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Disability discrimination - legal briefing

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A brief legal guide to disability discrimination, including details of where you can go for further information or support

Disability discrimination in provision of services and public functions

Overview

England and Wales have had laws against discrimination since the 1960s. The Race Relations Acts of 1965, 1968 and 1976 outlawed race discrimination, the Equal Pay Act 1970 and the Sex Discrimination Act 1975 outlawed gender discrimination and the Disability Discrimination Act 1995 outlawed disability discrimination.

In 2010 all anti-discrimination laws were brought together under one Act: the Equality Act 2010 (EqA). The EqA has applied in England and Wales since 1 October 2010. Discriminatory acts that took place on or after 1 October 2010, or that started before 1 October 2010 and continued after that date, will be covered by the EqA. Discrimination that took place before 1 October 2010 is covered by the Disability Discrimination Act 1995. For information about discrimination under the Disability Discrimination Act 1995, please email us.

Under the EqA it is unlawful to discriminate against someone who has a disability. The EqA provides protection against discrimination that happens at work, in the provision of services, public functions and premises, and in education. The EqA also deals with discrimination in associations. It does so by making discrimination unlawful in a number of ways, and by providing legal remedies to individuals who experience discrimination.

Protected Characteristics

The EqA makes it unlawful to discriminate against someone based on any ‘protected characteristic’ set out in the Act. The protected characteristics are:

  • Disability
  • Age
  • Gender reassignment
  • Marriage and civil partnership
  • Race
  • Religion or belief
  • Gender
  • Sexual orientation
  • Pregnancy and maternity

What is a disability under the EqA?

Section 6 of the EqA provides a definition of disability. In order for someone to show that there has been disability discrimination, they first have to show that this is because of a disability. Mind’s Proving Disability Checklist can help with this process, for a copy please email: legalunit@mind.org.uk

Under the EqA a person will be considered to have a disability if they:

  • Have an impairment that is either physical or mental; and
  • The impairment has substantial adverse and long-term effects on their ability to carry out normal day-to-day activities.

Impairment: It is not possible to give a complete list of impairments recognised under the EqA but they include mental health conditions such as depression, schizophrenia and bi-polar affective disorder as well as developmental impairments such as dyslexia or autism and learning difficulties. The EqA does not require someone’s mental health problem to be a clinically recognised mental illness in order for it to count as an impairment.

The first step is to show that someone has an impairment. This is normally quite straightforward. The second step is to show what effect the impairment has on their ability to carry out normal day-to-day activities.

Substantial adverse effect: A substantial adverse effect is something that is more than minor or trivial. When deciding whether an impairment has a substantial adverse effect on someone’s ability to carry out day-to-day tasks the following should be taken into consideration (this is not an exhaustive list):

  • The time it takes them to complete a task, compared with the time it would take someone without the impairment
  • The way they would complete task, compared with how someone without the impairment would complete the task
  • The cumulative effect of the impairment on their ability to carry out everyday tasks.

Under the EqA a person only needs to show that their impairment gives rise to adverse effects, not that those adverse effects impact on any particular capacity, such as a person’s memory or their ability to concentrate.

If someone is receiving treatment or medication for their disability that helps them carry out their daily activities, they may still be a person with a disability protected by the EqA. This will depend on whether their ability to carry out day-to-day tasks would be affected in a significant and adverse way if they stopped taking their medication or having treatment. If this is in doubt at any stage it might help to get a medical opinion on what the consequences of stopping treatment or medication would be on someone’s day-to-day activities.

Long-term: A long-term impairment is one which:

  • has lasted at least 12 months; or
  • is likely to last at least 12 months; or
  • is likely to recur.

If someone has a mental health problem that fluctuates over time they may still be regarded as having a long-term impairment. If someone has episodes of mental illness that have a serious adverse affect on their ability to carry out daily activities and those episodes could well occur again, the mental illness is likely to be considered long-term for the purposes of the EqA.

The Office of Disability Issues (see below) has published guidance on what may and may not be considered a disability under the EqA. The guidance can be found at: http://odi.dwp.gov.uk/docs/law/ea/ea-guide-2.pdf. Under section 6(5) of the EqA courts and tribunals must take account of this guidance when they are deciding whether or not someone has a disability.

The Mind Legal Unit’s Proving Disability Checklist can help with proving whether someone has a disability. To request a copy email: legalunit@mind.org.uk.

Services and public functions

This briefing looks at how unlawful discrimination may arise in situations where services are provided to the public or where public functions are carried out. These phrases are explained here. Unlawful discrimination can arise in a number of ways under the EqA (see Types of discrimination under the EqA below).

Services

The EqA applies to services provided to the public or a section of the public whether these  are provided  free or for payment. So, this includes services provided by local councils such as advice services or social work services and park and leisure services. It also includes services provided by government departments, charities, hotels, restaurants, banks, building societies, solicitors, accountants, advice agencies, telesales businesses, leisure centres, sports facilities, gas and electric companies, buses, trains, theatres, cinemas, places of worship, GPs, hospitals and clinics. Some services are subject to special rules. So for example, there are special rules for insurance services. See Insurance cover and mental health. 

Public functions

The EqA also covers public functions like planning application procedures and tax collection, as well as investigation of crimes or being arrested by the police, although there are some exceptions. For example, the EqA does not apply to the procedures in Parliament (Schedule 3 para 1 EqA), to the Security Services (Schedule 3(5)) or to judges when they are judging cases (judicial functions)(Schedule 3 para 4).

Examples of services and public functions are set out in Public sector organisations and discrimination in provision of services and public functions - some examples below.

Types of unlawful discrimination under the EqA

There are many situations in which someone may feel discriminated against because of their disability. In order to reflect this, the EqA sets out different types of discrimination, referred to as ‘prohibited conduct’. Part 3 of Equality Act (EqA) applies to organisations providing services or performing public functions.

If an organisation discriminates against a disabled person in any of the ways described below then that organisation may face a legal claim from the disabled person. The types of discrimination below are the ones that apply to disability discrimination. Just because treatment is unfair does not mean that it will amount to unlawful disability discrimination. For unfair treatment to be unlawful disability discrimination, it must be related to a person’s disability in one of the ways described below.

Direct discrimination

Direct discrimination is where a person is treated less favourably than someone else because of their disability (section 13 EqA). In order to show that there has been discrimination, a person must demonstrate that there is a link between their disability and the way they were treated.

For example, if a hotel refuses a booking from a customer because she explains she has schizophrenia but the hotel accepts bookings from people who do not have schizophrenia, the hotel is treating that customer less favourably than others and the reason for this is her disability. This would be direct discrimination.

If a GP refuses to register a patient on her list because he has bipolar disorder but accepts other patients onto her list that would also be an example of direct discrimination.

A person may experience unlawful discrimination because of a disability even if they do not have a disability themselves. This might arise in two situations:

1)  Discrimination by association: A person may be discriminated against because of their connection or association with a disabled person. For example if a restaurant refused to serve a customer because he had been campaigning on behalf of people with mental health problems this would be treating him worse than other customers and the reason for this was because of his connection with people with disabilities.

2)  Discrimination by perception: A person may be discriminated against because there is a perception or belief that they are disabled, even if they are not. For example, if a bank incorrectly assumed that a customer had a mental health problem and because of this treated the customer worse as a result (by refusing to grant him a loan) this may amount to discrimination even though the customer may not have a mental health disability.

Direct discrimination can be difficult to prove. However, where there is evidence that direct discrimination has taken place, the discriminator will be held responsible for their unlawful behaviour and will have no opportunity to justify why they acted in that way.

A non-disabled person who is treated less favourably than a disabled person cannot bring a claim under the EqA. This recognises that in some circumstances disabled people may need to be treated in a more advantageous way (see Reasonable Adjustments below) than non-disabled people. In relation to disability discrimination, the Act only protects disabled people, so it is not discrimination to treat a disabled person more favourably than a non-disabled person.

Discrimination arising from disability

Section 15 of the EqA prohibits the unfavourable treatment of a disabled person where the reason for the unfavourable treatment is not the disability itself, but something that arises in consequence of the disability.

One example of this might be where a person is turned away from an interview at a Job Centre Plus because he is swearing. However, his swearing is the result of having Tourette syndrome. The refusal to interview is unfavourable treatment, which is because of something that arises in consequence of the disabled person’s disability.  This is likely to be discriminatory.

Unlike direct discrimination, in this case, there is no need for the disabled person to compare themselves with anyone else; they just need to show that they were treated unfavourably and that this treatment was linked to their disability.

If someone shows that they have been treated unfavourably for a reason related to their disability, the organization providing the service or performing the public function will have the chance to justify this treatment. Discrimination arising from disability can be justified if it is a proportionate way of achieving a legitimate aim. This means that a service provider can justify the way they treated a disabled person if there was a good reason for it and the action they took was reasonable.

If the service provider can show that they did not know that the disabled person had the disability in question; and could not reasonably be expected to know that the disabled person had the disability, then the unfavourable treatment does not amount to discrimination arising from disability.

It is not enough for the service provider to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it.

Indirect discrimination

Under section 19 of the EqA a disabled person can argue that a practice or arrangement which appears to be neutral and non-discriminatory does in fact put them at a particular disadvantage compared to people who are not disabled. This is indirect discrimination and it requires the organisation to think ahead about the impact that their policies and practices and arrangements might have upon disabled people.

For example, if an advice centre will only provide advice to people who visit their centre and will not provide advice by telephone or email, this practice is likely to put at a particular disadvantage customers who have a mental health condition like agoraphobia as they are unable to travel to the centre because of their mental health condition.

