Disability discrimination at work

What disability means

The Equality Act 2010 sets out when someone is considered to have a disability and is protected from disability discrimination.

What's automatically classed as a disability

People with these conditions and impairments are automatically protected under disability discrimination law as soon as they're diagnosed:

  • cancer
  • an HIV infection
  • multiple sclerosis (MS)
  • a visual impairment – if someone is certified as blind, severely sight impaired, sight impaired or partially sighted

Progressive conditions

A progressive condition gets worse over time. Examples include Alzheimer's disease, motor neurone disease, muscular dystrophy and Parkinson's.

Someone with a progressive condition is considered by law to have a disability as soon as it starts to have an effect on their normal day-to-day activities, as long as this is likely to be long-term. The law says the effect does not have to be substantial as long as it's likely to become substantial in the future.

The main definition of disability

Unless their condition or impairment is automatically classed as a disability or they have a progressive condition, the Equality Act 2010 says someone is considered to have a disability if both of these apply:

  • they have a 'physical or mental impairment'
  • the impairment 'has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities'

What these terms mean

Someone has an 'impairment' if any of their physical or mental abilities are reduced in some way. It could be because of an illness or medical condition but it does not have to be.

A 'substantial adverse effect' means more than just a minor impact on someone's life or how they can do certain things. This may fluctuate or change and may not happen all the time.

'Long-term' means either:

  • it will affect them or is likely to affect them for at least a year
  • it's likely to last for the rest of their life

It can still be considered long-term if the effects are likely to come and go. For example, someone might have a fluctuating condition that affects them for a few months at a time with other times when they're not affected.

'Normal day-to-day activities' could include things like:

  • communicating with other people
  • driving
  • following instructions
  • lifting and carrying everyday objects
  • sitting down or standing up
  • using a computer
  • writing

For more detailed guidance on the definition of disability, see Equality Act 2010 guidance on GOV.UK.

Considering whether someone has a disability

In most situations, it's best to look at how someone's condition or impairment affects them, rather than what the condition or impairment is. It's important for the employer and the person with the condition or impairment to talk to each other. Do not make any assumptions.

For someone to be classed as having a disability, it does not matter:

  • whether the impairment is physical or mental
  • what caused the impairment
  • if the impairment does not affect them all the time or it changes at different times
  • if they have not had a medical diagnosis – as long as they can still show a substantial and long-term adverse effect on their ability to carry out day-to-day activities

The law says to discount the effects of any medication, aids or treatment when considering whether someone has a disability. The exception to this is wearing glasses or contact lenses.

If an employer does not agree someone has a disability

If an employer feels that someone's condition or impairment does not meet the definition of a disability, they should:

  • not make assumptions
  • listen to the person when they talk about the effect it has on their normal day-to-day activities – this may include what would happen if they stopped any medication or treatment
  • consider any medical advice, for example an occupational health report or a medical report from the staff member's doctor – employers must get permission from the staff member to access these
  • focus on supporting the person – this could include making reasonable adjustments

Examples of when someone might have a disability

Example 1

Chris and Sasha both have asthma.

Chris has had severe asthma for a few years. It has a significant impact on their day-to-day activities. It's likely that Chris has a disability.

Sasha's asthma is mild and it does not affect how they carry out day-to-day activities. It's likely that Sasha does not have a disability.

Example 2

Val has breathing difficulties that affect their energy, sleep and ability to move around. Each of those things on their own does not have a substantial adverse effect for Val. But considered together, they significantly affect Val's ability to carry out day-to-day tasks. It's likely that Val has a disability.

Example 3

Eli has prostate cancer. The cancer is at an early stage and it is not having any effect on day-to-day activities. Eli is still protected by discrimination law because cancer is automatically classed as a disability under the Equality Act 2010.

Example 4

Ari has been struggling with day-to-day tasks since a close friend died a year ago. They are often not able to do things like getting dressed, cooking and talking to people. 

Ari has not been diagnosed with a medical condition like depression but they are showing signs of having a mental impairment. This could mean that Ari has a disability if they can show it's having a long-term and substantial adverse effect on their ability to carry out day-to-day activities.

This is an example of where an employer might reasonably be expected to recognise that Ari is likely to have a disability.

Other conditions or impairments

It's not possible to give an exhaustive list of all conditions or impairments that might be classed as a disability. In most situations, it's best to look at how someone's condition or impairment affects them, rather than what the condition or impairment is.

But these are some examples people often ask about.

Disfigurement

Severe disfigurement will usually be considered by law to have a substantial adverse effect on someone's ability to carry out normal day-to-day activities. This means that severe disfigurement is usually considered to be a disability.

The law says that there is no need for someone with a severe disfigurement to show the effect their disfigurement has on them.

Other less severe disfigurements to someone's face or body may not have a substantial effect on someone's day-to-day activities so may not be considered a disability.

Long COVID

Long COVID is still a new illness and it may take time to understand it fully. It can affect a person's day-to-day activities and it's currently understood that it can last or come and go for several months. The effects of long COVID could also cause other impairments.

Find out more about whether long COVID is treated as a disability

Menopause

For some people, the menopause can cause severe physical or mental health symptoms that have a long-term and substantial adverse effect on carrying out normal day-to-day activities.

For example, someone could experience severe depression over a number of years because of the menopause and this could affect their ability to work. This could be considered a disability under discrimination law.

Find out more about the menopause and work

Neurodiversity including ADHD, autism, dyslexia and dyspraxia

Attention deficit hyperactivity disorder (ADHD), autism, dyslexia and dyspraxia are forms of neurodivergence – there are others too.

Being neurodivergent will usually amount to a disability under the Equality Act 2010, even if the person does not consider themselves to be disabled.

Find out more about neurodiversity at work

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