Employment law – Disability
Discrimination
Step 1: Identify the protected characteristic
Disability is a protected characteristic under s 4
If employer undertakes an unlawful act which amounts to prohibited conduct, they may be liable for disability
discrimination
What amounts to a disability?
S 6 a person has a disability if –
a) P has a physical or mental impairment, and
b) The impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-
day activities
In determining whether the protected characteristic exists consider whether:
P has a physical or mental impairment and this is a question of fact rather than a specific exclusion e.g. alcohol
addiction – paras 3 and of the Regulations
The impairment is substantial – ‘more than trivial or minor’ s 212(1)
The impairment is long-term – it has lasted for at least 12 months, is likely to last for at least 12 months or the
rest of their life – Schedule 1 para 2 (1)
This has an effect on P’s ability to carry out normal day-to-day activities e.g. get out of bed, get dressed,
cook, emphasis on what they cannot do – Goodwin v Patent Office
Cancer, HIV and multiple sclerosis are specifically defined as a disability – Schedule 1, para 6(1)
If person is certified as blind, severely sight impaired, sight impaired or partially sighted by a consultant
ophthalmologist – also disabled – para 7, the Regulations
Step 2: Identify the unlawful act
Main unlawful acts are set out in s 39
1) An employer (A) must not discriminate against a person (B)
a. In the arrangements A makes for deciding to whom to offer employment
b. As to the terms on which A offers B employment
c. By not offering B employment
2) An employer (A) must not discriminate against an employee of A’s (B)
a. As to B’s terms of employment
b. In the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or
training or for receiving any other benefit, facility or service
c. By dismissing B
d. By subjecting B to any other detriment
3) An employer (A) must not victimise a person (B)
a. In the arrangements A makes for deciding whom to offer employment
b. As to terms on which A offers B employment
c. By not offering B employment
4) An employer (A) must not victimise an employee of A’s (B)
a. As to B’s terms of employment
, b. In the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or
training or for receiving any other benefit, facility or service
c. By dismissing B
d. By subjecting B to any other detriment
Failure to make reasonable adjustments – s 20
S 20 – additional unlawful act specific to disability discrimination
Duty to make reasonable adjustments arises in two main situations
1. Where provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to
a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to
have to take to avoid the disadvantage – s 20(3)
2. Where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant
matter in comparison with persons who are not disabled, to take such steps as is reasonable to have to take to
avoid the disadvantage – s 20(4)
Factors to consider when determining whether adjustments are reasonable
Effectiveness of adjustment in rectifying the disadvantage
Practicability of the adjustment
Cost
Extent of the respondent’s financial resources
Step 3: Identify the prohibited conduct
Direct Discrimination – s 13
A person (A) discriminates against another (B) if because of a protected characteristic A treats B less favourably than A
treats or would treat others
S 136 - Claimant must show:
he/she has suffered less favourable treatment
compared to a man/woman who is not materially different to the claimant other than being a man/woman – s
23(1)
If prima facie case is established – burden of proof shifts to employer. No defence to direct discrimination. Only escape
is the occupational requirement exception – Schedule 9 para 1
1) a person (A) does not contravene a provision mentioned in sub-paragraph (2) by applying in relation to work
a requirement to have a particular protected characteristic, if A shows that, having regard to the nature of
context of the work –
a. it is an occupational requirement
b. the application of the requirement is a proportionate means of achieving a legitimate aim and
c. the person to whom A applies the requirement does not meet it
Employer must show that being a man/woman is crucial to the position in question and the requirement is the least
restrictive way of achieving a legitimate aim
Indirect Discrimination – s 19
A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory
in relation to a relevant protected characteristic of B’s.
Provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if –
a) A applies, or would apply, it to persons with whom B does not share the characteristic
Discrimination
Step 1: Identify the protected characteristic
Disability is a protected characteristic under s 4
If employer undertakes an unlawful act which amounts to prohibited conduct, they may be liable for disability
discrimination
What amounts to a disability?
S 6 a person has a disability if –
a) P has a physical or mental impairment, and
b) The impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-
day activities
In determining whether the protected characteristic exists consider whether:
P has a physical or mental impairment and this is a question of fact rather than a specific exclusion e.g. alcohol
addiction – paras 3 and of the Regulations
The impairment is substantial – ‘more than trivial or minor’ s 212(1)
The impairment is long-term – it has lasted for at least 12 months, is likely to last for at least 12 months or the
rest of their life – Schedule 1 para 2 (1)
This has an effect on P’s ability to carry out normal day-to-day activities e.g. get out of bed, get dressed,
cook, emphasis on what they cannot do – Goodwin v Patent Office
Cancer, HIV and multiple sclerosis are specifically defined as a disability – Schedule 1, para 6(1)
If person is certified as blind, severely sight impaired, sight impaired or partially sighted by a consultant
ophthalmologist – also disabled – para 7, the Regulations
Step 2: Identify the unlawful act
Main unlawful acts are set out in s 39
1) An employer (A) must not discriminate against a person (B)
a. In the arrangements A makes for deciding to whom to offer employment
b. As to the terms on which A offers B employment
c. By not offering B employment
2) An employer (A) must not discriminate against an employee of A’s (B)
a. As to B’s terms of employment
b. In the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or
training or for receiving any other benefit, facility or service
c. By dismissing B
d. By subjecting B to any other detriment
3) An employer (A) must not victimise a person (B)
a. In the arrangements A makes for deciding whom to offer employment
b. As to terms on which A offers B employment
c. By not offering B employment
4) An employer (A) must not victimise an employee of A’s (B)
a. As to B’s terms of employment
, b. In the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or
training or for receiving any other benefit, facility or service
c. By dismissing B
d. By subjecting B to any other detriment
Failure to make reasonable adjustments – s 20
S 20 – additional unlawful act specific to disability discrimination
Duty to make reasonable adjustments arises in two main situations
1. Where provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to
a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to
have to take to avoid the disadvantage – s 20(3)
2. Where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant
matter in comparison with persons who are not disabled, to take such steps as is reasonable to have to take to
avoid the disadvantage – s 20(4)
Factors to consider when determining whether adjustments are reasonable
Effectiveness of adjustment in rectifying the disadvantage
Practicability of the adjustment
Cost
Extent of the respondent’s financial resources
Step 3: Identify the prohibited conduct
Direct Discrimination – s 13
A person (A) discriminates against another (B) if because of a protected characteristic A treats B less favourably than A
treats or would treat others
S 136 - Claimant must show:
he/she has suffered less favourable treatment
compared to a man/woman who is not materially different to the claimant other than being a man/woman – s
23(1)
If prima facie case is established – burden of proof shifts to employer. No defence to direct discrimination. Only escape
is the occupational requirement exception – Schedule 9 para 1
1) a person (A) does not contravene a provision mentioned in sub-paragraph (2) by applying in relation to work
a requirement to have a particular protected characteristic, if A shows that, having regard to the nature of
context of the work –
a. it is an occupational requirement
b. the application of the requirement is a proportionate means of achieving a legitimate aim and
c. the person to whom A applies the requirement does not meet it
Employer must show that being a man/woman is crucial to the position in question and the requirement is the least
restrictive way of achieving a legitimate aim
Indirect Discrimination – s 19
A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory
in relation to a relevant protected characteristic of B’s.
Provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if –
a) A applies, or would apply, it to persons with whom B does not share the characteristic
