer may ask an occupational health service to say whether you are covered by the Act, but all they can do is give an opinion. You could also speak to the medical/ health care professionals involved in your care, to ask their advice on whether you have the protected characteristic of disability.  

Some progressive conditions (for example, cancer, HIV, lupus and MS) are automatically considered as disability, so if you have one of these conditions, irrespective of how minor your symptoms may be, you are covered by the Act immediately after diagnosis. Also covered are people registered as blind and some with other visual impairments.

Recurring or fluctuating conditions such as arthritis, epilepsy and certain mental health conditions may be covered even if the effects cease periodically due to a period of remission.  However, the requirement for a long-term effect (see below) is still necessary. Remember that assessment considers a person as if they are not taking any medication or receiving treatment to ease or improve their condition.

 Physical or Mental Impairment  

If you have a diagnosis, it should be confirmed by written medical evidence, preferably from a medical expert. This should be a consultant grade surgeon or physician; or suitable practitioner such as your GP, occupational health doctor or counsellor. In the absence of a diagnosis, you will need a full and accurate description of your condition(s) and symptoms confirmed by written medical evidence. 

Substantial and long-term adverse effect 

Even if you recover from your impairment, you may still bring a claim against your employer if you are treated less favourably for having had that impairment.  

• medical evidence must provide assessment of the seriousness of your impairment and its effects 
• this must be more than a minor or trivial effect 
• the assessment ignores any medical treatment you receive and looks at the effect of your condition without treatment
• ‘long-term’ makes the distinction between an ordinary or short-term illness and a disability; long-term means that the impairment has:
  • lasted for at least 12 months, or 
  • is likely to last for at least 12 months, or 
  • is likely to recur or to last for the rest of a person’s life.

Normal day to day activities

The Act looks at a person’s impairment and whether it substantially affects their ability to carry out normal day-to-day activities. It does not provide an exhaustive list of day-to-day activities; these are considered to be things people do on a regular or daily basis including:   

• shopping
• reading and writing
• having a conversation or using the telephone
• watching television
• getting washed and dressed
• preparing and eating food
• carrying out household tasks
• walking and travelling by different modes of transport, and taking part in social activities
• control of your bowels or bladder
• understanding physical danger.

An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation, but its effects on more than one activity, taken together, could result in an overall substantial adverse effect.  

The cumulative effect of related impairments should be considered when determining whether the person has experienced a long-term effect for the purposes of meeting the definition of a disabled person. The substantial adverse effect of an impairment which has developed from, or is likely to develop from, another impairment should be taken into account when determining whether the effect has lasted, or is likely to last at least twelve months, or for the rest of the life of the person affected. 

For information on long COVID-19 please see our COVID-19 and time off guide. 

You can also access a range of resources and support relating to ill health and disability through our Peer Support Service.

The Act protects people from discrimination in all aspects of employment, including: 

• when applying for a job
• in the terms on which employment is offered
• in opportunities for training, promotion or other benefits
• in the way you are treated by your employer and colleagues
• in being selected for redundancy or by being dismissed when you have left your job, but still have a relationship with your previous employer e.g. requiring a reference.

Further to this, the Act places a proactive duty on employers to make reasonable adjustments to working arrangements or premises, in order to prevent disabled employees, job applicants or ex-employees from being disadvantaged. This includes making reasonable adjustments to the application and interview process, and careful consideration about providing references.  

Please see our Health Ability Passport Guidance for more information. 

 The Equality Act 2010 applies to all employees, and most types of workers, whatever the size of the employer and whether in the public or private sector, including: nurses, prison officers, contract workers, office holders, people on work experience, partners in firms and barristers. Agency workers are also protected by the Act.

The Act applies to trade organisations including trade unions, qualifying bodies (such as Nursing and Midwifery Council (NMC) and examination boards), and trustees and managers of occupational pension schemes as these are all considered areas of service provision. This guide does not cover these areas.

 

You are not obliged to tell your employer that you are disabled or have described yourself as a disabled person. However, an employer may have a defence against a claim of discrimination if they were genuinely unaware of your disability. 

Pre-employment health checks

The Equality Act 2010 places restrictions on the way in which prospective employers can use information about someone’s health or disability when considering them for a post. In general, prospective employers are prohibited from asking questions about someone’s health or disability prior to offering them a job. This includes questions about previous sickness absence. The Equality and Human Rights Commission has detailed guidance on this.

If you are applying for a job, prior to making a conditional offer of employment, an employer is not allowed to ask you about your health or disability except in the following circumstances:  

• enquiring whether you would need a reasonable adjustment for any interviews or assessments they intend to run to assess suitability for the role
• establishing whether or not applicants will be able to carry out tasks vital to the job
• monitoring diversity
• in order that they can take positive action, such as giving preferential treatment to disabled applicants or applicants with a particular disability.

The above questions on health should be gathered separately from the job application information. Questions about sickness absence can be asked after a candidate has been offered the job (either conditionally or unconditionally) or has been placed in a pool of successful candidates. Even in these circumstances, the purpose of any questions should be to clarify that a person’s health or disability will not prevent them doing the job and, enable the employer to consider whether there are any reasonable adjustments that can be made.

It is important that you do not assume your employer is aware of your disability because you have made occupational health aware of it. Your employer may know but, for reasons of confidentiality it is likely that occupational health will not have disclosed this, unless you have consented to them doing so.

More information on the role of occupational health can be found in our information on the health ability passport.

Employers have a duty to make reasonable adjustments to make sure workers with disabilities are not substantially disadvantaged.

When considering whether or not an adjustment is reasonable, employment law will look subjectively at the following:

• how effective the adjustment would be in improving your situation
• how practical it is to make the adjustment
• how much it would cost to make the adjustment
• how long it would take to make the adjustment
• how much disruption making the adjustment would cause.

Support for reasonable adjustments

The  employer is responsible for paying for any reasonable adjustments . The Government scheme, Access to Work, also provides support to people with disabilities to remain in work, including grants. There are also Disability Employment Advisers (DEAs) who can be accessed through Job Centre Plus who can carry out workplace assessments and, make recommendations to your employer about reasonable adjustments. If an employer is reluctant or refuses to consider involving Access to Work or implementing their recommendations, this could serve as evidence of failure to implement reasonable adjustments.

If you think you are being treated unfairly or are not being provided with appropriate reasonable adjustments, contact us for advice.

Please also see our Health Ability Passport Guidance for more information on reasonable adjustments and the role of occupational health.

An employer may, in certain circumstances, be able to justify discrimination arising from disability but this is a complex area of law. This would involve what is termed objective justification, in that it the action taken by the employer, was a proportionate way to achieve a necessary aim. For example,  if someone had been off work for a long time due to their disability, the employer may be justified in dismissing the member of staff on grounds of capability due to ill health. One reason could be if there were resource issues for the employer and this may depend on the nature of the job or the size of the employer. The employer must still follow a fair process to ensure any dismissal would not be unfair. 

RCN Peer Support service 

RCN Careers service

Access to Work

Equality and Human Rights Commission (EHRC) England

Equality Advisory and Support Service

The Disability Law Service