What counts as a disability in law?
Disability is not always obvious. The Equality Act 2010 defines a person as disabled if they have a
- physical or mental impairment
- that has a
- substantial and long-term
- adverse effect
- on a person’s ability to carry out normal day-to-day activities.
- ‘Normal day-to-day’ means things that people do on a regular or daily basis, such as reading, writing, using the telephone, having a conversation and travelling by public transport .
- ‘Long-term’ usually means the impairment should have lasted or be expected to last at least a year.
- ‘Substantial’ means not minor or trivial.
The key thing is not the impairment but its effect. Some people don’t realise that impairments such as migraines, dyslexia, asthma and back pain can count as a disability if the adverse effect on the individual is substantial and long-term. Some conditions automatically count as disabilities for the purposes of The Equality Act 2010, from the point of first diagnosis – these are cancer, HIV and multiple sclerosis (MS).
Treating disabled people fairly: Avoiding discrimination
It is discrimination to treat a disabled person unfavourably because of something connected with their disability (eg a tendency to make spelling mistakes arising from dyslexia). This type of discrimination is unlawful where the employer or other person acting for the employer knows, or could reasonably be expected to know, that the person has a disability. More information on disability discrimination is available from the Equality and Human Rights Commission (EHRC) website .
Disability equality in the public sector
Public authorities and public, private or voluntary organisations carrying out public functions have a new Equality Duty. In summary, those subject to the duty must, in the exercise of their functions, have due regard to the need to:
- Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.
- Advance equality of opportunity between people who share a protected characteristic and those who do not.
- Foster good relations between people who share a protected characteristic and those who do not.
The EHRC website provides more information on the public sector equality duty
Making reasonable adjustments
Employers are required to make ‘reasonable adjustments ‘ to jobs and workplaces for disabled workers. This is to ensure disabled people have equal opportunities in applying for and staying in work. Workplace adjustments may also be made on a temporary basis.
Reasonable adjustments may include:
- adjustments to the workplace to improve access or layout;
- giving some of the disabled person’s duties to another person, eg employing a temp;
- transferring the disabled person to fill a vacancy;
- changing the working hours, eg flexi-time, job-share, starting later or finishing earlier;
- time off, eg for treatment, assessment, rehabilitation;
- training for disabled workers and their colleagues;
- getting new or adapting existing equipment, eg chairs, desks, computers, vehicles;
- modifying instructions or procedures, eg by providing written material in bigger text or in Braille;
- improving communication, eg providing a reader or interpreter, having visual as well as audible alarms;
- providing alternative work (this should usually be a last resort).
Confidentiality and data protection
Revealing a disability
If a disabled person expects an employer to make a reasonable adjustment, they will need to provide the employer with enough information to carry out that adjustment. Disabled people have a right to confidentiality and an employer must not disclose confidential details about them without their explicit consent.
The Data Protection Act 1998 places duties on employers to ensure confidential and appropriate handling of ‘sensitive personal data’, which includes data about a person’s health.
The Data Protection Act also gives individuals the right to see personal data and information held or processed about them, provided they request it in writing. This provision is important in accessing personal information relating to a risk assessment.
Who has health and safety responsibilities?
Health and safety laws place duties on everyone concerned with work activities.
- Employers have a general duty to take reasonably practicable measures to protect workers, and those affected by their work activities, from the risk of injury or harm at work. They must also provide workers with the information, instruction, training and supervision required to ensure their health, safety and welfare at work.
- Employers also have specific duties depending on the nature of their business.
- Employees must look after themselves and look out for others who may be affected by their work activities. They must also co-operate with their employers on health and safety.
The law does not expect employers to eliminate all risk, but they are required to protect people as far as ‘reasonably practicable’. This is a legal concept which means balancing the level of risk against the measures needed to control the risk in terms of money, time or trouble. HSE has set out some principles of sensible risk management.