Under the Disability Discrimination Act 1995, it amounts to unlawful disability discrimination if an employer:
- Treats a disabled employee or job applicant less favourably than others because of their disability eg an employer refuses to employ someone even though they are suitable for the job, simply because they are a wheelchair user. This is direct disability discrimination, which can never be justified.
- Treats an employee or job-seeker less favourably than an appropriate comparator for a reason related to their disability eg an employer dismisses an employee primarily because of their high long-term absence levels but in a situation where the absence is related to their disability. This is referred to as disability-related discrimination. The appropriate comparator in these cases is a non-disabled person who is otherwise in a similar position to the disabled employee (e.g. a non-disabled employee with a similar absence record). However, the employer may be able to justify this type of discrimination in certain circumstances. This type of discrimination cannot arise if the employer didn't know and couldn't reasonably have been expected to know that the person had the disability.
- Fails to comply with its duty to make a reasonable adjustment for a disabled employee/job applicant. This type of discrimination cannot be justified and will be unlawful. However, the employer is not required to make reasonable adjustments if the employer doesn't know - or could not reasonably be expected to know - that the employee/applicant is disabled and is likely to be placed at a substantial disadvantage compared with non-disabled people. However, the employer must do all it can reasonably be expected to do to find out whether this is the case.
- Subjects a disabled employee to disability-related harassment eg making derogatory comments about disabled people generally, or making fun of an employee’s particular disability.
Victimisation is also unlawful discrimination under the Act, ie it is unlawful for an employer to treat an employee (the victim - whether a disabled or non-disabled person) unfairly because they have, or the employer believes they have:
- brought proceedings, or given evidence or information in connection with proceedings brought under the Act
- done anything else under the Act
- alleged someone has contravened the Act
For example, a disabled employee alleges discrimination because his employer refuses to promote him. A colleague gives evidence at the tribunal on the disabled employee's behalf and, as a result, the employer makes the colleague redundant. This amounts to unlawful victimisation (as well as unfair dismissal).
The law also makes it unlawful to discriminate against a person because they associate with someone who is disabled.
What counts as a disability?
In general, the Disability Discrimination Act 1995 considers someone to be disabled for the purposes of the Act if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
However, there are special rules for assessing whether people with progressive or recurring conditions meet the definition. Also, some people are automatically deemed to be disabled people, ie but only those with HIV infection, cancer and multiple sclerosis and those with severe disfigurements.
Certain conditions are not regarded as impairments for the purposes of the Act, eg drug or alcohol addiction or a tendency to start fires, steal or physically abuse others or visual impairments that are easily correctable by wearing glasses or contact lenses. The rule excluding drug addiction does not, however, exclude addiction to properly prescribed medications.
For more on discrimination law in general, see equality law and types of discrimination.
Employers have a legal duty to make reasonable adjustments to any provision, criterion or practice, or to physical features of their premises, to enable a disabled person to work or continue working if they would otherwise be at a substantial disadvantage compared with non-disabled workers.
Reasonable adjustments often involve little or no cost to your business. See how to provide access and facilities for disabled people.
In addition, Disability Action's Hard at Work report highlights key actions needed to increase equality in employment for disabled people in Northern Ireland.