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Disability and Mental Health

A complex area

In discrimination law, a disability is quite widely defined. A disability is “a physical or mental condition which has a long-term and substantial effect on someone’s day to day life”. In order to consider whether an employee is disabled, the individual’s personal circumstances must be considered.

A disability could be a physical condition or illness, but it could also be a mental health condition, such as depression, or an “invisible” disability such as a learning disability. Some conditions are automatically treated as a disability by the law, such as cancer or diabetes.

Employees (or job applicants and prospective employees) must not be treated differently, unfairly or less favourably because of their disability. The law provides protection from:

  • Direct discrimination (being treated less favourably because of their disability).
  • Indirect discrimination (being at a disadvantage because of a seemingly neutral provision, criterion or practice (PCP)). This could include, for example, the requirement that all employees must have driving licence. Whilst this is on the face of it neutral, it is likely to discriminate against those who are visually impaired.  When a driving licence is not necessary for the role, this requirement would be indirectly discriminatory.
  • Victimisation (being subjected to a detriment because of a complaint about discrimination or assisting a victim of discrimination i.e. by being a witness for them or a ‘companion’ at meetings).
  • Harassment, including sexual harassment (being subjected to unwanted conduct related to their disability, which violates dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment).

Employers have a duty to make reasonable adjustments to the workplace or an individual’s duties or working regime if an individual would be placed at a disadvantage because of their disability. Obvious examples of this are making physical adjustments to the workplace, but the duty could also include making reasonable changes to shift patterns, hours or even amendments to the organisation’s sickness policy, or allowing the employee to take more breaks throughout the day. It depends entirely on the disability and the needs of the individual.

As well discriminating, directly or indirectly because of the disability itself, employers must
be mindful of not treating someone unfairly because of consequences or symptoms that arise from their disability. This includes, for example, the side effects of medication taken in order to reduce the effects of disability. If employee is treated unfairly because of this, it could well be unlawful. Another example would be an employee with cancer being deprived of a bonus because of time off to receive treatment.

Some forms of discrimination can never be justified for example direct discrimination (refusing to recruit a disabled candidate), and are always unlawful. However, other forms of discrimination are not unlawful because of an employer’s ability to justify why the discrimination is needed. For example there is a real business need for a policy (PCP) which indirectly discriminates. For there to be justification an employer must show that the PCP is a proportionate means of achieving a legitimate aim (a real business need). Justification in this way only applies to indirect discrimination and discrimination arising from a disability. The tests for whether treatment is objectively justified are slightly different for each form of discrimination, so it is important to take advice on the specific circumstances. By way of illustration, going back to the above example of the driving licence requirement, if the role is for a delivery driver, then that provision might be indirectly discriminatory – but it could be justified!

It is also unlawful to subject someone to harassment related to disability, or to victimise them because they have made or intend to make a disability discrimination complaint. For more information on the forms of discrimination, please visit our Inclusion and Diversity section.

 

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