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 that was rendered largely ineffective by a decision of the House of Lords in 2008.
Discrimination arising from disability is when someone is treated unfavourably because of something arising in consequence of disability rather than the disability itself. This is what makes it different to direct discrimination.
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 license 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 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 to discriminate. But costs can be taken into account as part of the justification if they can show there are other good enough reasons for the treatment.