If an indirectly discriminatory practice is shown to exist, the organisation may be able to justify it if it is a proportionate way of achieving a legitimate aim. This means that an organisation providing a service or public function can justify this type of discrimination by showing that there was a good reason for it and that the action taken was reasonable.

The duty to make reasonable adjustments

The law (section 20 EqA)  recognise that adjustments (changes) may need to be made in certain areas to help disabled people overcome barriers that are not faced by people who are not disabled.

This is known as ‘the duty to make reasonable adjustments’. An organisation providing a service or performng a public function has to consider making reasonable adjustments (in other words, changes) if a disabled person is at a substantial disadvantage in using its services or functions when compared with someone who is not disabled.

This may mean:

  • changing the way in which services are delivered or functions are performed (EqA calls this the provisions, criteria or practices), and/or;
  • providing extra equipment like an induction loop or extra staff assistance (EqA calls these auxiliary aids), and/or;
  • removing, altering or avoiding physical barriers.

This means that organisations should not wait until a disabled person wants to use their services before they consider the changes they need to make for the range of disabled people they may serve. Organisations must plan in advance to meet the access needs of disabled people. So this includes planning how to deliver services or provide public functions to people with mental health problems. The duty to make reasonable adjustments is  ‘anticipatory’.

An organisation is not expected to do more than it is reasonable for it to do.What is reasonable for an organisation to do will depend on all the circumstances including:

  • the type of service it provides
  • the size of the organisation and what resources it has
  • the effect that making the change would actually have on the disabled person.

If  adjustments (changes) are identified that are reasonable for that organisation to make, then it must make them. The duty to make reasonable adjustments aims to ensure that a disabled person can use an organisation’s services as closely as it is reasonably possible to get to the standard usually offered to non-disabled people.

Here are some examples of reasonable adjustments that organisations providing services or exercising public functions might make for a disabled person with a mental health problem:

a)     A social worker plans a social care assessment  for someone with a mental health problem. That person finds it is difficult to concentrate or to participate in the meeting to discuss his needs because of his condition. The social worker agrees that he should have an independent advocate to support him and help him explain what his views and his needs are.  Providing the advocate in this case can be a reasonable adjustment when providing the social care assessment process.

b)     A healthcare professional (HCP) invites a woman who has agoraphobia to go to a meeting about her Employment and Support Allowance claim. She explains she cannot leave her home because of her mental health problems and provides a doctor’s report to confirm this. The HCP reorganises the meeting to be a home visit. Changing the place where the meeting takes place is a reasonable adjustment to the normal practice.

c)      A care coordinator arranges a Care Programme Approach (CPA) meeting for a patient who has mental health condition that leads her to feel very anxious and distressed in large groups of people. She also has difficultly in motivating herself to get up and leave home. The care coordinator discusses these considerations with her. She arranges for the CPA meeting to take place in the afternoon and ensures that the number of attendees is reduced and that there are opportunities for the patient to take short breaks. These changes are reasonable adjustments to the way that the health trust provides the CPA meeting.

Harassment

Section 26 of the EqA prohibits harassment. Section 29 of the EqA says that providers of services or public functions must not harass disabled people. Harassment is defined in the EqA to mean behaviour that violates someone’s dignity or creates an environment that is intimidating, degrading or humiliating. The behaviour has to be related to the victim’s disability in order for it to be covered by the EqA. An example would be where a customer services assistant makes fun of a disabled customer using abusive or derogatory language or making light of their disability.

Victimisation

Under section 27 of the EqA a person can bring a victimisation claim if they have been victimised because of their disability. Victimisation means a person being placed at a disadvantage by the organisation that provides services or public functions because they have made an allegation of discrimination, or supported someone else who has made an allegation of discrimination. So for example if a sports centre refuses admission to a customer because that person has complained about disability discrimination that would be victimisation.

Challenging discrimination in the provision of services and public functions

If a person thinks that they may have been subjected to disability discrimination by an organisation providing a service or public function, it is advisable for them to make a note of what happened at the time it occurs and keep details of any witnesses present. There are a number of options for people wishing to raise a complaint of discrimination. Depending on the kind of problem, they can try to resolve the problem first informally by raising it with the customer services or complaints department of the organisation if it has one. They may want to use the formal complaints procedure for that organisation. For example someone who has been discriminated against by staff in a hospital or GP surgery can use the health and social care complaints procedure. See complaining about health and social care.

They may also want to get advice about a legal claim for disability discrimination.

Discrimination questionnaire or question form

If someone is considering whether they may be able to take a disability discrimination claim, it is often helpful to send the organisation a questionnaire form first (http://www.homeoffice.gov.uk/publications/equalities/equality-act-publications/complaints-Equality-Act/). The form can be completed as soon as the person becomes aware of the discrimination. If the organisation responds to the questions, it can help to identify the strengths and weaknesses of a potential claim and can help to reach a settlement early on. If the organisation does not respond to the questionnaire then this may reflect badly on them if a legal claim is taken against them later. It is a good idea to get advice on how to complete the questionnaire.

County Court

A person who has experienced disability discrimination from an organisation that provides a service or public function can bring a legal claim in the County Court. If after considering the evidence, the court finds that the disabled person has been discriminated against, the court has the power make a public statement confirming that there has been disability discrimination (called a declaration) and/or award compensation and/or order the organisation to make a reasonable adjustment.

Time limits for the County Court

A claim against a service provider or a public authority has to be started in the County Court within six months less one day of the discrimination that is being complained about. This is particularly important if there is a single discriminatory act on a particular date. In some cases there may be a series of matters or ongoing poor treatment that amount to discrimination, the three month time limit will run from the last of these. It may occasionally be possible to make a claim after the six months has passed. The person making the claim will need to show that there are good reasons for being late, for example by showing that the effects of their disability prevented them being able to bring the claim sooner. The County Court may allow a late claim if it thinks it is fair to do so.

If someone wants to bring a claim in the County Court, they should seek legal advice as soon as possible.

The Public Sector Equality Duty

Under Part 11 of the EqA most public authorities that provide services or carry out public functions, such as NHS hospitals, government departments, local authorities, universities and the police have to comply with the public sector equality duty. A full list of the public authorities covered by the duty is in Schedule19 of the EqA. The public sector equality duty means they must try to eliminate discrimination, harassment and victimisation, to advance equality of opportunity for people with a protected characteristic (see Protected Characteristics above). So, this duty includes people who are disabled because of mental health conditions. Public authorities also have a duty to foster good relations between people who have a protected characteristic and people who do not.

When public authorities provide services or carry out their functions they have to consider the need to promote equality of opportunity by considering the three aims of the Public Sector Equality Duty which are:

  • Removing or minimising disadvantages suffered by people who have a protected characteristic
  • Taking steps to meet the needs of people who share a protected characteristic that are different from the needs of persons who do not have a protected characteristic
  • Encouraging people who share a protected characteristic to participate in public life or in any other activity in which participation by such people is disproportionately low.

Meeting different needs means taking steps to take account of disabled people's disabilities. EqA describes fostering good relations as tackling prejudice and promoting understanding between people from different groups. EqA expects that compliance with the duty may involve treating some people more favourably than others.  Here is an example of how the public sector duty could apply.

A local authority plans to cut its mental health care support services. This policy decision has to comply with the EqA public sector duty. It is likely to mean that the local authority should consult the people and organisations affected by the decision. It needs to take steps to consider and plan for the effect the proposed change will have on the existing and future service users, carers, relatives, and their related organisations. If the local authority does not take account of how the changes impact upon the people affected by the decision, then it may be in breach of its public sector equality duty.

The Equality and Human Rights Commission has produced guidance on how public authorities can make sure they comply with the public duty. It is worth checking through this if you are worried that a public authority is not keeping to its public equality duties. See http://www.equalityhumanrights.com/legal-and-policy/equality-act/equality-act-codes-of-practice-and-technical-guidance/#techPSED.

If someone thinks that there may be a breach of the Public Sector Equality duty that affects them or the organisation they belong to they should seek legal advice as soon as possible. The procedure for challenging the decisions or policy plans of a public authority is by judicial review (see below).

Judicial review in the High Court

If a person thinks there has been disability discrimination and is complaining about the lawfulness of a decision, act or failure to act of a public authority or of a private person carrying out a public function, then it may be possible for that person to take legal proceedings for judicial review in the High Court rather than a claim in the County Court.

A judicial review is not about challenging the outcome of a decision, but the process by which the decision was made. A judicial review is concerned with whether the Equality Act’s public sector duty has been correctly applied and the right procedures have been followed in the decision making process. It may also include challenging a failure of the public authority to comply with human rights provisions (see human rights and discrimination below). If a judicial review is successful the court may cancel the decision that has been made or order the public authority to take a particular step or not to take a particular step in order to put things right.

Time limit for judicial review

Anyone who wants to bring a claim for judicial review has to get permission first from the High Court. Any application for permission has to be brought promptly and in any event within 3 months less one day of the discriminatory decision or act complained of.

Human rights and discrimination by public authorities

There is a close relationship between equality and human rights.  Public authorities must act in accordance with human rights as well as the EqA and this includes the prohibition of discrimination under Article 14 of the European Convention on Human Rights (see Mind Legal Briefing Human Rights). This prohibition covers disability discrimination. This means that whenever the actions of a public authority involve human rights (such as the right to a private life under Article 8 or the right to practise a religion under Article 9), they must not behave in a discriminatory way.

