Disability discrimination

A general guide on how you are protected from discrimination under the Equality Act and what your rights are. Applies to England and Wales.

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What are the different types of discrimination?

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

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

Direct discrimination

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

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

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

Examples of direct discrimination

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

Discrimination arising from disability

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

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

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

Situations when unfavourable treatment might not be discrimination

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

  • there were valid intentions behind their action (such as ensuring the health and safety of others, or keeping up staff attendance so that their business can run properly), and that it was an appropriate action to take in the circumstance.  Legally this is called a 'justification'.

or

  • they did not know you had a disability (and could not reasonably have known).

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

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

Indirect discrimination

Indirect discrimination is where:

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

Examples of indirect discrimination

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

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

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

Harassment

Harassment is behaviour that you don’t want that:

  • violates your dignity or creates an environment that is intimidating, degrading, offensive or humiliating, and
  • is aimed at you just because you have a disability

Examples of harassment

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

Victimisation

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

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

Examples of victimisation

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

Making reasonable adjustments

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

Reasonable adjustments include:

  • making changes to the way things are organised or done
  • making changes to the built environment, or physical features around you (for example physical features of a building that put a disabled person at substantial disadvantage)
  • providing aids and services for you to overcome the substantial disadvantage
  • How and exactly when it applies depends on the context.
  • You cannot be asked to pay for the cost of reasonable adjustments.
  • If a person or organisation does not make reasonable adjustments when it would have been reasonable to do, this will be unlawful discrimination.

To find out more, see our pages on reasonable adjustments you could ask for from:

Examples of reasonable adjustments

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

 


This information was published in July 2017. We will revise it in 2019.


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