Types of disability discrimination
It's important to understand the different types of disability discrimination, so you know how to deal with it and what your rights and responsibilities are under discrimination law (Equality Act 2010).
Disability discrimination includes:
- direct or indirect discrimination
- discrimination arising from disability
- failure to make reasonable adjustments
There are different rights under discrimination law, depending on which of those is taking place.
If you need some help to understand the different types of disability discrimination, you can contact:
Direct disability discrimination is when someone is put at a disadvantage and treated less favourably because of:
- their own disability
- the disability of someone they know or have a connection with ('discrimination by association')
- a 'perceived' disability – this means thinking someone has a disability when they do not ('discrimination by perception')
Direct discrimination against someone who's disabled
This is when a disabled person is put at a disadvantage and treated less favourably because of their disability.
Discrimination by association
This is when someone is discriminated against because they either:
- know someone who's disabled
- have a connection with a disabled person or group of people
The legal term is 'discrimination by association'.
Pat volunteers at the weekends, driving a minibus that takes people with a learning disability on day trips. Pat's line manager sees Pat dropping the group members off.
At work, the manager makes inappropriate and offensive comments about Pat and the people on the trip. The manager also starts treating Pat differently in other ways. For example, they say Pat cannot come to weekly team lunches any more because they need to cover the phone, when that's always been shared between the team.
This could be discrimination by association as well as harassment.
Discrimination by perception
It's against the law to discriminate against someone because of a 'perceived' disability – this means thinking someone has a disability when they do not. The legal term is 'discrimination by perception'.
Some colleagues complain about Raja's 'unpredictable' behaviour, and spread rumours that Raja has a serious mental illness. They stop inviting Raja to social events and training.
Raja has said sorry to colleagues and explained they have been behaving differently recently because of something happening outside of work. But the apologies make no difference and Raja continues to be excluded.
This is likely to be discrimination by perception because Raja's colleagues wrongly believe Raja has a mental health condition and they're treating Raja less favourably because of it.
Indirect disability discrimination is when a working practice, policy or rule applies to everyone in a group, but it puts a disabled person or disabled people at a disadvantage.
The group could be everyone in your organisation or any other grouping of staff, for example everyone who works in a particular role or team.
- anyone who the working practice, policy or rule applies to now, for example current staff
- people who it would apply to in the future, for example anyone who applies for a job
- anyone who would be affected by something an organisation is proposing to introduce
Indirect discrimination can be less obvious than direct discrimination, and it may not always be someone's intention to discriminate.
It can apply to any working practice, policy or rule, whether it's written down or not. Some examples are:
- policies on ways of working, for example flexible working or working from home
- working hours
- the way employees are selected for redundancy
For someone to experience indirect disability discrimination, all of the following must apply:
- The working practice, policy or rule must be the same for everyone within a relevant group of staff or job applicants.
- It would put other staff or job applicants with 'the same protected characteristic' at a disadvantage, compared to people who do not have that characteristic.
- The disabled person is personally put at a disadvantage.
- It's a course of action the employer cannot justify if legally challenged.
'The same protected characteristic' does not mean disabled people as a whole. It means people with a particular disability, for example people with an equivalent level of visual impairment. It does not matter if there's nobody else at work with the same disability – it's whether anyone with that particular disability would be put at a disadvantage.
Jay has type 1 diabetes and works in a factory. The rest break policy says everyone has a lunch break at the same time, with no other breaks during the shift. Jay sometimes needs snacks between meals to help manage their diabetes.
If Jay's employer does not make a 'reasonable adjustment' for Jay, for example more evenly distributing Jay's break times across the day, this is likely to be indirect discrimination.
It does not matter that nobody else with type 1 diabetes works in the factory. It could still be indirect discrimination if the policy would disadvantage anyone who's affected in the same way as Jay by type 1 diabetes.
When a decision based on disability might not be discrimination
In some cases, it may not be against the law to make a decision based on someone's disability. This can be complex and an employer may want to get legal advice.
Find out more about:
- 'positive action' – for example to help a disadvantaged or under-represented group
- 'objective justification' – when the employer can prove there's a good business reason, which cannot just be because it's cheaper
- 'occupational requirement' – when someone's disability is essential for the job
Discrimination arising from disability
'Discrimination arising from disability' is a legal term. It means when someone is treated badly (the law says 'unfavourably') or put at a disadvantage, not because of their disability itself, but because of something that's a result of their disability.
Examples could include:
- absence from work because of regular hospital appointments
- problems with speech or movement
- difficulties with reading or writing
- needing regular rest breaks or toilet breaks
- needing an assistance dog
For this type of discrimination, the person does not have to compare how they're treated to how someone else is treated for the law to apply.
It does not apply if the person or organisation treating the person unfavourably did not know, and could not reasonably have been expected to know, about the disability.
Mae has cancer and is having chemotherapy. The time off Mae takes for the chemotherapy appointments and recovery leads to their manager following the company's procedure for too much absence and Mae gets a warning. Because of the warning, Mae is not able to apply for promotion.
This could be discrimination arising from disability. The company could have made a reasonable adjustment to make sure this did not happen, for example recording these absences differently from standard absences.
Failure to make reasonable adjustments
When an employer knows, or could reasonably be expected to know, that a job applicant or employee has a disability, they must:
- consider if they need to make reasonable adjustments
- make the adjustments as soon as they can, if the changes are reasonable
Otherwise it could be 'failure to make reasonable adjustments' under discrimination law.
Harassment is when someone experiences bullying or unwanted behaviour related to a disability or another protected characteristic (age, gender reassignment, race, religion or belief, sex, sexual orientation).
To be harassment, the unwanted behaviour must have either:
- violated the person's dignity, whether it was intended or not
- created an intimidating, hostile, degrading, humiliating or offensive environment for the person, whether it was intended or not
Andi hears a group of colleagues making offensive comments about someone at work who has a learning disability. Andi has also seen them getting the person in trouble by persuading them to do something wrong. Andi is intimidated and offended by this.
This behaviour is not aimed at Andi. But Andi could still make a complaint of harassment related to disability if it's created a hostile environment for them at work.
Victimisation is when someone is treated differently or less favourably as a result of being involved in some way with a discrimination or harassment complaint. The law also protects someone from victimisation when someone else thinks they're involved with a complaint.
Someone could be victimised because:
- they made a complaint about disability discrimination or harassment
- they're gathering information that might lead to making a complaint
- they supported someone else's complaint
- they said something or gave evidence that did not support someone else's complaint
- someone else thinks the person has done any of the things above or is considering them
Ways someone could be victimised include being labelled a troublemaker, being left out, or not allowed to do something.
Ali made a formal complaint at work because their manager had not made the reasonable adjustments that had been agreed. Ali had previously talked to their manager about it and then followed the company's grievance procedure when their requests and concerns were ignored.
Since then, Ali's manager has become increasingly critical of Ali, picking on them in front of other staff. They've also stopped Ali from applying for any promotions. Ali believes this is happening because of the formal complaint. This is likely to be victimisation.