Public sector organisations and discrimination in provision of services and public functions - some examples.

Services provided by courts and tribunals.

Courts and tribunals provide services to members of the public. So court staff must not discriminate in the way that they provide services to the public. Courts and tribunal services must make reasonable adjustments if required. They have to plan and provide their services, taking account of the needs of disabled customers. One reasonable adjustment for a court to make might be to provide information about the court in a range of formats to ensure that disabled people with cognitive disabilities can understand the information. If a person is unable to attend a court hearing because of a disability then they may require an adjustment, for example use of a video link.

However, when judges in courts and tribunals are listening to evidence in trials and making decisions, a challenge cannot be brought against them under the EqA. If a court user thinks that a judge has acted in a discriminatory way, they can make a complaint. If a disabled person considers that there has been discrimination which makes the judge’s decision in the case either legally inaccurate or biased against the disabled person then they need to get advice about an appeal to the decision.

Services and public functions and the DWP

The Department of Work and Pensions (DWP) is a public authority which supplies services to the public and performs public functions. The EqA applies to the DWP’s services and functions and the public sector equality duty also applies.The DWP works with Job Centre Plus staff and health care professionals to provide information and assessment services for benefit claimants and must not treat a disabled claimant with mental health condition less favourably than other claimants because of that person’s mental health condition (see Types of unlawful discrimination under the EqA above). For example, a Job Centre Plus customer service officer must not refuse a service to someone because they have a particular mental health disagnosis. Disabled benefit claimants with mental health conditions may need reasonable adjustments to claims procedures, if their mental health condition makes it very difficult for them to use the procedure for claiming benefits. So for example, a person who experiences panic attacks or delusions because of their mental health condition may not be able to travel to the assessment centre. They might need to ask for a home visit if they are unable to access a medical assessment centre away from their home. To get the adjustment, they would need to provide evidence of the condition and its effect from a doctor or mental health professional. If a disabled claimant receives a decision about their claim that they think is wrong then they need to get advice about the welfare benefits appeals and review procedures (http://www.dwp.gov.uk/adviser/updates/appls-process-changesl/).

Discrimination and the police

The EqA applies to the police when they provide services to the public e.g. when they give crime prevention advice and also when they exercise their public functions such as investigating crimes; take statements from victims or witnesses or use stop and search powers or arrest and question suspects.

For example a person with a mental health problem who is the victim of crime should expect the police to respond to and investigate their crime report with the same standard of care provided to other members of the public. A decision to take no further action should be based on evidence and not on the fact that a person has a mental health condition. If it appears that a decision has been made not to investigate a crime because the victim has a mental health condition this would be a decision that might be challenged using judicial review (see The Public Sector Equality Duty above).

In developing their policing policies and priorities, police authorities and Chief Constables  have to comply with the public sector equality duty.

Getting legal advice

The legal aid scheme covers initial legal advice (sometimes called ‘legal help’) for discrimination (discrimination law) and for decisions and policies made by public authorities (public law). To get legal aid, a person has to be financially eligible. 

The Community Legal Advice Service can be contacted for further advice about providers (https://www.gov.uk/legal-aid/how-to-claim). To obtain representation in court for a discrimination claim or a public law challenge, there is also a merits test based on the likelihood of succeeding in the claim and what is at stake.

A person bringing a discrimination claim may be able to obtain legal advice and/or representation on their insurance policy (for example, home contents), which may cover legal expenses. It may also be possible, depending on the kind of case, to have a conditional fee agreement.

The Law Society website provides a list of solicitors (see below).

Otherwise, free legal advice may be available from one of the following organisations:

  1. A local law centre with an employment or disability adviser. Law centres tend to be located in major towns and will be listed in the telephone directory or online. The Law Centres Network can be contacted on 020 7842 0720 or at www.lawcentres.org.uk
  2. A disability advice centre, which is part of the DIAL network. They should be listed in the telephone directory, or can be contacted through DIALUK on 01302 310 123 or at www.dialuk.info
  3. A Citizens’ Advice Bureau can offer general advice. Most towns have a CAB. They will be listed in the telephone directory, or you can contact the National Association of CABx on 020 7833 2181 or at www.citizensadvice.org.uk
  4. The Disability Law Service, which offers legal advice about discrimination in education and can offer casework support. They can be found at www.dls.org.uk or contacted on 020 7791 9800 or emailed at advice@dls.org.uk.
  5. LawWorks, which offers legal advice to individuals who are not eligible for public funding: www.lawworks.org.uk/

The Office of Disability Issues

The Office of Disability Issues (ODI) was set up in 2005 to coordinate disability policies across government. It is part of the Department of Work and Pensions and works closely with the Minister for Disabled People. The ODI drafts policies, advises the government on disability issues, undertakes research on disability issues and promotes the principles set out in the EqA, the Human Rights Act 1998 and the UN Convention on the Rights of Persons with Disabilities.

The Equality and Human Rights Commission

The Equality and Human Rights Commission (EHRC) is a statutory body. This means that it was established by legislation and has a specific function. The EHRC is responsible for monitoring and protecting human rights in Britain, including by equality for people with disabilities or other protected characteristics. The EHRC does research, promotes good practice, takes legal cases and offers advice on human rights and discrimination. The EHRC also has the power to challenge employers who ask unlawful pre-employment health questions (see above). A detailed Code of Practice on the EqA in the context of provision of services and public functions has been produced by the Equality and Human Rights Commission.

The Equality Advisory and Support Service

The Equality Advisory and Support Service (EASS), funded by the Government Equality Office, began operation on 1 October 2012. The service replaces a helpline run by the Equality and Human Rights Commission which has closed.

The EASS helpline is for people who think they may have experienced discrimination. The service aims to support people referred from local organisations like advisory groups working within the community that support people experiencing discrimination. People are also able to call the helpline directly. The EASS helpline can provide advice and information on discrimination in employment, housing, education, transport and cases where there may have been discrimination when using or buying goods and services. It can also provide advice and information on human rights issues. Help is provided by:

  • explaining what the law says and how it applies
  • explaining how a situation could be resolved
  • support to resolve issues informally
  • referrals to a conciliation or mediation service
  • helping to work out eligibility for civil legal aid
  • helping to find an accessible legal service, or helping people to represent themselves by giving information and support on how to prepare and lodge a claim.

The EASS does not:

  • provide legal advice
  • represent you when providing pre-claim support
  • advise on the strength of a case
  • advise on what evidence is needed for a case
  • advise on court or tribunal proceedings once a claim has been issued.

Further information

This legal briefing attempts to outline some of the key concepts of discrimination in the provision of services, as defined by the EqA. It is not a substitute for legal advice in any particular case.  As mentioned above, there are some differences in the way that the law will apply depending on the circumstances and background to the alleged discrimination.

You can find out more about Mind’s Legal Unit on our website. For details on the kinds of cases that Mind might be able to assist with, please consult our Casework Criteria.

For general advice about discrimination and difficulties at work, please contact the Mind Legal Advice Service on 0300 466 6463 or legal@mind.org.uk

More specialist advice can be obtained from the following four organisations:

The Law Society
www.lawsociety.org.uk
0870 606 2555

Community Legal Advice
www.communitylegaladvice.org.uk
0845 345 4345

The Equality and Human Rights Commission
www.equalityhumanrights.com

The Equality and Advisory Support Service       www.equalityadvisoryservice.com                                   FREEPOST, Equality Advisory Support Service, FPN4431
Telephone: 0800 444 205
Textphone: 0800 444 206
Monday to Friday, 9am to 8pm; Saturday, 10am to 2pm.
Text users can dial 0800 444 206 and Skype video BSL calls can access the helpline via the Royal Association for Deaf People. Details are on the website at www.radlegalservices.org.uk

The Disability Law Service
www.dls.org.uk
Email: advice@dls.org.uk
020 7791 9800

Alternatively, you could contact your local law centre or Citizens Advice Bureau, who may be able to help.

Mind Legal Unit 

March 2013

Disability discrimation in education

Overview

England and Wales have had laws prohibiting discrimination since the 1960s. The Race Relations Acts of 1965, 1968 and 1976 outlawed race discrimination, the Equal Pay Act 1970 and the Sex Discrimination Act 1975 outlawed gender discrimination and the Disability Discrimination Act 1995 outlawed disability discrimination.

In 2010 all discrimination legislation was brought together under one law: the Equality Act 2010 (EqA). The EqA has applied in England and Wales since 1 October 2010. Discriminatory acts that took place on or after 1 October 2010, or that started before 1 October 2010 and continued after that date, will fall under the EqA. Discrimination that occurred before 1 October 2010 will fall under the Disability Discrimination Act 1995. If you need information about discrimination under the Disability Discrimination Act 1995, please contact legal@mind.org.uk.

Under the EqA it is unlawful to discriminate against someone who has a disability. The EqA provides protection against discrimination that happens at work, in the provision of services, public functions and premises, and in education. The EqA also deals with discrimination in associations. It does so by making discrimination unlawful in a number of ways, and by providing legal remedies to individuals who experience discrimination.

Protected characteristics

The EqA makes it unlawful to discriminate against someone on the basis of any ‘protected characteristic’ set out in the Act. The protected characteristics are:

  • Disability
  • Age
  • Gender reassignment
  • Marriage and civil partnership
  • Race
  • Religion or belief
  • Gender
  • Sexual orientation
  • Pregnancy and maternity

This legal briefing looks at the law in England and Wales, focussing on disability discrimination in education. The EqA applies to all education bodies, including primary and secondary schools, special schools, further education colleges, universities and vocational training colleges. It applies to state funded education bodies as well as to independent institutions and academies. The EqA applies to all aspects of education, including admission, treatment of students and exclusion. However, the protected characteristics of age and marriage or civil partnership status do not apply to the schools provisions under the EqA.

