Disability discrimination

What is a disability?

You have to show that your mental health problem is a disability to get the protection of the Equality Act.

‘Disability’ has a special legal meaning under the Equality Act, which is broader than the usual way you might understand the word. Even if you don’t think you have a disability, the Equality Act may protect you from discrimination if your mental health problem fits its definition of disability.

The Equality Act says you have a disability if you have a physical or mental impairment that has a substantial, adverse, and long-term effect on your ability to carry out normal day-to-day activities.

The focus is on the effect of your mental health problem, rather than the diagnosis. So you need to show that your mental health problem:

  • has more than a small effect on your everyday life
  • makes things more difficult for you, and
  • has lasted at least 12 months, is likely to last 12 months, or (if your mental health problem has improved) that it is likely to recur.

Examples of ‘substantial adverse effect’

Simon has obsessive-compulsive disorder (OCD). He has to check and recheck whether lights are switched off and doors are locked. This can make him late for work or other appointments. His obsessive thoughts often distract him from activities that he is doing and disrupt his daily routines. His mental health problem therefore has a substantial adverse effect on the way he does things.

Examples of ‘long term’

  • Jenny has had depression for 10 months and the doctor says it will be likely to last at least another 4 to 5 months.
  • Selina has bipolar affective disorder. She had her first and second episode in January 2013, then a third episode in January 2014. Even though there was a gap between her second and third episode, her mental health problem is considered to have continued over the whole period (in this case, a period of 13 months).

What if I’m getting medication or treatment for my mental health problem?

If you are getting some treatment or taking medication for your condition, you ignore the effect of your treatment when deciding whether your condition is having a substantial, adverse effect on your daily activities. This means the law is looking at how your condition affects you without your treatment or medication.

Example

Mohammed has long-term anxiety and is being treated by counselling. Anxiety would normally make him find simple tasks difficult. Because he has counselling, he is able to get up and go to work.

The Equality Act says you have to ignore his treatment in deciding whether his mental health problem has a substantial adverse effect on his day-to-day activities and so he has a disability.

What if I had a disability in the past?

You are still protected from discrimination if you had a disability in the past. That means that if your past mental health problem had a substantial, long-term and adverse effect, you will get the protection of the Equality Act.

Examples

Four years ago, Mary had depression that lasted 2 years and had a substantial effect on her ability to carry out normal day-to-day activities. She has not experienced depression since then.

If Mary is treated worse by her employer because of her past mental health problem, she will be protected by the Equality Act.

Checklist: Is my mental health problem a disability?

You can ask yourself these questions:

  1. Do I have a mental or physical health impairment?
  2. Is it long-term (meaning lasting more than 12 months or likely to do so)?
  3. Does it have a more than minor adverse effect on my day-to-day living, if I discount my treatment or medication?

If you answered “yes” to all three questions, then your mental health problem could get the protection of the Equality Act.

If you want to get the protection of the Equality Act, you may find it helpful to get some evidence from your GP, or another medical professional. You can ask them to write a letter saying whether they think you have a disability under the Equality Act. It would be particularly useful if they can give their opinion on the answer to each of these three questions.

Example

Esra doesn’t consider herself disabled because she doesn’t receive disability benefits and she is physically healthy.

Esra has been living with an anxiety disorder for the past 3 years. Because of this, it takes her a longer time to do things like get up in the morning, dress herself for the day and do the shopping. She takes medication to control the symptoms.

Esra would be protected by the Equality Act because she has:

  • a mental impairment – an anxiety disorder
  • it is long term – she has had it for the past 3 years
  • it has a substantial effect on her daily life – her mental health has a major effect on her daily life when you ignore the effect of her medication  
  • it has an adverse effect – her mental health problem makes things more difficult for her.

What are the different types of discrimination?

The Equality Act only protects people who have a disability against these types of discrimination:

It is possible that you have experienced discrimination in more than one way.

Direct discrimination

Direct discrimination is when you are treated worse than someone else because you have a disability. You have to show that there is a link between your disability and the way you have been treated, which can be difficult. However, you don’t always have to provide an example of a particular non-disabled person who was treated better than you if it is clear from all the circumstances that your disability was the reason why you were treated as you were.

Discrimination by association: you may be treated worse because of your connection or association with another person with a disability, even if you don’t have a disability yourself.

Discrimination by perception: you can also be treated worse because a person or organisation believes you do have a disability when you don’t.

Examples of direct discrimination

  • Jon is not offered a promotion because he has depression. But his colleague Harry, who does not have depression, is offered a promotion – even though he has less experience and fewer qualifications.
  • Carrie is interviewed for a job. She has better qualifications and more experience than all the other candidates, and performs the best at the interview. One of the interviewers knows of Carrie’s diagnosis of bipolar disorder. Carrie is not offered the job, but neither are any of the other candidates. Carrie hasn’t clearly been treated worse than any of the other candidates, but she has been treated worse than a non-disabled person would have been treated in the same situation.
  • Jenny is not offered an apprenticeship after she tells the training provider that she has caring responsibilities for her partner, who has a mental health problem. This is an example of discrimination by association.
  • A bank incorrectly assumed that David had a long-term mental health problem. They refused him a loan for this reason, even though he has no mental health problem. This is an example of discrimination by perception.

