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Disability discrimination

redarrow Return to the main Disability Discrimination Section
redarrow Who is a disabled person for the purpose of the Disability Discrimination Act?
redarrow Duty to provide reasonable adjustments

Who is a disabled person for the purpose of the Disability Discrimination Act

Schedules 1 and 2 of the Disability Discrimination Act deal primarily with the identification of the meaning of who is disabled and who is not disabled for the purpose of the Act.
Section 1 of the Disability Discrimination Act defines disability as follows “A person has a disability for the purpose of this Act if he has a physical or mental impairment which has a substantial and long term adverse affect on his ability to carry out normal day-to-day activities”.

A short definition which is a working definition can paraphrase this as being it must have a substantial affect on someone’s day-to-day activities and it must be capable of lasting longer than one year. The condition itself, in other words has to be a long term condition which is capable of lasting longer than a year, which must have a substantial affect on the ability for the person to perform normal day-to-day activities.

Examples would include physical disabilities like wheelchair users. Other disabilities like those suffering with severe back problems, unable to lift more than say 2 kg, are more subtle disabilities which are less obvious. The Act then goes on to state “for the purpose of establishing whether someone has a disability, the treatment that they are under, should be disregarded”. That then brings into play people who suffer from epilepsy, people who are diabetics because the epilepsy treatment they are under may mask if not totally prevent that person from suffering from fits. Again, those who are diabetic have their condition under control through use of insulin. The treatment clause can bring into play other people that you would not necessarily think of being disabled for the purpose of the Act such as those people who are suffering with mild asthmas, people who suffer from osteoporosis, arthritis, the list is fairly extensive.

In my view, most employers employ disabled people without being aware of their disability necessarily. Your employer is only obliged to provide reasonable adjustments when they have knowledge that the person has got a disability. There are a number of cases on what constitutes knowledge but in a simplified form, it does not mean that there is a direct knowledge that the person has a disability that has been confirmed by a doctor. It means no reasonable person would be unaware of the fact that disability could be an issue. I am tempted to paraphrase some complex law on this matter but this is appropriate to go into on a web page of this nature. I would always advise that if you have a feeling that you may be disabled for the purposes of the Disability Discrimination Act, then the lawyer representing you would necessarily have to get a medical report to confirm whether you meet the criteria or not.

Certain types of condition have been deliberately excluded from the Act such as tendencies to light fires i.e. an arsonist, tendency to steal through a psychiatric problem i.e. a kleptomania or suffer from or be dependent on a non-prescribed drug such as say heroin, crack cocaine etc. This does not mean that a condition caused by the dependency could not in itself amount to a disability for the purpose of the Act.

example

If over drinking results in a person suffering from liver problems, provided those problems were long term had a substantial affect on someone’s day-to-day activities then the person would still be disabled for the purpose of the Act.

Another example would be if someone who suffers from a mental impairment which was recognised as a proper impairment under the criteria as a symptom of that mental impairment, the person was abusive and also stole. That might be a combination of a condition known as “turrets”. Now the condition of turrets where someone swears and has uncontrollable outbursts normally does not include kleptomania but there is nothing to say that the person could not have the combination of two and one could amount to a disability and one would not.

I have briefly skimmed through the issue of the definition of disability and there are a number of areas I have left as being too complex to discuss here. The basic issues that should be addressed:

  • Is the condition long term?
  • Is the condition having a substantial affect on normal activities such as doing household chores, walking up and down stairs, walking distance, lifting say small weights such as shopping, children, doing basic gardening etc.

If the answer to both those questions is yes, then there is a reasonable likelihood that it could amount to disability.

The definition also extends to a number of unusual conditions that in themselves do not have a physical substantial affect on day-to-day activities. That would include people who are disfigured. The Act specifically includes people who are disfigured to protect them from discrimination. People who have a progressive condition such as say ME, HIV only need to show the condition is having some effect. It need not be substantial with progressive conditions.

The Act also includes people who have suffered from past disabilities who are no longer disabled but are suffering a detriment because of their past disability that would include people who suffer say in the past from hepatitis and there is a pathological concern by the workforce that that person may still carry the condition.

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If you are considering going to an Employment Tribunal then see our Employment Tribunal pages.
If you are facing Constructive Dismissal, visit our Constructive Dismissal pages.
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If you are losing your job due to Capability then visit our Capability pages.
If you think you may be suffering from disability discrimination then visit our disability discrimination pages.
If you are being asked to sign a Compromise Agreement, then visit our Compromise Agreement pages.
If you are being put on Garden Leave then please see our Garden Leave pages

 


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