For the equality duties of private, pre-school institutions such as playgroups or children’s centres, see section above on Disability discrimination in the provision of services.

For the law on disability discrimination in other areas, see Mind’s Legal Briefings.

What is a disability under the EqA?

Section 6 of the EqA provides a definition of disability. In order for someone to show that there has been disability discrimination, they first have to show that they have a disability. Mind’s Proving Disability Checklist can help with this process, and you can request a copy of this checklist by email.

Under the EqA a person will be considered to have a disability if they:

  • Have an impairment that is either physical or mental; and
  • The impairment has substantial adverse and long-term effects on their ability to carry out normal day-to-day activities.

Impairment: It is not possible to give a complete list of impairments recognised under the EqA but they include developmental impairments such as dyslexia or autism, learning difficulties and mental health conditions such as depression, schizophrenia and bi-polar affective disorder. The EqA does not require someone’s mental health problem to be a clinically recognised mental illness in order for it to count as an impairment.

The first step is to show that someone has an impairment. This is normally quite straightforward. The second step is to show what effect the impairment has on their ability to carry out normal day-to-day activities.

Substantial adverse effect: A substantial adverse effect is something that is more than minor or trivial. When deciding whether an impairment has a substantial adverse effect on someone’s ability to carry out day-to-day tasks the following should be taken into consideration (this is not an exhaustive list):

  • The time it takes them to complete a task, compared with the time it would take someone without the impairment
  • The way they would complete task, compared with how someone without the impairment would complete the task
  • The cumulative effect of the impairment on their ability to carry out everyday tasks

Under the EqA a person only needs to show that their impairment gives rise to adverse effects, not that those adverse effects impact on any particular capacity, such as a person’s memory or their ability to concentrate.

If someone is receiving treatment or medication for their disability that helps them carry out their daily activities, they may still be a person with a disability protected by the EqA. This will depend on whether their ability to carry out day-to-day tasks would be affected in a significant and adverse way if they stopped taking their medication or having treatment. If this is in doubt at any stage it might help to get a medical opinion on what the consequences of stopping treatment or medication would be on someone’s day-to-day activities.

Long-term: A long-term impairment is one:

  • Which has lasted at least 12 months; or
  • Which is likely to last at least 12 months; or
  • Which is likely to recur.

If someone’s mental health problems fluctuate over time they may still be regarded as having a long-term impairment. If someone has episodes of mental illness that have a serious adverse affect on their ability to carry out daily activities and those episodes could well occur again, their mental illness are considered long-term for the purposes of the EqA.

The Office of Disability Issues (see below) has published guidance on what may and may not be considered a disability under the EqA. 

Under section 6(5) of the EqA courts and tribunals must take account of this guidance when they are deciding whether or not someone has a disability.

If someone has mental health problems and needs to show that these come within the definition of a disability under the EqA, please email the Mind Legal Unit for a copy of their Proving Disability Checklist.

Types of discrimination under the EqA

There are many situations in which someone may feel discriminated against because of their disability. In order to reflect this the EqA sets out different types of discrimination, called ‘prohibited conduct’. Part 6 of the EqA sets out what is prohibited conduct in the context of education. Chapter 1 of Part 6 deals with schools and Chapter 2 deals with further and higher education bodies.

Under the EqA it is unlawful for a school or further or higher education body to discriminate against a student in relation to:

  • Admission/enrolment
  • The terms of admission/enrolment
  • The way it provides education or training
  • The way it provides access to facilities, services or benefits
  • Exclusion
  • Deciding who gets a qualification
  • Deciding which qualification someone gets.

If an education body discriminates against someone in any of the ways described below, they may face a legal claim from the person who has been discriminated against. The types of discrimination set out below are the ones that apply to disability discrimination (there are some variations for the other protected characteristics).

Direct discrimination

Direct discrimination is where a person is treated less favourably than someone else because of their disability (section 13 EqA). In order to show that there has been discrimination, a person must demonstrate that there is a link between their disability and the way they were treated. For example, if a pupil is told that she will not be allowed to go on any school trips because she has a diagnosis of schizophrenia but that her sibling will be because she does not have any mental health problems, this would be direct discrimination. The pupil with schizophrenia has been treated less favourably than her sibling, and the reason for this is her disability.

In some cases there may not be any evidence that an education body has actually treated anyone else better than the person with a disability. In such cases the disabled person can still challenge the way that they have been treated by gathering evidence that shows how their education body would have acted towards a non-disabled person in that type of situation.

A person may be unlawfully discriminated against because of a disability even if they do not have a disability themselves. This might arise in two situations:

1)     A person may be discriminated against because of their connection or association with a disabled person. For example, if the non-disabled child of a disabled parent is treated less favourably because they have a disabled parent

2)     A person may be discriminated against because there is a perception or belief that they are disabled, even if they are not. For example, if someone is assumed to have a mental health problem and is treated adversely as a result, this may amount to discrimination even if the person does not have a mental health problem.

Direct discrimination is difficult to prove. However, where there is evidence that direct discrimination has taken place, the discriminator will be held responsible for their unlawful action and will have no opportunity to justify why it acted that way.

A non-disabled person who is treated less favourably than a disabled person cannot bring a claim under the EqA. This recognises that in some situations disabled people may need to be treated in a more advantageous way (see Reasonable Adjustments below) than non-disabled people.

It is never unlawful for a disabled student or applicant to be treated more favourably than a non-disabled student.

Exception for school admissions

Some education bodies are allowed to discriminate against disabled students in their admissions policies. Maintained schools with selective admissions criteria (grammar schools for example) and independent schools that require some or all of their students to be selected by reference to ability may enforce these admissions criteria even though they may have discriminatory effects (Schedule 11, Part 3 EqA).

Discrimination arising from disability

Section 15 of the EqA prohibits the unfavourable treatment of a disabled person where the reason for the unfavourable treatment is not the disability itself, but something that arises in consequence of the disability. An example of this is where someone is disciplined by their school because they have to take sickness related absences. The absences arise out of the person’s disability and so the decision to discipline them rather than adapt the absence procedures to take account of their disability may be discriminatory. In this situation there is no need for the disabled person to compare themselves with anyone else, they just need to show that they were treated unfavourably and that this treatment was linked to their disability.

If someone shows that they have been discriminated against for reasons arising out of their disability the discriminator will have an opportunity to justify the discrimination. Discrimination arising from disability can be justified if it is a proportionate way of achieving a legitimate aim. This means that an education body can justify this type of discrimination by showing that there was a good reason for it and that the action taken was reasonable. For example, a school may be able to justify disciplining a pupil for sickness absences if the pupil could easily arrange appointments, assessment or treatment outside of the school timetable. However, the school also needs to consider making reasonable adjustments (see below).

An education body will not be found to have discriminated against someone if they did not know about the person’s disability. However, if an education body is shown to have had information that indicated that someone had a disability, they will be treated as having known about that person’s disability at least from that date.

Understandably many people are concerned that disclosing a mental health condition will lead to discriminatory treatment. However, telling your education body about your disability will put them on notice that treating you unfavourably may be unlawful discrimination and so should improve your chances of being treated fairly and appropriately.

Indirect discrimination

Under section 19 of the EqA a disabled person can argue that a practice or arrangement which appears to be neutral and non-discriminatory does in fact put them at a particular disadvantage compared to people who are not disabled. This is a new type of discrimination that did not exist under the Disability Discrimination Act 1995. Unlike discrimination arising from disability (see above), it does not matter whether an education body knew about a student’s disability. This means that education bodies need to think ahead about the impact that their policies, practices and arrangements might have on disabled people.

If it is shown that an indirectly discriminatory practice exists the education body may be able to justify it if it is a proportionate way of achieving a legitimate aim. This means that an education body can justify this type of discrimination by showing that there was a good reason for it and that the action taken was reasonable.

The duty to make reasonable adjustments

The law recognises that adjustments may need to be made in certain areas to help disabled people overcome barriers not faced by people who do not have disabilities. This duty arises when an education body knows (or should know) that a student is disabled. An education body is then expected to take proactive steps to comply with the duty to make reasonable adjustments in its admissions policy and the way that it provides education. If there is uncertainty about whether a student is disabled, the education body should ask for a medical opinion from a GP. If it is established that a student is or is likely to be disabled, the GP may be able to identify the disadvantages experienced by the student, and the steps that could be taken to overcome them.

Where a disabled student faces substantial disadvantages in education, the education body will need to make changes to the extent that it is reasonable which would help a disabled person to overcome the substantial disadvantage.

The duty to make reasonable adjustments is a positive one and education bodies are expected to be able to show that they have paid careful attention to meeting it.

An education body should consider all adjustments that may help the disabled person. These may include:

  • Making adjustments to the physical surroundings
  • Allowing a student to study from home from time to time
  • Allowing a student to be absent during teaching hours for rehabilitation, assessment or treatment
  • Providing additional supervision or support
  • Acquiring or modifying equipment
  • Temporarily stopping tasks that the student is finding difficult or stressful
  • Allowing for time out during the day
  • Appointing a mentor or buddy for the person
  • Establishing tailored disciplinary and exclusion procedures for people with disabilities
  • Allowing breaks during exams or more time for exams 

The student does not need to come up with suggestions, but it may help to do so, and the education body must consider any reasonable adjustments that the student proposes.

