EMP7
DISABILITY DISCRIMINATION
General - In relation to sex/race/religion/belief etc, emphasis is on treating all people the same
- But in disability discrimination, it is the opposite A person’s individual
circumstances have to be considered and such consideration is crucial to avoid
discrimination
Who is - Applies to all employers, private and public sector, and employment agencies,
protected? vocational training providers, trade unions, professional organisations, employer
organisations, and trustees and managers of occupational pension schemes
- Applies to employees, job claimants, ex-employees, contract workers, office holders
and partners
Employment - Defined under s83 - EA 2010
Discrimination - Under the Act, direct disability discrimination is prohibited (ie persons being subject
to less favourable treatment than others because of disability) as well as indirect age
discrimination (ie the application of a provision, criterion or practice (PCP) which
disadvantages the disabled person)
- Both harassment and victimisation are also prohibited
Burden of The burden is on the claimant to show that he is a disabled person (s136)
proof
Protected S4 of EA 2010 sets out PCs:
Characteristic
- ‘Disability’ is defined in s6
- ‘Disabled person’ is defined in s6
- s6 establishes who is to be considered as having the protected characteristic of
disability and who is a disabled person for the purposes of the Act
s6 summary: A person has a disability, if he has:
• a physical or mental impairment, which has
• a substantial and
• long-term adverse effect on his ability to carry out
• normal day-to-day activities (s 6(1))
A ‘disabled person’ means a person who has a disability (s 6(2))
Impairment - Must have a physical or mental impairment (No def. available)
- 2010 Regulations confirm that if: certified blind or
severely/partially sight impaired = Deemed disabled
- Examples given include sensory impairments, organ specific
diseases such as asthma, progressive diseases such as MS, and
mental health conditions such as depression, OCD and eating
disorders
- If the condition amounts to an impairment, not necessary to
consider how it was caused / not necessary to show that a
mental impairment is a clinically well-recognised illness
Addictions to alcohol, nicotine or any other substance
A tendency to set fires / steal
NOT Tendency to physical or sexual abuse of other persons
impairments: Exhibitionism (a compulsive desire to expose one’s genital
organs publicly)
Voyeurism (obtaining sexual pleasure from the observation
of people undressing and having intercourse)
Hay fever
Obesity – Not a disability, but will be if it hinders everyday
life
- Employment tribunal must always determine the basis for the
alleged discrimination
DISABILITY DISCRIMINATION
General - In relation to sex/race/religion/belief etc, emphasis is on treating all people the same
- But in disability discrimination, it is the opposite A person’s individual
circumstances have to be considered and such consideration is crucial to avoid
discrimination
Who is - Applies to all employers, private and public sector, and employment agencies,
protected? vocational training providers, trade unions, professional organisations, employer
organisations, and trustees and managers of occupational pension schemes
- Applies to employees, job claimants, ex-employees, contract workers, office holders
and partners
Employment - Defined under s83 - EA 2010
Discrimination - Under the Act, direct disability discrimination is prohibited (ie persons being subject
to less favourable treatment than others because of disability) as well as indirect age
discrimination (ie the application of a provision, criterion or practice (PCP) which
disadvantages the disabled person)
- Both harassment and victimisation are also prohibited
Burden of The burden is on the claimant to show that he is a disabled person (s136)
proof
Protected S4 of EA 2010 sets out PCs:
Characteristic
- ‘Disability’ is defined in s6
- ‘Disabled person’ is defined in s6
- s6 establishes who is to be considered as having the protected characteristic of
disability and who is a disabled person for the purposes of the Act
s6 summary: A person has a disability, if he has:
• a physical or mental impairment, which has
• a substantial and
• long-term adverse effect on his ability to carry out
• normal day-to-day activities (s 6(1))
A ‘disabled person’ means a person who has a disability (s 6(2))
Impairment - Must have a physical or mental impairment (No def. available)
- 2010 Regulations confirm that if: certified blind or
severely/partially sight impaired = Deemed disabled
- Examples given include sensory impairments, organ specific
diseases such as asthma, progressive diseases such as MS, and
mental health conditions such as depression, OCD and eating
disorders
- If the condition amounts to an impairment, not necessary to
consider how it was caused / not necessary to show that a
mental impairment is a clinically well-recognised illness
Addictions to alcohol, nicotine or any other substance
A tendency to set fires / steal
NOT Tendency to physical or sexual abuse of other persons
impairments: Exhibitionism (a compulsive desire to expose one’s genital
organs publicly)
Voyeurism (obtaining sexual pleasure from the observation
of people undressing and having intercourse)
Hay fever
Obesity – Not a disability, but will be if it hinders everyday
life
- Employment tribunal must always determine the basis for the
alleged discrimination
