Circumstances When Being Treated Differently Due To Disability Is Lawful
It is always lawful to treat a disabled person more favourably than;a non-disabled person.
Other disabled people
Treating a disabled person with a particular disability more favourably than other disabled people;may be lawful in some circumstances.;For example:;
- where having a particular disability is essential for the job .;For example,;an organisation supporting deaf people might require that an employee whose role is providing counselling to British Sign Language users is a deaf BSL user
- where an organisation is taking positive action to encourage or develop people with a particular disability.;For example, an employer is aware that people with learning disabilities have a particularly high rate of unemployment, so sets up a mentoring and job-shadowing programme for people with learning disabilities to help them prepare to apply for jobs
Occupational requirement and positive action are clarified in our statutory code of practice on employment.
Does The Impairment Have An Effect On Your Ability To Carry Out Normal Day
There is guidance that explains what is meant by normal activities. It means activities carried out by most people fairly regularly, e.g. shopping, reading, writing, having a conversation, watching TV, getting washed and dressed, cooking and eating, housework, walking, travelling , and taking part in social activities. An activity need not be carried out by the whole population for it to be a normal daily activity. For example, it is normal to travel on the tube or by aeroplane, put on make-up or use hair rollers.
When Is Cancer Protected Under The Equality Act 2010
This case below of Lofty v- Hamis deals with the question of when under the Equality Act 2010 does cancer become automatically deemed as a disability. The Equality Act currently has a Schedule 1 which lists those illnesses and diseases which are automatically deemed to be a disability, therefore attracting protection under the Equality Act.
Mrs Lofty was a café assistant and following a biopsy of a blemish on her cheek, she was found to have lentigo maligna which was described as a pre-cancerous lesion which could result in . Following absences from work, some of which were related to treatment for the condition, including two operations to remove the malignant cells, Mrs Lofty was dismissed by her employer and she claimed for unfair dismissal and disability discrimination.
Initially, the Tribunal upheld the unfair dismissal claim but dismissed the disability discrimination claim as it found;that although cancer is deemed a disability under the Equality Act, in the view of the Tribunal the condition did not;amount to cancer since it was pre-cancerous and it was confirmed following the operations that Mrs Lofty had not developed skin cancer.
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Is The Substantial Effect Long
The substantial adverse effect must also be long-term, ie have lasted or be likely to last 12 months or for the rest of the persons life if less than 12 months.
Additional consideration needs to be given in cases where there are recurring conditions or more than one condition that affects activities. Finally someone who had a disability in the past is also covered by the Act.
Your employer needs to know about your disability or have sufficient information so that they ought to have known about your disability for you to benefit from the protection of the Equality Act.
If you think you may be disabled and are having problems at work associated with your impairment you should seek advice as to whether you are protected by the Equality Act.
Exceptions To The Carers Section Of Equality Act 2010
There are as always exceptions to the Equality Act 2010 under the carers section. If you were disabled yourself, youd have the right to have reasonable changes made so you could use services and facilities or go to work.
This doesnt apply to people associated with disabled people so it wont apply to you as a carer. However, as a carer you already have the right to ask for flexible working hours so that you can fit in your caring responsibilities with your work.
Carers Section of Equality Act 2010 taken from Government Equalities Office;Quick start guide for carers.
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Is The Effect Substantial
A substantial adverse effect simply means an effect which is something more than minor or trivial. It is possible that the impairment will not have a substantial adverse effect on any single one activity, but may have a minor effect on several of them which adds up to a substantial adverse effect on the persons ability to carry out normal day-to-day activities.
Importantly, where the effect of the impairment is reduced or controlled by medication, medical treatment or an aid, its impact should be measured as it would be without such medication.
Disability Discrimination Definition Of Cancer
Cancer is a deemed disability under the Equality Act 2010. This means that there is no need for a Claimant to demonstrate an impairment with a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities to be protected by legislation.
The Act states that cancer, HIV infection and multiple sclerosis are each a disability.