What is reasonable for the education body to do will be judged according to the following factors:

  • The extent to which the adjustment will prevent the problem
  • The extent to which it is practicable for the education body to make the adjustment
  • The financial and other costs of making the adjustment, including disruption to any of the education body’s activities
  • The extent of the education body’s financial and other resources
  • The availability to the education body of financial or other assistance (see below) to make the adjustment

Exception for competence standards

Reasonable adjustments are not required in relation to competence standards. Competence standards are academic, medical or other standards applied for the purpose of determining whether or not someone has the required level of competence or ability (Schedule 13 EqA). This means that where a competence standard is applied it cannot be subject to a claim based on a failure to make reasonable adjustments, although it could be the basis of a claim for direct, disability-related discrimination or indirect discrimination.

Specific duty towards disabled pupils

Under Schedule 10 of the EqA local authorities are required to produce and implement accessibility strategies and plans for disabled pupils in schools. These strategies and plans must include:

  • Increasing the extent to which disabled pupils can participate in the school curriculum
  • Improving the physical environment of schools to enable disabled pupils to take advantage of education, benefits and services provided by schools
  • Improving the delivery of information to disabled pupils, which should take account of the pupils’ disabilities and any preferences expressed by them or their parents?

This duty does not apply to independent schools or academies.

Harassment

Under the EqA schools (section 85) and further and higher education bodies (section 91) are prohibited from harassing people with disabilities. If an education body’s behaviour amounts to harassment a disabled person will be able to bring a discrimination claim against them.

Harassment is defined by the EqA as acting in a way that violates someone’s dignity or creates an environment that is intimidating, degrading or humiliating. This might involve someone making fun of a disabled person, using abusive or derogatory language, or making light of their disability.

If harassment in education is linked to someone’s disability, the person will be able to include harassment in a disability discrimination claim.

Victimisation

Under section 27 of the EqA a person can bring a victimisation claim if they have been victimised because of their disability. Victimisation occurs when someone makes an allegation of discrimination, or supports someone else who makes an allegation of discrimination, and is placed at a disadvantage as a result.

In the context of schools, the definition of victimisation is wider (section 85 EqA). If a parent or sibling of a pupil makes an allegation of discrimination or supports someone else making such an allegation and as a result the pupil is placed at a disadvantage, this will amount to victimisation.

Challenging discrimination in education

Making a complaint

Schools: Initially it will usually be best to raise a discrimination issue via a school’s complaints procedure. Under section 29(1) of the Education Act 2002 the governing bodies of all state schools are required to establish a complaints procedure and information about how to make a complaint should be made available.

If the complaint relates to a general policy applied by a state school rather than to a specific case, a complaint can be made to Ofsted.

Higher and further education providers: Initially it will be best to raise a discrimination issue through the education provider’s internal complaints procedure. If someone is not satisfied with the outcome of the internal complaints procedure they can make a complaint of discrimination to the Office of the Independent Adjudicator (OIA).

If a student makes a complaint to the OIA within six months of the alleged discrimination, then the time limit for bringing an action in court is extended by three months. 

Further information can be obtained from the OIA’s website.

Remember that education providers are required to make reasonable adjustments to their complaints procedures to prevent disabled people from facing a substantial disadvantage.

Bringing a legal challenge

If a person feels they have been discriminated against by a school on the grounds of their disability they can bring a legal challenge under the EqA. The Ministry of Justice provides detailed guidance on bringing a disability discrimination claim against an education provider.

Different types of claims will be heard in different places:

  • Disability discrimination claims relating to admissions decisions made by state schools or academies are heard by independent admissions appeals panels
  • Disability discrimination claims relating to permanent exclusions from state schools or academies are heard by independent exclusion appeals panels
  • Disability discrimination claims relating to admissions decisions made by independent schools are heard by the First-tier Tribunal (Special Educational Needs and Disability) and in Wales by the Special Educational Needs Tribunal for Wales
  • Disability discrimination claims relating to permanent exclusions from independent schools are heard by the First-tier Tribunal (Special Educational Needs and Disability) and in Wales by the Special Educational Needs Tribunal for Wales
  • Disability discrimination claims about admissions arrangements or about terms being placed on a person’s admission to any type of school are heard by the First-tier Tribunal (Special Educational Needs and Disability) and in Wales by the Special Educational Needs Tribunal for Wales

Who can bring a discrimination claim?

In the context of schools, pupils, prospective pupils and, in some cases, ex-pupils can bring a discrimination claim. This includes pupils of state schools providing education for adults on either a full-time or a part-time basis. In England a child cannot bring a claim in their own right (unless they are in the sixth form) – it must be brought by their parent or guardian. From September 2013 it is intended that children in Wales will be able to bring disability discrimination claims against schools in their own right.

In the context of further and higher education providers students, prospective students and, in some cases, ex-students can bring a discrimination claim, as long as they are over the age of sixteen.

Time limits

Tribunal claims must be made within six months of the alleged discrimination (unless a complaint to the OIA has been made, in which case the time limit is extended by three months – see above). Where there has been a continuing process of discrimination taking place over a period of time, the six months begins at the date of the last discriminatory act.

In exceptional circumstances the Tribunal can (but does not have to) consider a claim which is out of time.

The Tribunal regulations set the time scale for the processing and hearing of claims including the deadline for sending in further information or evidence. This information is available from the Tribunal website and in guidance produced by the Tribunal. See www.tribunals.gov.uk and www.sentw.gov.uk.

Independent admissions appeal panels are organised by the local authority. The local authority is responsible for the timetable for the appeals and parents will be advised of the time limits and procedure at the same time as they are advised of the admission decision.

For England the rules and procedures for admission appeal panels are set out in detail in the Schools Admission Appeals Code produced by Department of Education and available from their website.

For Wales, the rules and procedures for admission appeal panels are set out in detail in the Schools Admission Appeals Code produced by the Welsh Assembly Government and available from their website.

Independent exclusions appeal panels are organised by the local authority. A parent has 15 school days from the receipt of the letter confirming the decision to exclude their child in which to appeal the decision. A disability discrimination claim forms part of the appeal and therefore must also be made within 15 school days.

For England the rules and procedure for independent exclusions appeal panels are set out in Part 5 of Improving Behaviour and Attendance: Guidance on exclusion from schools and Pupil Referral Units produced by Department of Education.

For Wales the rules and procedure for IAPs are set out in Part 4 of Guidance on Exclusion from Schools and Pupil Referral Units produced by the Welsh Assembly Government and available from their website.

Getting legal advice

A person bringing a discrimination claim may be able to obtain legal advice and/or representation through their insurance policy (for example, home contents), which may cover legal expenses. Not all policies will cover education legal advice.

Otherwise, free legal advice may be available from one of the following organisations:

  1. A local law centre with an employment or disability advisor. Law centres tend to be located in major towns and will be listed in the telephone directory or online. The Law Centres Federation can be contacted on 020 7842 0720 or at www.lawcentres.org.uk
  2. A disability advice centre, which is part of the DIAL network. They should be listed in the telephone directory, or can be contacted through DIALUK on 01302 310 123 or at www.dialuk.info
  3. A Citizens’ Advice Bureau that offers employment advice. Most towns have a CAB. They will be listed in the telephone directory, or you can contact the National Association of CABx on 020 7833 2181 or at www.citizensadvice.org.uk
  4. The Disability Law Service, which offers legal advice about discrimination in education and can offer casework support. They can be found at www.dls.org.uk or contacted on 020 7791 9800 or emailed at advice@dls.org.uk.

Alternatively a person seeking legal advice should see a solicitor specialising in discrimination and education (see below under Further Information). Public funding (legal aid) may be available for a disability discrimination claim against an education provider, if the eligibility criteria are met. A solicitor specialising in this area will be able to advise someone about whether they are eligible for public funding.

What happens if a discrimination claim is successful?

The Tribunal may make any order it thinks appropriate in an individual case, often with the intention of trying to repair the damage done to the disabled person and reduce any future disadvantage. For example, the Tribunal may order the school to apologise to the pupil, to carry out staff training on disability awareness and/or to change its policies and procedures.

The Tribunal cannot order the payment of compensation.

The independent admissions appeal panels can overturn the decision not to admit a pupil and order the pupil to be admitted to the school, or it can uphold the decision not to admit the pupil.

The independent exclusions appeal panels can:

  • Overturn the decision to exclude and order that the pupil be reinstated in the school
  • Overturn the decision to exclude but not order that the pupil be reinstated in the school
  • Uphold the exclusion.

Discrimination by judges or tribunals

Courts and tribunals must not discriminate in the way that they provide services (see tab above about Discrimination in the Provision of Services and Functions). However, judges in courts and tribunals are not bound by the EqA. If someone is concerned that a judge has acted in a discriminatory way, they can either make a complaint or, if the discrimination makes the judge’s decision in the case either legally inaccurate or biased against the disabled person, appeal the decision.

The Public Sector Equality Duty

Under Part 11 of the EqA education providers (including independent schools, academies, state schools, Pupil Referral Units and further and higher education bodies) have a duty to try and eliminate discrimination, harassment and victimisation, to advance equality of opportunity for people with a protected characteristic and to foster good relations between people who have a protected characteristic and people who do not.

This means that education providers should have regard to the need to promote equality of opportunity by:

  • Removing or minimising disadvantages suffered by people who have a protected characteristic
  • Taking steps to meet the needs of people who share a protected characteristic that are different from the needs of persons who do not have a protected characteristic
  • Encouraging people who share a protected characteristic to participate in public life or in any other activity in which participation by such people is disproportionately low. 

