60 second guide: to disability discrimination

Section 6 defines disability as "a physical or mental impairment which has a substantial and long term adverse effect on the person's ability to carry out normal day-to-day activities." The impairment should have lasted, or be likely to last, for more than 12 months and it is the ordinary daily activities of the employee which should be measured when looking at whether the impairment is substantial enough, and not the job they are doing. There are four main ways to discriminate against an employee; direct discrimination (because they are disabled), indirect discrimination (by applying a requirement for the job that they may not be able to comply with), by victimising them because they have made a complaint about their treatment because of their disability, or by harassing them (subjecting them to unwanted conduct which has the purpose or effect of violating the person's dignity or creating a hostile, degrading, humiliating or offensive environment). There are also two further types of discrimination specific to disabled people; failing to make reasonable adjustments and subjecting a person to discrimination arising from their disability. Certain conditions are deemed to be disabilities and the extent of the condition is not tested on the definition above. These are cancer, HIV infection and multiple sclerosis. In some cases, it can be fair to dismiss an employee, but the dismissal can still give rise to a disability discrimination claim. One of the most common areas where disability discrimination can arise is where the employer has failed to make reasonable adjustments in the workplace. This can be an adjustment to the scope of the role or the way in which the disabled employee performs it and, in certain circumstances where reasonable, it can even include redeployment into another role, provided a role exists which the disabled employee can perform. Consideration can be given to adaptations to the premises and the cost cannot in itself justify non-implementation; it is the reasonableness and proportionality of the adaptation that would be considered by any tribunal. Such claims can be lodged while the employee remains in employment. If the employee is then dismissed or treated detrimentally because of their complaint or tribunal claim then the employer is also at risk of a claim for victimisation. It is always wise to seek professional advice before addressing any issue with the employee directly.