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Discrimination Against People With Disabilities

If you are a disabled person or an employer with disabled employees, you must be aware of your rights.


What constitutes disability?

A person is considered disabled if they:

  • They are suffering from a mental or physical impairment or condition;

  • The impairment/disease has a significant and long-lasting adverse effect; and

  • It impairs the individual’s ability to perform routine daily activities.

  • Impairments are evaluated without regard for the effect of medication. It is possible that medication enables a person to function normally. Disability is determined by what would occur if the medication was not taken.

  • A significant effect is one that is “more than minor or trivial.” The emphasis is not on what an individual can accomplish. It will focus on what an individual is unable to do or can only do with difficulty.

  • Daily activities such as watching television, using the phone, shopping, getting washed and dressed, cooking, walking, and participating in social activities are all considered normal. It excludes specialized activities and abilities, such as playing a sport to a high level.

  • The term “long term” refers to an impairment or condition that is likely to last for 12 months or the remainder of the person’s life.

  • Certain conditions, such as HIV, Multiple Sclerosis, and Cancer, are considered automatic disabilities. Blindness and vision impairments can also be considered disabilities.

Certain conditions are not considered disabilities. Examples include alcoholism, a proclivity for setting fires, stealing, or abusing others.


What types of discrimination are there against disabled people?

If an individual is disabled, they cannot be subjected to any of the following:

  • Discrimination on an explicit basis;

  • Discrimination in an indirect manner;

  • Discrimination on the basis of disability;

  • Inability to make reasonable accommodations;

  • Harassment.


What must an employer refrain from doing?

Employers must not make discriminatory decisions about who to hire, what terms to offer, or whether to offer employment at all.

Once an employee is hired, they must not discriminate in how they provide opportunities for advancement, training, or any other benefit or service. Additionally, they must refrain from dismissing or penalizing employees on the basis of their disability.

Additionally, an employer must ensure that they do not victimize an employee for raising concerns about their disability.


What is the definition of direct discrimination?

Employers are not permitted to treat a person less favorably on the basis of their disability. If they do so, they are engaging in direct discrimination.

A comparator is required to demonstrate less favorable treatment. This is a person who does not have the aforementioned disability and is treated more favorably in the same or comparable circumstances.

A difference in treatment from someone without the disability is insufficient to establish direct discrimination. The individual must demonstrate that they were treated less favorably as a result of their disability.

If the disabled person establishes discrimination, the employer must demonstrate that the treatment was not motivated by the disabled person’s disability.

Treating a disabled person more favorably than a non-disabled person is not direct discrimination.

However, it is illegal to treat someone less favorably because of their association with a disabled person or because they are perceived to be disabled.


What is referred to as indirect discrimination?

Employers commit indirect discrimination when they:

Adopts a provision, criterion, or practice (‘PCP’) that is discriminatory toward the disabled person;

The PCP disadvantages people who share a disability disproportionately to those who do not;

That disadvantage is or would be imposed on the disabled person; and

Employers are unable to demonstrate that this treatment is a proportionate means of accomplishing a legitimate objective.

A PCP is a provision, criterion, or practice. What constitutes a PCP is not defined. It can encompass formal as well as informal practices. A PCP is an example of a requirement to work long hours.

Indirect discrimination requires both group disadvantage and disadvantage to the disabled person. This implies that there must be additional individuals with the same disability who are also disadvantaged.

A claim for indirect discrimination does not require knowledge of the individual’s disability.

If an individual can demonstrate that a PCP results in individual and group disadvantage as a result of disability, the employer must demonstrate that the treatment is a proportionate means of achieving a legitimate objective in order to defend the claim. The term “objective justification” is frequently used to refer to this defense.

For an objective to be considered legitimate, the employer must have a legitimate business need. A legitimate objective is ensuring health and safety.

To establish that an employer’s actions were proportionate, the employer must demonstrate that the actions taken were reasonably necessary to accomplish the legitimate goal. To resolve this issue, tribunals will need to weigh the employer’s actions and business needs against the effect of the discriminatory treatment on the disabled person.


What is disability-related discrimination?

Discrimination based on disability occurs when a person treats a disabled person unfavorably as a result of the disabled person’s disability.

A Tribunal will determine whether the disability caused or resulted in “something” and then determine whether the employer treated the employee unfavorably as a result of that “something.”

For instance, if a person has cancer and was seeking treatment, the absences would be attributed to the cancer (a deemed disability). The “something” in this case is the absences. If the employer then dismisses the employee for those absences, the dismissal constitutes the unfavorable treatment.

Because this type of claim does not require a comparator, it is frequently easier for a disabled person to make a claim under this heading rather than alleging direct discrimination.

Employers have two defenses to this type of claim:

  • The employer was unaware of the disabled person’s disability and could not reasonably have been expected to know;

  • If the employer was aware of the employee’s disability, the treatment was a reasonable means of accomplishing a legitimate goal.

Even if an employee does not disclose their disability, an employer should consider whether this is a potential issue. For instance, if a member of staff is frequently absent, management should consider whether there are underlying medical issues. Employers should consider referring an employee to their occupational health provider if they suspect an employee may have a disability.


When is it necessary to make reasonable accommodations?

The duty to make reasonable accommodations arises in the following circumstances:

If an employer operates a provision, criterion, or practice (‘PCP’); that results in a substantial disadvantage for a disabled person in comparison to non-disabled people; and if this criteria is met, the employer is required to make reasonable adjustments to avoid the substantial disadvantage.

There is a physical feature that significantly disadvantages disabled people in comparison to non-disabled people; in this case, the employer must modify, remove, or provide a reasonable means of avoiding the physical feature. A physical feature could be related to the design or construction of a structure, or to the employer’s office furnishings. For instance, building entrances/exits, restrooms, and parking lots are all examples.

There is one auxiliary aid that would significantly disadvantage disabled people compared to non-disabled people: the employer would be required to provide the auxiliary aid required. An auxiliary aid is an item which will assist a disabled person. For instance, voice recognition software or an adapted chair are frequently used examples.

The duty to make reasonable adjustments will only arise if the employer knows or could reasonably know that a person is disabled. Not only does the obligation apply to employment, but it also includes making necessary adjustments to the job application process.

A disabled person is not required to suggest modifications that should be made for their benefit. If they do, an employer must determine whether they are reasonable and whether they mitigate the significant disadvantage caused by the disability in question.

It’s critical to keep in mind that the adjustment must be reasonable. Not every adjustment that could be made is necessarily reasonable, and its reasonableness will depend on the facts of the case. Additionally, if the adjustment does not actually alleviate the substantial disadvantage, it is not reasonable.

When determining whether an adjustment is reasonable, a Tribunal will consider the employer’s actions. They will also consider the adjustment’s practicality and cost. The employer’s size and resources will also be significant. The larger the employer and the lower the adjustment cost, the more likely the adjustment will be reasonable.

Access to Work can assist employers in completing the steps necessary to hire a disabled employee and may also provide financial assistance.

Family members are not subject to the duty to make reasonable accommodations. For instance, if a person has caring responsibilities for a disabled parent and requires time off to fulfill those responsibilities, it is not a reasonable adjustment for an employer to alter the working pattern of the non-disabled employee. If an employee wishes to change their hours in that situation, they should consider submitting a request for flexible working hours.