If someone is bringing a disability claim against an education provider they should consider whether the provider has complied with their public sector equality duty. If they have not, this can form part of the discrimination claim. 

Human rights and discrimination by public bodies

Education providers must act in accordance with human rights (see Human Rights IMT entry) and the prohibition of discrimination under Article 14 of the European Convention on Human Rights. This prohibition covers disability discrimination. This means that whenever the actions of an education provider engage human rights (such as the right to a private life under Article 8 or the right to practise a religion under Article 9), they must not behave in a discriminatory way.

If someone thinks that they are being discriminated against by an education provider they should seek legal advice as soon as possible. 

The Office of Disability Issues

The Office of Disability Issues (ODI) was set up in 2005 to coordinate disability policies across government. It is part of the Department of Work and Pensions and works closely with the Minister for Disabled People. The ODI drafts policies, advises the government on disability issues, undertakes research on disability issues and promotes the principles set out in the EqA, the Human Rights Act 1998 and the UN Convention on the Rights of Persons with Disabilities. 

The Equality and Human Rights Commission

The Equality and Human Rights Commission (EHRC) is a statutory body. This means that it was established by legislation and has a specific function. The EHRC is responsible for monitoring and protecting human rights in Britain, including by equality for people with disabilities or other protected characteristics. The EHRC does research, promotes good practice, takes legal cases and offers advice on human rights and discrimination. The EHRC has a helpline for those with dealing with human rights or discrimination issues (see below for details).

Detailed guidance on the EqA in the context of schools and further and higher education bodies has been produced by the Equality and Human Rights Commission. 

Further information

This legal briefing attempts to outline the key concepts of discrimination in education, as defined by the EqA. It is not a substitute for advice in any particular case. As mentioned above, there are some differences in the way that the law will apply depending on the circumstances and background to the alleged discrimination.

You can find out more about Mind’s Legal Unit on our website. For details on the kinds of cases that Mind might be able to assist with, please consult our Casework Criteria.

For general advice about discrimination and difficulties in education or training, please contact the Mind Legal Advice Service on 0300 466 6463 or legal@mind.org.uk

For more detailed advice on any of the issues discussed in this briefing, please consult a solicitor specialising in education law.

More specialist advice can be obtained from the following organisations:  

The Ministry of Justice detailed guidance on bringing a disability discrimination claim against an education provider, including the relevant forms.

The Law Society
www.lawsociety.org.uk
0870 606 2555  

Community Legal Advice
www.communitylegaladvice.org.uk
0845 345 4345  

The Equality and Human Rights Commission
www.equalityhumanrights.com

The Equality and Advisory Support Service       www.equalityadvisoryservice.com                                   FREEPOST, Equality Advisory Support Service, FPN4431
Telephone: 0800 444 205
Textphone: 0800 444 206
Monday to Friday, 9am to 8pm; Saturday, 10am to 2pm.
Text users can dial 0800 444 206 and Skype video BSL calls can access the helpline via the Royal Association for Deaf People. Details are on the website at www.radlegalservices.org.uk

The Disability Law Service
www.dls.org.uk
Email: advice@dls.org.uk
020 7791 9800  

Local law centres
www.lawcentres.org.uk/lawcentres/detail/find  

The Alliance for Inclusive Education (Allfie)
Allfie is a national network led by disabled people to promote inclusive education for all students. It provides a range of resources and training for educators and parents.
020 7737 6030
Email: info@allfie.org.uk  

The Council for Disabled Children (CDC)
The Council for Disabled Children provides an information service to parents and professionals on the needs of disabled pre-school children, pupils and students.
www.ncb.org.uk
020 7843 1900
Email: cdc@ncb.org.uk  

National Bureau for Students with Disabilities: Skill
Skill is a national charity promoting opportunities for young people and adults with any kind of impairment in post-16 education, training and employment.
www.skill.org.uk
020 7450 0620 
Email: skill@skill.org.uk 

Office for Standards in Education, Children’s Services and Skills (Ofsted)
www.ofsted.gov.uk
0300 123 4234
Email: enquiries@ofsted.gov.uk

The Department of Education has produced detailed guidance on the EqA and education.

IPSEA offers support and advice for parents and children in relation to schools admissions, including providing representation: www.ipsea.org.uk

Mind Legal Unit

August 2012

Disability discrimination in employment

Overview   

England and Wales have had laws against discrimination since the 1960s. The Race Relations Acts of 1965, 1968 and 1976 outlawed race discrimination, the Equal Pay Act 1970 and the Sex Discrimination Act 1975 outlawed gender discrimination and the Disability Discrimination Act 1995 outlawed disability discrimination.

In 2010 all anti-discrimination laws were brought together under one Act: the Equality Act 2010 (EqA). The EqA has applied in England and Wales since 1 October 2010. Discriminatory acts that took place on or after 1 October 2010, or that started before 1 October 2010 and continued after that date, will be covered by the EqA. Discrimination that took place before 1 October 2010 is covered by the Disability Discrimination Act 1995. For information about discrimination under the Disability Discrimination Act 1995, please email us.

Under the EqA it is unlawful to discriminate against someone who has a disability. The EqA provides protection against discrimination that happens at work, in the provision of services, public functions and premises, and in education. The EqA also deals with discrimination in associations. It does so by making discrimination unlawful in a number of ways, and by providing legal remedies to individuals who experience discrimination.

Protected characteristics

The EqA makes it unlawful to discriminate against someone on the basis of any ‘protected characteristic’ set out in the Act. The protected characteristics are:

  • Disability
  • Age
  • Gender reassignment
  • Marriage and civil partnership
  • Race
  • Religion or belief
  • Gender
  • Sexual orientation
  • Pregnancy and maternity

What is a disability under the EqA?

Section 6 of the EqA provides a definition of disability. In order for someone to show that there has been disability discrimination, they first have to show that they have a disability. Mind’s 'Proving Disability Checklist' can help with this process. For a copy, please email legalunit@mind.org.uk.

Under the EqA a person will be considered to have a disability if they:

  • Have an impairment that is either physical or mental; and
  • The impairment has substantial adverse and long-term effects on their ability to carry out normal day-to-day activities.

Impairment: It is not possible to give a complete list of impairments recognised under the EqA but they include developmental impairments such as dyslexia or autism, learning difficulties and mental health conditions such as depression, schizophrenia and bi-polar affective disorder. The EqA does not require someone’s mental health problem to be a clinically recognised mental illness in order for it to count as an impairment.

The first step is to show that someone has an impairment. This is normally quite straightforward. The second step is to show what effect the impairment has on their ability to carry out normal day-to-day activities.

Substantial adverse effect: A substantial adverse effect is something that is more than minor or trivial. When deciding whether an impairment has a substantial adverse effect on someone’s ability to carry out day-to-day tasks the following should be taken into consideration (this is not an exhaustive list):

  • The time it takes them to complete a task, compared with the time it would take someone without the impairment
  • The way they would complete task, compared with how someone without the impairment would complete the task
  • The cumulative effect of the impairment on their ability to carry out everyday tasks.

Under the EqA a person only needs to show that their impairment gives rise to adverse effects, not that those adverse effects impact on any particular capacity, such as a person’s memory or their ability to concentrate.

If someone is receiving treatment or medication for their disability that helps them carry out their daily activities, they may still be a person with a disability protected by the EqA. This will depend on whether their ability to carry out day-to-day tasks would be affected in a significant and adverse way if they stopped taking their medication or having treatment. If this is in doubt at any stage it might help to get a medical opinion on what the consequences of stopping treatment or medication would be on someone’s day-to-day activities.

Long-term: A long-term impairment is one:

  • Which has lasted at least 12 months; or
  • Which is likely to last at least 12 months; or
  • Which is likely to recur.

If someone has as mental health problem that fluctuates over time they may still be regarded as having a long-term impairment. If someone has episodes of mental illness that have a serious adverse affect on their ability to carry out daily activities and those episodes could well occur again, their mental illness are considered long-term for the purposes of the EqA.

The Office of Disability Issues (see 12 below) has published guidance on what may and may not be considered a disability under the EqA. Under section 6(5) of the EqA, courts and tribunals must take account of this guidance when they are deciding whether or not someone has a disability.

The Mind Legal Unit's 'Proving Disability Checklist' can help with proving whether someone has a disability. To request a copy, email legalunit@mind.org.uk.

Types of unlawful discrimination under the Equality Act

There are many situations in which someone may feel discriminated against because of their disability. In order to reflect this the EqA sets out different types of discrimination, referred to as ‘prohibited conduct’. Chapter 1 of Part 5 of the EqA sets out the duty on employers, service providers and others not to engage in prohibited conduct.

The EqA applies to all aspects of employment including recruitment, promotion, dismissal and redundancy. This means that employers must not discriminate in the arrangements made for deciding who should be offered a job, the terms on which the job is offered, access to opportunities at work, including promotion, transfer or training, and procedures for dismissal or redundancy.

If an employer discriminates against someone in any of the ways described below, they may face a legal claim from the person who has been discriminated against. The types of discrimination set out below are the ones that apply to disability discrimination (there are some variations for the other protected characteristics). It should be remembered that unfair treatment is not in itself discriminatory.  For unfair treatment to amount to discrimination, it must be related to a person’s disability in one of the ways described below.

