The Equality Act and the DDA cover various types of discrimination. In this section, we’ve given examples to show how these types of discrimination can affect people.
Direct discrimination is when, because of their disability, a person receives less favourable treatment compared with someone who doesn’t have that particular disability.
Legislation helps to protect people who have a disability from being dismissed, refused a job, or being treated less favourably than people without a disability because people assume they can’t carry out their job or certain tasks.
Direct discrimination can happen even if it is meant with good intentions. For example, if an employer suggests that a person with cancer would be better off not being promoted because the new job would be too demanding, this is direct discrimination. However, it would be appropriate to have a sensitive conversation with an employee about the impact of a new role on their health.
Razia was rejected when she applied for a job because her employer knew that she had previously had a cancer diagnosis. The employer was concerned that if it came back, she would have to take sick leave
Discrimination arising from disability (applies in England, Scotland and Wales)
Discrimination arising from disability (DAD) applies under the Equality Act, but not the DDA. That means it doesn’t apply in Northern Ireland. It is when someone with a disability is treated less favourably because of something relating to their disability. It’s different from direct discrimination, which occurs when a person is treated less favourably because of the disability itself. For something to be classed as direct discrimination, you need to show that a non-disabled person would have been treated differently, but with DAD, you don’t.
DAD is unlawful when the unfavourable treatment can’t be justified. In some cases, where there is a justifiable reason for it, DAD is allowed. DAD is lawful when you can prove it is meant to meet a real objective in a fair, balanced and justifiable way, and when any reasonable adjustments have been considered.
It is unlikely to be easy for an employer to defend their reasons for DAD and for it to be justified. Usually, any potentially unfavourable treatment can be overcome by making reasonable adjustments. So, assessing whether DAD is justifiable is likely to involve considering whether any adjustments could have been made.
DAD will also be lawful if the employer can show that he or she didn’t know, and couldn’t be reasonably expected to know, that the person is disabled. Before an employer can use this to defend themselves, they must have taken all reasonable steps to find out if someone has a disability.
Daffyd’s boss gave him a poor appraisal because he had missed targets due to his treatment and cancer-related fatigue. Even if the employer treated other people in the same way for missing their targets, it would be unlawful to treat Daffyd like this, unless the employer could show that the action was justified under the Equality Act.
Indirect disability discrimination (applies in England, Northern Ireland, Scotland and Wales)
Indirect disability discrimination applies under both the Equality Act and the DDA. It is when there is a rule, policy or practice that applies to everyone, but that puts people with a particular disability at a disadvantage compared with people who don’t have that disability.
As with DAD, a rule or practice may still be lawful if it can be proved that its aim is to meet a legitimate objective in a fair, balanced and reasonable way, and that any reasonable adjustments have been considered.
Employers need to strike a balance between the negative impact of rules or practices on some people, and the reasons for applying them. Employers therefore need to consider whether there is any other way to meet their objectives that won’t have a discriminatory effect. If you’re unsure, specialist legal advice relating to employment law is available. Contact the Law Society of England and Wales, the Law Society of Scotland or the Law Society of Northern Ireland.
Kathleen’s company needed to make some redundancies. The company uses the amount of sick leave taken as selection criteria for redundancy. As Kathleen had taken time off work because of cancer, she and other people with cancer were at a disadvantage in comparison with people who had not had cancer. This is indirect discrimination unless the employer could show that it could be legally justified.