Discrimination arising from disability

This is where you are treated badly not because of your disability but because of something that happens because of your disability.

Unlike direct discrimination, there is no need for you to compare yourself with anyone else. You just have to show that you were treated badly, and this treatment was linked to your disability.

You don’t need to show that the person who treated you badly was aware that the behaviour was due to your disability, but they do need to be aware that you have a disability.

Examples of discrimination arising from disability

  • Peter experiences psychosis and hears voices, which he manages by talking to them. Staff in a shop ask Peter to leave when he is talking to his voices. Peter has been treated unfavourably because of behaviour related to his disability.
  • Jan is given a disciplinary warning from her employer for taking sickness-related absences because of her bipolar disorder. Her employer’s decision to treat this as a disciplinary matter may be discrimination arising from Jan’s disability.

Situations when unfavourable treatment might not be discrimination

There are some situations in which it might be lawful for a person or organisation to treat you unfavourably. These are if they can show that:

there were valid intentions behind their action (such as ensuring the health and safety of others, or keeping up staff attendance so that their business can run properly), and that it was an appropriate action to take in the circumstance (legally this is called a ‘justification‘), or
they did not know you had a disability (and could not reasonably have known).

For example, in Jan’s situation above, her employer might argue that the reason why they disciplined her was because they need to keep up staff attendance – therefore their action was justified. Jan might accept that her employer’s intentions were valid, but argue that the action they took was much too harsh and not appropriate in the circumstance – therefore their action was not justified.

Whoever is deciding whether or not unfavourable treatment is justified needs to balance the needs of both sides carefully, which can be very complicated.

Indirect discrimination

Indirect discrimination is where:

  • a person or organisation has practices or arrangements that seem to treat everyone in an equal, non-discriminatory way, but
  • these practices or arrangements put you and others with your disability at a disadvantage compared with those who do not have your disability.

Examples of indirect discrimination

  • An advice centre will only provide advice to people who visit their centre and will not offer advice by phone or email. This practice puts people with mental health problems like agoraphobia at a disadvantage because they can’t leave their homes to travel to the centre.
  • An employer only offers promotions to people who have a driving licence and are able to drive even though this is not a key requirement of the job. This will discriminate against people with mental health problems that prevent them from holding a driving licence.

For indirect discrimination, it doesn’t matter whether the person or organisation knew about your disability. This means they have to plan in advance and think about how their policies and practices may affect people with mental health problems.

But it is not indirect discrimination if the person or organisation can show these practices and arrangements were justified.

Harassment

Harassment is behaviour from others that you don’t want, that:

  • violates your dignity or creates an environment that is intimidating, degrading, offensive or humiliating, and
  • relates to a disability. It does not have to relate to a disability that you have.

Examples of harassment

  • Mary has an eating disorder. Mary’s manager knows she has an eating disorder and she makes offensive remarks in the open plan office about people with anorexia.
  • Steve has schizoaffective disorder. He is on a day out from inpatient treatment in a psychiatric hospital and is eating with fellow patients at a local café. A member of staff who knows he is a psychiatric patient uses silent gestures and mime to make fun of him. Steve is very upset.

Victimisation

Victimisation is when an employer or organisation puts you at a disadvantage just because:

  • you have made allegation about discrimination, or
  • you have supported someone who has made an allegation of discrimination

Examples of victimisation

  • Jibin’s colleague has bipolar disorder. Jibin supports her colleague to complain to their employer about disability discrimination. After this, Jibin’s manager refuses her promotion on the basis that her loyalty to the company is in question.
  • Deb has an anxiety disorder. She complains to her local supermarket that she genuinely believes that she has been discriminated against by an assistant who made remarks about her condition in front of customers. After this, the manager says she should shop elsewhere.

Making reasonable adjustments

The Equality Act says that employers and service providers should think about making reasonable adjustments (in other words, changes), if you are at a substantial disadvantage compared to other people who do not have a mental health problem.

Reasonable adjustments include:

  • making changes to the way things are organised or done
  • making changes to the built environment, or physical features around you (for example physical features of a building that put a disabled person at substantial disadvantage)
  • providing aids and services for you to overcome the substantial disadvantage.

You cannot be asked to pay for the cost of reasonable adjustments. If a person or organisation does not make reasonable adjustments when it would have been reasonable to do, this will be unlawful discrimination.

To find out more, see our pages on asking for reasonable adjustments from:

Examples of reasonable adjustments

  • Sylvie is working in an office and has depression. She is taking part in a supported employment scheme from the workplace mental health support scheme. Her employer lets her make private phone calls to her support worker in the working day as a reasonable adjustment.
  • Tomasz has a range of problems with anxiety, and he gets particularly anxious travelling on crowded public transport. He speaks to his manager about his mental health problem and explains that he is finding it hard to get to work in the morning travelling during the rush hour. Tomasz’s manager agrees to adjust his working hours so that he comes into work before the morning rush hour and leaves before the evening rush hour. His employer would not have to make adjustments if they did not know about Tomasz’s condition, or how it was affecting his working life.

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