Direct discrimination

Direct discrimination is where a person is treated less favourably than someone else because of their disability (section 13 EqA). In order to show that there has been discrimination, a person must demonstrate that there is a link between their disability and the way they were treated. For example, if a person is told that she will not be promoted because she has schizophrenia but that her colleague will be because she does not have any mental health problems, this would be direct discrimination. The person with schizophrenia has been treated less favourably than her colleague, and the reason for this is her disability.

In some cases there may not be any evidence that an employer has actually treated anyone else better than the person with a disability. In such cases the disabled person can still challenge the way that they have been treated by gathering evidence that shows how their employer would have acted towards a non-disabled person in that type of situation.

A person may be unlawfully discriminated against because of a disability even if they do not have a disability themselves. This might arise in two situations:

  1. A person may be discriminated against because of their connection or association with a disabled person. For example, if the non-disabled parent of a disabled child is treated less favourably because they have a disabled child
  2. A person may be discriminated against because there is a perception or belief that they are disabled, even if they are not. For example, if someone is assumed to have a mental health problem and is treated adversely as a result, this may amount to discrimination even if the person does not have a mental health problem.

Direct discrimination is difficult to prove. However, where there is evidence that direct discrimination has taken place, the discriminator will be held responsible for their unlawful action and will have no opportunity to justify why it acted that way.

A non-disabled person who is treated less favourably than a disabled person cannot bring a claim under the EqA. This recognises that in some circumstances disabled people may need to be treated in a more advantageous way (see 'Reasonable Adjustments' below) than non-disabled people. It is never unlawful for a disabled employee or job applicant or applicant to be treated more favourably than a non-disabled employee or job applicant.

Discrimination arising from disability

Section 15 of the EqA prohibits the unfavourable treatment of a disabled person where the reason for the unfavourable treatment is not the disability itself, but something that arises in consequence of the disability. An example of this is where someone is given a disciplinary warning because they have to take sickness related absences. The person has been absent because of their disability and so the employer’s decision to treat this as a disciplinary matter rather than adapt the absence procedures to take account of the employee’s disability may be discriminatory. Unlike direct discrimination, in this case there is no need for the disabled person to compare themselves with anyone else; they just need to show that they were treated unfavourably and that this treatment was linked to their disability.

If someone shows that they have been discriminated against for reasons arising out of their disability the employer will have an opportunity to justify the discrimination. Discrimination arising from disability can be justified if it is a proportionate way of achieving a legitimate aim. This means that an employer can justify this type of discrimination by showing that there was a good reason for it and that the action taken was reasonable. For example, an employer may be able to justify managing long sickness absences if it would be unworkable for the company to have a fully paid member of staff absent for long periods. However, the company must also consider making reasonable adjustments (see below).

An employer will not be found to have discriminated against a disabled person if they did not know about that person’s disability. However, if an employer had information that indicated that an employee had a disability, they will be treated as having known about that person’s disability at least from the time they had this information.

Understandably many people are concerned that disclosing a mental health condition will lead to discriminatory treatment. However, if a person does have a disability then they need to tell their employer about it in order to benefit from the protection of the EqA. This should serve as a reminder to an employer to treat the disabled employee fairly and appropriately and will put them on notice that failing to do so may be unlawful discrimination. For more on disclosing mental health problems to an employer, see How to bementally healthy at work.

Indirect discrimination

Under section 19 of the EqA a disabled person can argue that a practice or arrangement which appears to be neutral and non-discriminatory does in fact put them at a particular disadvantage compared to people who are not disabled. This is a new type of discrimination that did not exist under the Disability Discrimination Act 1995. Unlike discrimination arising from disability (see above), it does not matter whether an employer knew about an employee’s disability. This means that employers need to think ahead about the impact that their policies, practices and arrangements might have on disabled people.

If it is shown that an indirectly discriminatory practice exists, the employer may be able to justify it if it is a proportionate way of achieving a legitimate aim. This means that an employer can justify this type of discrimination by showing that there was a good reason for it and that the action taken was reasonable.

The duty to make reasonable adjustments

The law recognises that adjustments may need to be made in certain areas to help disabled people overcome barriers not faced by people who do not have disabilities. This duty arises when an employer knows (or should know) that an employee is disabled.

An employer is then expected to take proactive steps to comply with the duty to make reasonable adjustments. If there is uncertainty about whether an employee is disabled, the employer should ask for a medical opinion from a GP or from an occupational health specialist. If it is established that an employee is or is likely to be disabled, the GP or occupational health specialist may be able to identify the disadvantages experienced by the employee in the workplace, and the steps that could be taken to overcome them.

Employees will usually be expected to cooperate with this process but in return they can expect their employer to consider making adjustments to their working arrangements to help them at work.

Where a disabled employee faces substantial disadvantages in the workplace, the employer will need to make changes to the extent that it is reasonable which would help a disabled person to overcome the substantial disadvantage.

The duty to make reasonable adjustments is a positive one and employers are expected to be able to show that they have paid careful attention to meeting it.

An employer should consider all adjustments that may help the disabled person. These may include:

  • Making adjustments to the working area
  • Changing an employee’s working hours
  • Allowing an employee to work from home
  • Allowing an employee to be absent during work hours for rehabilitation, assessment or treatment
  • Providing additional supervision or support
  • Acquiring or modifying equipment
  • Transferring the employee to a different post or changing aspects of their job description
  • Temporarily re-allocating tasks that the employee is finding difficult or stressful
  • Allowing for time out during the working day
  • Providing extra training
  • Appointing a mentor or buddy for the person.

The employee does not need to come up with suggestions, but it may help to do so, and the employer must consider any reasonable adjustments that the employee proposes.

What is reasonable for the employer to do will be judged according to the following factors:

  • The extent to which the adjustment will prevent the problem
  • The extent to which it is practicable for the employer to make the adjustment
  • The size of the employer
  • The financial and other costs of making the adjustment, including disruption to any of the employer’s activities
  • The extent of the employer’s financial and other resources
  • The availability to the employer of financial or other assistance (see below) to make the adjustment.

It is important that an adjustment will help the employee to overcome the disadvantage. If it does not, it may not be considered reasonable by an Employment Tribunal. It is therefore important for a disabled employee to explain what would help and whether particular arrangements are working.

The employer cannot require an employee to contribute to the cost of making the reasonable adjustments, but grants and other funding will often be available to an employer from the Access to Work scheme.

Harassment

Section 26 of the EqA prohibits the harassment of people with disabilities. If an employer’s behaviour amounts to harassment a disabled person will be able to bring a discrimination claim against them.

Harassment is defined by the EqA as acting in a way that violates someone’s dignity or creates an environment that is intimidating, degrading or humiliating. This action must relate to the victim’s disability in order for it to be covered by the EqA. This might involve someone making fun of a disabled person, using abusive or derogatory language, or making light of their disability. Employers are also under a duty to prevent the harassment of their employees by third parties. For example, if a disabled person worked in a shop, their employer would be under a duty to prevent customers from harassing the person.

If harassment in the workplace is linked to someone’s disability, the person will be able to include harassment in a disability discrimination claim.

Victimisation

Under section 27 of the EqA a person can bring a victimisation claim if they have been victimised because of their disability. Victimisation means a person being placed at a disadvantage by their employer because they have made an allegation of discrimination, or supported someone else who has made an allegation of discrimination.

Pre-employment health questions

Lots of people have understandable concerns about the common practice of asking health questions as part of a job application process. Job applicants who have experienced mental health problems can be concerned about how answers to health questions might be interpreted by employers.

Under section 60 of the EqA it is unlawful for an employer to ask health questions in the recruitment process before a job offer is made. Hopefully this will ensure that applications are treated on merit and are unaffected by hidden stereotypes or prejudicial assumptions. If an employer does ask health questions before a job offer is made the applicant cannot bring a legal claim against them (only the Equality and Human Rights Commission can do this – see below).

The Equality and Human Rights Commission has produced useful guidance on the operation of section 60 of the EqA, which gives examples of lawful and unlawful practices and offers advice on what to do if an employers acts unlawfully. There are two sets of guidance: one for employers at www.equalityhumanrights.com/uploaded_files/EqualityAct/pre-employment_health_questions_guidance_for_employers_final.pdf and one for job applicants at www.equalityhumanrights.com/uploaded_files/EqualityAct/pre-employment_health_questions_guidance_for_job_applicants_final.pdf. 

There is also a research report that looks at the use of pre-employment health questions by employers, available here: http://www.equalityhumanrights.com/uploaded_files/research/rr87_final.pdf.

However, if questions about a disabled applicant’s health have been asked at an interview and the applicant does not get the job, a court or tribunal will look very carefully at the employer’s decision making if the job applicant brings a legal claim. The employer will be required to prove that the decision not to employ the applicant was not linked to their disability. This should make it easier for an unsuccessful job applicant to win a discrimination claim using section 13 or section 15 of the EqA (see above).

There are certain circumstances where it is still permissible for an employer to ask job applicants about their health before a job offer is made. Those circumstances are:

  • Establishing whether the applicant will be able to comply with a requirement to undergo an assessment for the job or establishing whether the employer will be under a duty to make reasonable adjustments for the applicant.
  • Establishing whether the applicant will be able to carry out a function that is intrinsic to the job in question. However, questions that try to assess someone’s ability to do a particular task need to take account of whether reasonable adjustments could be made to the job role that would help the applicant.
  • Monitoring the diversity of the applicants.
  • Establishing whether the applicant has a particular disability if the job requires the presence of that disability.
  • Vetting the applicant for national security purposes.

