Disability discrimination 

On this page

• Direct discrimination
  
• Failure to make reasonable adjustments
  
• Disability-related discrimination
  
• Victimisation
  
• When is discrimination justified?
  
• Harassment
  

 

Direct discrimination

This occurs when:

• a disabled person is treated less favourably than someone else, who has similar circumstances and abilities
• the treatment is for a reason relating to the persons's disability.

Example
A blind woman is not short-listed for a job involving computers because the employer wrongly assumes that blind people can not use them. The employer makes no attempt to look at the individuals circumstances. The employer has treated the woman less favourably than the other people by not short-listing her for the job. The treatment was on the ground of the woman's disability (because such assumptions would not have been made about a non-disabled person) and is likely to be direct discrimination.

If another person, without the particular disability, would have been treated the same way as the person with the disability, then direct discrimination is unlikely to have occured.

There is no justification for direct discrimination.

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Failure to make reasonable adjustments

An employer, education provider or service provider has a duty to make reasonable adjustments where a provision, criterion or practice, or any physical feature of premises occupied by them, places a disabled person at a substantial disadvantage compared with people who are not disabled. They must take reasonable steps to prevent that disadvantage. It isn’t possible for them to justify not making adjustments that are reasonable.

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Disability-related discrimination

This form of discrimination refers to treatment of a disabled person that:

• is unlawful because it is for a reason related to a disability;
• is less favourable than the way in which others, to whom that reason doesn’t apply, are treated
• the employer cannot show that the treatment is justified.

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Victimisation

Victimisation is outlawed by the DDA. It says that a person should not be treated less favourably because they have done, or are likely to do, one of the following:

• brought legal action under the DDA (eg at an employment tribunal, or other body), or given evidence in such an action
• done anything else relating to such an action, such as supporting the person taking the action
• alleged that someone has breached the DDA.

Even if someone drops a case, no one can be given lesser treatment as a result.

If a person has made a false allegation knowing it to be untrue, then it is not illegal to treat them less favourably.

It is only in relation to victimisation that someone who is not disabled is covered by the DDA – for example if they give evidence at a hearing, or if they support someone in taking an action.

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When is discrimination justified?

There are a few situations where discrimination can be justified under the DDA. This is because justification is only possible in cases involving less favourable treatment for a disability-related reason. Justification is not possible in cases of direct discrimination, failure to make reasonable adjustments or victimisation.

However, it is important to note that reasonable adjustments have to be taken into account when considering whether less favourable treatment for a reason related to disability can be justified. If a reasonable adjustment would have made a difference, then the less favourable treatment will not be justifiable and will be unlawful.

If a reasonable adjustment is not possible, or would not make a difference to the outcome, then less favourable treatment for a reason related to disability can be justified, if the reason for the treatment was material and substantial.

‘Material’ means that there must be a reasonably strong connection between the reason given for the treatment and the circumstances of the particular case.

‘Substantial’ means that the reason must carry real weight and be of substance.

Example
A man who has severe back pain and is unable to bend is rejected for a job as a carpet fitter as he cannot carry out the essential requirement of the job, which is to fit carpets. This would be lawful as the reason he is rejected is a substantial one and is clearly material to the circumstances.

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Harassment

In addition to the four forms of discrimination in the DDA, it is also unlawful to harass a disabled person.

Harassment occurs where, for a reason which relates to a person’s disability, another person engages in unwanted conduct that has the purpose or effect of:

• violating the disabled person’s dignity
• creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her.

If the intention of the conduct is to create either of these effects, then harassment has occurred. If an action is not intended to harass, then it will only be considered harassment if the action is reasonably likely to produce the effects mentioned above. The perception of the disabled person should be taken into account when deciding whether harassment has taken place.

Employers’ approaches to harassment
It is unlawful for your employer to harass you for a reason related to your disability. Many organisations have internal anti-harassment policies. If yours has one of these policies, this would be your first way of dealing with harassment at work. If your organisation does not have a policy or its procedures do not deal with the situation very well, then you have the right to take your case further.

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