But what is cancer for the purposes of the Act ; does it include a pre-cancerous lesion cells which are described as pre-cancerous because they are non-invasive?
In Lofty v Hamis, the Claimant, who was employed as a café assistant, had been diagnosed with lentigo maligna,;an early form of skin cancer.
She had successful surgical treatment to remove cancer cells before they had the opportunity to spread. The EAT upheld the Claimants appeal from a tribunal decision that the Claimant did not have cancer. The tribunal had found that because the Claimant was successfully treated for a pre-cancerous condition, she had never had cancer.
On appeal, the EAT found the claimant was disabled, as her condition fell within the definition of disability under the Equality Act 2010. The EAT highlighted that there is no justification for the introduction of distinctions between different cancers, or to disregard pre-cancerous conditions because they have not yet reached a particular stage.
You can read more about disability discrimination rights here.;
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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
For more detailed guidance on the definition of disability, see Equality Act 2010 guidance on GOV.UK.
Coronavirus And Disability Discrimination
Disabled people and many people with health conditions have been disproportionately affected by the COVID-19 pandemic.
During the pandemic, employees and workers have the same rights as usual to not be discriminated against at work because of disability.
- workplace safety
- ways of working, for example flexible working or hybrid working
- supporting staff who are at a high risk from COVID-19
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Disability Discrimination & Harassment
It is illegal to harass an applicant or employee because he or she has a disability, had a disability in the past, or is believed to have a physical or mental impairment that is not transitory and minor .
Harassment can include, for example, offensive remarks about a person’s disability. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision .
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Who Is Protected By Disability Discrimination Law
At work, the law protects the following people against discrimination:
- employees and workers
- job applicants find out more about discrimination when applying for a job
It’s against the law to discriminate against someone because:
- they have a condition or impairment considered a disability by law find out what disability means
- it’s believed they have a disability even if that’s not true
- they know someone who’s disabled, for example a family member, friend or colleague
- they have another association with disability, for example they volunteer for a disability charity
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The Definition Of Disability
Disability is defined by Section 6 of the Equality Act as follows:
A person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
Ultimately, as this is a legal definition, only a court or a tribunal can declare whether a person has a disability under the terms of the Act or not. Your employer may ask an Occupational Health service to say whether you are covered by the Act, but in reality all they can do is give an opinion.; You may also wish to speak to the medical/ healthcare professionals involved in your treatment or care in order to ask their advice on whether you have the protected characteristic of disability.;;
Physical or Mental Impairment;
- If you have a diagnosis, it should be confirmed by written medical evidence, preferably from a medical expert i.e. a consultant grade surgeon or physician; or suitable practitioner such as your GP, Occupational Health doctor or Counsellor.
- In the absence of a diagnosis, you will need a full and accurate description of your condition and symptoms confirmed by written medical evidence.
Substantial and long-term adverse effect
Even if you recover from your impairment, you may still bring a claim against your employer if you are treated less favourably for having had that impairment.;;
Normal day-to-day activities
Does Your Business Have A Cancer
Employers could take steps to introduce a cancer-specific policy, or to simply;review existing policies to ensure they can be easily interpreted and applied to people with long-term conditions such as cancer.
Its important that these policies are up to date and regularly reviewed to meet the latest requirements. They;can be beneficial because it:
- Meets the legal responsibilities as an employer under the Equality Act 2010
- Provides a framework for supporting employees affected by cancer and ensures that all employees are treated fairly and consistently
- Provides guidance to managers;and alerts staff to sources of information
- Reassures employees that they are valued and enhances the companys reputation as a good employer
Please get in touch if we can assist in drafting policies regarding supporting and handling people affected by cancer in the workplace and also for supporting staff who are caring for someone with a long-term condition.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and the Employment team will be happy to discuss it with you.
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Disability Discrimination & Reasonable Accommodation & Undue Hardship
An employer doesn’t have to provide an accommodation if doing so would cause undue hardship to the employer.
Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.
If Youre Not Sure If Your Impairment Is Substantial Or Long Term
Get advice from your doctor or other medical professional. You could ask them to tell you:
- how long your impairment is likely to last and whether its likely to get worse
- what would happen if you stopped your medication or other treatment
- if there are any activities you should avoid
You doctor might also be able to help you prove you have a disability if you need to later on.
You can also try keeping a diary for a while – write down what you do, what you find difficult and why. This might make it clearer how much your impairment is affecting your normal day-to-day activities. Your friends and family might also be able to help you think of ways youre affected.
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The Equality Act And Carers
As well as the protection the act gives to people with protected characteristics, it also gives rights to people associated with the person with a protected characteristic. This means anyone connected to someone who meets the definition of a disability, such as a family member or carer, is protected from discrimination. For more about the rights of carers, see our factsheet Support for carers.
What To Do If You Feel You Have Been Discriminated Against
You have some options if you feel you have been discriminated against because you have cancer.;It’s always best to start by talking to the person involved about your concerns. This might be your employer, tutor or landlord. It helps to keep a record of what happened and when.
You could speak with your union or human resources officer if the problem is with your employer. There is a scheme called Access to Work that can help with making changes at your place of work. This is for people in England, Scotland and Wales.
You can also get advice from the Citizens Advice Bureau;if you can’t resolve the problem by discussion.
Some people who cant resolve the problem might want to go further and take legal action. Before you do this, take advice and get as much information as you can. You’ll need to think about the cost, because taking legal action can be very expensive. Most people are able to resolve problems without taking any legal action.
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Disability Discrimination When Shielded During Covid
In this blog, we consider the employment protections from discrimination and dismissal available to disabled people who are also shielding during Covid-19.
In March 2020, Public Health England issued guidance on shielding and protecting people who are clinically extremely vulnerable. ;Around 1.28 million people with specific medical conditions are clinically extremely vulnerable because their specific conditions place them at the greatest risk of severe illness from Covid-19.;Although their age-group data does not seem to be available, many could be of working age. ;By now, all these individuals will have received letters from the NHS or their GP notifying them of their status. Examples of clinically extremely vulnerable people include:
- Solid organ transplant recipients;
- People with specific cancers;
- People with severe respiratory conditions including all cystic fibrosis, severe asthma and severe chronic obstructive pulmonary ;
- People with rare diseases and inborn errors of metabolism that significantly increase the risk of infections , homozygous sickle cell);
- People on immunosuppression therapies sufficient to significantly increase risk of infection;
- Women who are pregnant with significant heart disease, congenital or acquired.
This poses particular challenges for people who are shielded and we consider the protections available to those who are both disabled and shielded against discriminatory practices whilst the guidance remains on-going.
Disability Discrimination Under Equality Act 2010
There are several forms of disability discrimination under the new Equality Act 2010 which include:
1: Failure to make reasonable adjustments
This is at the heart of disability discrimination law under the Equality Act 2010. Where any workplace practice or feature of the premises puts a disabled worker at a disadvantage, then the employer must make all adjustments which are reasonable to remove that disadvantage to the disabled worker.
2a: Direct discrimination
It is unlawful for an employer to treat the employee less favourably just because of their disability than s/he treats or would treat a person without that disability.
Provided the reason for the different treatment is the persons disability, there is no defence. This concept is equivalent to that of direct discrimination because of race, sex, sexual orientation, religion and belief under the Equality Act 2010.
It is not disability discrimination against a non-disabled employee to treat a disabled worker more favourably because of their disability.
2b: Direct discrimination by association
It is also unlawful to treat the person less favourably because of the disability of someone else, eg someone with whom s/he is associated with. It is important not to misunderstand this.
It appears that there is no legal right under EU law or the Equality Act 2010 for a non-disabled employee to have reasonable adjustments to take care of disabled relatives.
2c: Direct discrimination due to perceived 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.