July 19, 2020

discrimination in the workplace

Disability discrimination is when an employee is not treated as an equal or is treated unfairly becuase of their disability. This includes putting a disabled employee at a disadvantage because of their disability.

The wide scope of ‘disability’ covered under the Equality Act 2010 

A disability discrimination case can be brought by existing employees, job applicants, workers employed on a contract personally to do work, apprentices and contract workers, eg many agency workers or those working for contracted- out services. There is no minimum qualifying service or hours required for a worker to make a claim. 

The Equality Act does not simply protect a small number of people with visible disabilities. It can protect large numbers of people with invisible as well as obvious and visible disabilities. It may also protect those with temporary, but long-term, injuries or ill-health, who would not normally think of themselves or be considered by others as having a disability. 

Disability discrimination under the Equality Act 2010

There are several different forms of disability discrimination under the Equality Act. 

The following is only a list of issues covered under the act.

  • Failure to make reasonable adjustments
  • Direct discrimination
  • Direct discrimination by association
  • Direct discrimination due to perceived disability
  • Discrimination arising from disability
  • Harassment
  • Indirect discrimination
  • Victimisation
  • Pre-employment disability or health enquiries

Who is “disabled” under the Equality Act 2010?

To gain the protection of the Equality Act, a worker must prove s/he meets the legal definition of disability in the Act. 

The legal definition: overview

Section 6(1) of the EqA says: 

"A person (P) 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.” 

Each element of this definition should be separately considered in the following stages:

  1. Is there a physical or mental impairment? 

  2. Does the impairment have an effect on the worker’s ability to carry out normal day-to-day activities? Is the effect substantial? 

  3. Is the substantial effect long-term? 


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The wide scope of ‘disability’ covered under the Equality Act 2010 

Check list on proving the worker has a disability.

  • Identify the physical or mental impairment.
  • Is the condition deemed a disability, eg certified visual impairment, HIV 
infection, multiple sclerosis, cancer?
  • Is it an excluded condition, eg hay fever?
  • Which of the day-to-day activities are affected?
  • Is the effect substantial? This only means more than minor or trivial.
  • If the effect is minor, is it likely to become substantial in the future? ‘Likely’ means ‘it could well happen’.
  • Is it a condition which is deemed to have substantial adverse effect, ie severe disfigurement?
  • When considering the adverse effect, focus on what the worker cannot do or can only do with difficulty or tiredness, as opposed to what s/he can do.
  • Consider the effect on normal activities, not highly-specialised hobbies; Include both work and non-work activities. 

  • If necessary, consider the deemed effect without any medication or aid.
  • Is the substantial adverse effect long-term (12 months) or recurrent?
  • Consider what medical evidence is necessary, eg to prove

    the nature of the impairment

    the nature and seriousness of the effects

    when the effects started and how long they are likely to last 

    the deemed effect without medication or aids.

  • Consider the cost of medical evidence and whether to instruct an expert jointly with the employers.
  • Consider the appropriate medical expert: GP, treating consultant, independent consultant

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