Disability and the Law

As a disabled person, you have rights to protect you from discrimination. These rights include

employment
education
Criminal justice
access to services

The Equality Act 2010 and the United Nations Convention on disability rights help to enforce, promote and protect those rights.

Am I Disabled?

You may be sat thinking whether you are classed as disabled or not. There is a legal definition to what a disabled person is.

'a disabled person is anyone who has a physical or mental impairment and that impairment has a substantial and long term adverse effect on a person's ability to carry out normal day to day activities'. The below diagram should help unpick what this means.

Definition of disability

An impairment that has a substantial long-term adverse effect on a person's ability to carry out normal day-to-day activities.

Substantial = more than minor or trivial

Long-term = has lasted or likely to lat at least 12 months

Normal day-to-day activities = things people do on a regular daily basis

The definition covers

Fluctuating or recurring conditions such as rheumatoid arthritis, myalgic encephalitis (ME), chronic fatigue syndrome (CFS), fibromyalgia, depression and epilepsy, even if the person is not currently experiencing any adverse effects.
People with HIV, cancer and multiple sclerosis are deemed as disabled as soon as they are diagnosed.
Other progressive conditions, such as motor neurone disease, muscular dystrophy, and forms of dementia.
A person who is certified as blind, severely sight impaired, sight impaired or partially sighted by a consultant ophthalmologist is deemed to have a disability.
Severe disfigurement is treated as a disability.

A range of conditions are treated as a disability, as long as the other factors from the definition are met, in terms of having substantial and long-term impact on the ability to do normal day to day activities:

- Sensory impairments, such as those affecting sight or hearing.
- Auto-immune conditions such as systemic lupus erythematosis (SLE).
- Organ specific conditions, including respiratory conditions such as asthma, and cardiovascular diseases, including thrombosis, stroke and heart disease.
- Developmental conditions, such as autistic spectrum disorders (ASD) and Attention deficit hyperactivity disorder (ADHD).
- Specific learning difficulties, such as dyslexia and dyspraxia.
- Mental health conditions with symptoms such as anxiety, low mood, panic attacks, phobias; eating disorders; bipolar affective disorders; obsessive compulsive disorders; personality disorders; post-traumatic stress disorder, and some self-harming behaviour.
- Mental illnesses, such as depression and schizophrenia.
- Impairments produced by injury to the body, including to the brain.

Mental health conditions are considered disabilities if they meet the criteria of the definition

(substantial, long-term adverse effect on normal day-to-day activities)

Duty to make reasonable adjustments

Obligation to make adjustments to the way they do things to remove barriers for disabled people. Only obliged to make adjustments that are considered reasonable.
It is good practice for an organisation declining a request for an adjustment to provide an audit trail explaining why it was not considered reasonable.

Factors to be taken into account:

How effective is change at overcoming disadvantage
How practicable changes are
Cost of making changes
Organisation's resources
Availability of financial support

There are things which are not regarded as a disability under the Act, these include:

Addiction to alcohol or nicotine, tendency to set fires, tendency to steal, tendency to physically or sexually abuse others, voyeurism, tattoos and body piercing, hay-fever, exhibitionism.

It is against the law for employers to discriminate against someone because of a disability.
The Equality Act 2010 protects people and covers areas including:

application forms
interview arrangements
recruitment process
aptitude or proficiency tests
job offers
terms of employment including pay
promotion, transfer and training opportunities
dismissal or redundancy
discipline and grievances

Reasonable Adjustments in the Workplace

An employer has to make 'reasonable adjustments' or look at the reasonable adjustment duty to avoid disabled people being put at a disadvantage compared to non disabled people in the workplace. This can include adjusting working hours or providing specialist equipment.

The word reasonable is subjective and can only be tested via an employment tribunal. It will look at things such as:

How effective the change will be in avoiding the disadvantage a disabled person would otherwise experience.
It's practicality.
the cost.
the organisation's resources and size.
the availability of financial support.

Recruitment

As an organisation, we may ask questions around a disabiity or health condition, however its the person's choice as to whether they share that. We an aks about health or disability under the following circumstances

to help decide if you can carry out a task that is an essential part of the role
to help find out if you can take part in an interview
to help decide if the interviewers need to make reasonable adjustments in a selection process
to help with monitoring
to help increase the number of disabled people in the organisations
if we need to know for the purposes of national security checks

Redundancy and Retirement

A disabled person cannot be chosen for redundancy just because they are disabled. The selection process for redundancy must be fair and balanced for all employees. Employers also cannot force a disabled person to retire if they become disabled. You can be dismissed if a disability means that a disabled person cannot do their role even with reasonable adjustments.

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