It is still relevant for an employer to ask health questions after a job offer has been made and so the practice of job offers being conditional on references and health assessments will continue. If a job offer is then withdrawn following a health assessment and the applicant thinks this is because of their disability, they will have strong evidence to show that the employer was unlawfully discriminating. Contact Mind’s Legal Advice Service or seek advice from a solicitor.

Challenging discrimination in the workplace

If a person thinks that they have been discriminated against at work there are a number of options open to them. First, they may try to resolve the problem by talking informally with their colleagues, manager or human resources department. Trade unions may be able to assist with this. Secondly, they may want to raise a formal grievance using the employer’s grievance procedure. Finally, they may want to bring a legal claim in the employment tribunal. Read the EHRC's useful information for people considering bringing a claim in the tribunal.

The Employment Tribunal

An individual who feels that they have been discriminated against by their employer in any of the ways discussed above can bring a legal claim in the Employment Tribunal. 

Who can bring a discrimination claim?

An employee, apprentice, former employee, contract worker or job applicant who feels that they have been discriminated against by their employer, a colleague or a third party in the course of their employment, can bring a discrimination claim in the Employment Tribunal.

Volunteers are not generally protected from discrimination under the EqA although they might be able to argue that they should be in certain cases, for example if they receive a fee or certain employment benefits. However, recent case law has not been helpful in extending protection to volunteers.

Time limits

An application to the Employment Tribunal must be made within three months less one day of the discrimination that is being complained about. This is particularly important if there is a single discriminatory act on a particular date. In some cases there may be a series of matters or ongoing poor treatment that amount to discrimination, the three month time limit will run from the last of these.

An application to the Employment Tribunal after the three month time limit has passed may occasionally be possible. The person bringing the claim will need to show that there are good reasons for the claim being late, for example, by showing that the effects of their disability prevented the claim from being brought sooner. The Employment Tribunal may allow a late claim to be brought if it thinks it is fair to do so.

If someone feels that they may have been discriminated against by their employer they should seek legal advice as soon as possible.

Discrimination questionnaire

It is often advisable to use a discrimination questionnaire (known as a DL56) to help clarify the issues that are causing concern and to seek an initial response from the employer. An employee or job applicant can complete a questionnaire and send it to the employer as soon as they become aware of discriminatory treatment. If the employer responds this may help to identify the strengths and weaknesses of a legal claim and may lead to discussions to try to settle a claim at an early stage. If the employer fails to respond this may reflect badly on them in the event of a legal claim. It is a good idea to get advice on how to complete the questionnaire.

Getting legal advice

A person bringing a discrimination claim may be able to obtain legal advice and/or representation through their trade union or their insurance policy (for example, home contents), which may cover legal expenses. Not all policies will cover employment legal advice but a surprising number do.

Otherwise, free legal advice may be available from one of the following organisations:

  1. A local law centre with an employment or disability adviser. Law centres tend to be located in major towns and will be listed in the telephone directory or online. The Law Centres Federation can be contacted on 020 7842 0720 or at www.lawcentres.org.uk
  2. A disability advice centre, which is part of the DIAL network. They should be listed in the telephone directory, or can be contacted through DIALUK on 01302 310 123 or at www.dialuk.info
  3. A Citizens’ Advice Bureau that offers employment advice. Most towns have a CAB. They will be listed in the telephone directory, or you can contact the National Association of CABx on 020 7833 2181 or at www.citizensadvice.org.uk
  4. The Disability Law Service, which offers legal advice about discrimination in education and can offer casework support. They can be found at www.dls.org.uk or contacted on 020 7791 9800 or emailed at advice@dls.org.uk.
  5. LawWorks, which offers legal advice to individuals who are not eligible for public funding: www.lawworks.org.uk/
  6. The Free Representation Unit, which provides free legal representation for employment cases that are referred to it by other legal services providers (such as a law centre or Citizens’ Advice Bureau): www.thefru.org.uk.
  7. ACAS offers free legal advice on employment issues: www.acas.org.uk and 08457 47 47 47.

In some circumstances publicly funded assistance may be available for a solicitor to prepare someone’s discrimination claim. This will depend on whether the person satisfies the eligibility criteria. Solicitors who specialise in employment law and take publicly funded cases are listed on the Community Legal Advice website (see below) and the Law Society website (see below).

However, publicly funded representation is not available at any employment hearing. Solicitors may consider a ‘conditional fee agreement’, often known as a ‘no win, no fee’ agreement, if you have a strong case but cannot afford to pay privately.

Compensation and recommendations

If someone wins their discrimination claim in the Employment Tribunal they may be awarded financial compensation. This may be for financial loss, injury to feelings and/or injury to health.

The Tribunal may also make recommendations about how an employer should remedy discriminatory treatment in the workplace in the future.

Discrimination by judges or tribunals

Courts and tribunals must not discriminate in the way that they provide services. This means that they must make reasonable adjustments if required. However, judges in courts and tribunals are not bound by the EqA. If someone is concerned that a judge has acted in a discriminatory way, they can either make a complaint or, if the discrimination makes the judge’s decision in the case either legally inaccurate or biased against the disabled person, appeal the decision.

The Public Sector Equality Duty

Under Part 11 of the EqA public sector employers (such as NHS hospitals, government departments, local authorities and the police) have a duty to try and eliminate discrimination, harassment and victimisation, to advance equality of opportunity for people with a protected characteristic and to foster good relations between people who have a protected characteristic and people who do not.

The duty requires public sector employers to have regard to the need to promote equality of opportunity by:

  • Removing or minimising disadvantages suffered by people who have a protected characteristic
  • Taking steps to meet the needs of people who share a protected characteristic that are different from the needs of persons who do not have a protected characteristic
  • Encouraging people who share a protected characteristic to participate in public life or in any other activity in which participation by such people is disproportionately low. 

If someone is bringing a disability claim against a public sector employer they should consider whether the employer has complied with their public sector equality duty. If they have not, this can form part of the discrimination claim.

Human rights and discrimination by public bodies

Public sector employers must act in accordance with human rights (see Mind legal briefing Human Rights) and the prohibition of discrimination under Article 14 of the European Convention on Human Rights. This prohibition covers disability discrimination. This means that whenever the actions of a public sector employer engage human rights (such as the right to a private life under Article 8 or the right to practise a religion under Article 9), they must not behave in a discriminatory way.

If someone thinks that they are being discriminated against by a public sector employer they should seek legal advice as soon as possible.

The Office of Disability Issues

The Office of Disability Issues (ODI) was set up in 2005 to coordinate disability policies across government. It is part of the Department of Work and Pensions and works closely with the Minister for Disabled People. The ODI drafts policies, advises the government on disability issues, undertakes research on disability issues and promotes the principles set out in the EqA, the Human Rights Act 1998 and the UN Convention on the Rights of Persons with Disabilities.

The Equality and Human Rights Commission

The Equality and Human Rights Commission (EHRC) is a statutory body. This means that it was established by legislation and has a specific function. The EHRC is responsible for monitoring and protecting human rights in Britain, including by equality for people with disabilities or other protected characteristics. The EHRC does research, promotes good practice, takes legal cases and offers advice on human rights and discrimination. The EHRC also has the power to challenge employers who ask unlawful pre-employment health questions (see above). The EHRC has a helpline (until September 2012) for those with dealing with human rights or discrimination issues (see below for details).

A detailed Code of Practice on the EqA in the context of employment has been produced by the Equality and Human Rights Commission.

Further information

This legal briefing attempts to outline the key concepts of discrimination in employment, as defined by the EqA. It is not a substitute for advice in any particular case. As mentioned above, there are some differences in the way that the law will apply depending on the circumstances and background to the alleged discrimination.

Please read more about the work of Mind’s Legal Unit, or ask for a hard by calling 020 8519 2122. For details on the kinds of cases that Mind might be able to help with, please read our Casework Criteria.

For general advice about discrimination and difficulties at work, please email the Mind Legal Advice Service or call us on 0300 466 6463.

For more detailed advice on any of the issues discussed in this briefing, please consult a solicitor specialising in employment law.

More specialist advice can be obtained from the following four organisations:

The Law Society
www.lawsociety.org.uk
0870 606 2555

Community Legal Advice
www.communitylegaladvice.org.uk
0845 345 4345

The Equality and Human Rights Commission
www.equalityhumanrights.com

The Equality and Human Rights Commission have produced guidance on pre-employment health questionnaires under section 60 of the Equality Act. The guidance for job applicants is available here: www.equalityhumanrights.com/uploaded_files/EqualityAct/pre-employment_health_questions_guidance_for_job_applicants_final.pdf and the guidance for employers is available here: www.equalityhumanrights.com/uploaded_files/EqualityAct/pre-employment_health_questions_guidance_for_employers_final.pdf

The Equality and Advisory Support Service       www.equalityadvisoryservice.com
FREEPOST, Equality Advisory Support Service, FPN4431
Telephone: 0800 444 205
Textphone: 0800 444 206
Monday to Friday, 9am to 8pm; Saturday, 10am to 2pm.
Text users can dial 0800 444 206 and Skype video BSL calls can access the helpline via the Royal Association for Deaf People. Details are on the website at www.radlegalservices.org.uk

ACAS
www.acas.org.uk
08457 47 47 47

The Disability Law Service
www.dls.org.uk
advice@dls.org.uk
020 7791 9800

Alternatively, you could contact your local law centre or Citizens Advice Bureau, or the Free Representation Unit, who may be able to help.

Mind Legal Unit
January 2013

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