Discrimination Arising From Disability

Discrimination arising from disability is a type of discrimination introduced in the Equality Act 2010. It “replaced” disability-related discrimination, which had been part of the Disability Discrimination Act, which was rendered largely ineffective by a decision of the House of Lords in 2008.

What is discrimination arising from disability?

Discrimination arising from disability occurs when someone is treated unfavourably because of something arising as a consequence of disability rather than the disability itself. This is what distinguishes it from direct discrimination.

Examples of discrimination arising from disability

• The need for regular rest breaks or toilet breaks
• A restricted diet
• Difficulties in using public transport
• The need for regular hospital appointments
• The need for specialist computer equipment
• The need for a quiet working environment
• The need for an assistance dog
• Behavioural issues
• Speech or movement difficulties.

With this form of discrimination, there is no need to compare the treatment with someone else, but it cannot occur unless you, as the employer, knew (or should have known) that your employee was disabled.

However, this is not a licence for you to ignore issues. The Equality and Human Rights Commission Guidance states that “an employer must do all they can reasonably be expected to do to find out if a worker has a disability”.

Another important aspect is that discrimination arising from disability can be justified if the treatment is a proportionate means of achieving a legitimate aim. A legitimate aim is the reason behind the discrimination.

This reason must not be discriminatory in itself and it must be a genuine or real reason.

Examples of legitimate aims are:

• The health, safety and welfare of individuals
• Running an efficient service
• Requirements of a business or a desire to make a profit

Proportionate means that the discrimination must be fairly balanced against the disadvantage suffered because of the discrimination. This means it must be appropriate and necessary. If there are better and less discriminatory ways of doing things, it will be more difficult to justify discrimination. Economic reasons alone are not enough.

You cannot justify discrimination by saying it is cheaper. However, costs can be considered as part of the justification if you can show there are other good enough reasons for the treatment.

To find out how we can help you, contact our employment disability discrimination solicitors for employers today on 01273 609911, or email info@ms-solicitors.co.uk.