Work to rule: Disability discrimination

Any of several impairments can mean an employee is defined as disabled.

The Disability Discrimination Act 1995 prohibits discrimination against disabled people, and employers must consider its content.

A person has a disability under the act if he or she has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.

The effect of an impairment is defined as long-term if it has lasted 12 months, or if it is likely to last at least that long. It is also defined as long-term if it is likely to last for the rest of the affected person's life, or if it is likely to recur if in remission. An impairment will be taken to affect the ability to carry out normal day-to-day activities only if it affects mobility, manual dexterity, physical coordination, continence or the ability to move everyday objects. Impairments to speech, hearing, eyesight, memory or a person's ability to concentrate, learn or understand, or perception of the risk of physical danger, are also valid.

Certain conditions are excluded from the protection of the act. These include an addiction to alcohol, nicotine or any other substance (other than as a consequence of the substance being medically prescribed). Personality disorders such as kleptomania, exhibitionism and voyeurism are also excluded. However, where an employee suffers from both a legitimate impairment and an excluded condition, he or she will be able to rely on the protection of the act where the legitimate impairment is the reason for less favourable treatment.

Individuals with cancer, HIV or multiple sclerosis are deemed to be disabled without having to show they have an impairment.

Although some conditions, such as chronic fatigue syndrome or ME, asthma, epilepsy, dyslexia and depression are capable of amounting to a disability, this will not always be the case. It will be up to a tribunal to determine whether the condition has a substantial and long-term adverse effect on the individual's ability to carry out normal day-to-day activities.

Care providers will find that, in most cases, it is clear-cut whether a person has, or has had, a disability. However, it will not always be so obvious. In these circumstances, it is useful to refer to the Government's guidance on matters to be taken into account in determining questions relating to the definition of disability. It sets out how the definition of disability operates in practice and is available on the Disability Rights Commission's website.

- Emma Burrows is a partner and head of the employment group at Trowers & Hamlins solicitors.

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