Equality Act 2010

A person is described as having a disability in the Act when 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'.

What is a 'mental impairment'?
There is not a strict definition of mental impairment in the Equality Act, but there is an emphasis on the symptoms of an illness rather than the diagnosis itself.

What is meant by 'substantial and long term'?
The effect of the condition is substantial when it is more than minor or trivial. The effect is long-term when it has either lasted at least 12 months, is expected to last 12 months or for the rest of a person's life. There are specific rules covering conditions which affect a person from time to time, where there are periods in-between when the person is not affected.

What kinds of discrimination are there?

Direct discrimination

Direct discrimination is where someone treats a person less favourably than other people because of a disability.  To prove direct discrimination, a person needs to show that they have been treated less favourably than a “comparator”.  A comparator is someone who is in the same situation but who does not have a disability.

Indirect discrimination

This is where there is a “provision, criterion or practice” that applies to everyone but that disadvantages disabled people.  This includes all rules and policies that a service provider has that affect disabled people.  A rule that disadvantages disabled people will be discriminatory unless it can be shown that it is a “proportionate means of achieving a legitimate aim”, meaning a fair way of trying to achieve something worthwhile.

Discrimination Arising From Disability    

This is where someone has been treated unfavourably because of something that arises as a consequence of their disability, and it can not be shown that this is a proportionate means of achieving a legitimate aim. 

Failure to Make “Reasonable Adjustments”    

A service provider or employer may be under a duty to make changes for disabled people if this will make the organisation more accessible.  This is called the duty to make reasonable adjustments.

Harassment         

This is unwanted behaviour with regard to an individual’s disability that has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. 

Victimisation        

The Equality Act protects people who have made a complaint about discriminatory treatment they have received.  A person should not be treated badly for trying to enforce their rights under the Act.

What exactly is a “proportionate means of achieving a legitimate aim”?

Some kinds of discrimination cannot be justified.  For example, a service provider cannot justify directly discriminating against a disabled person.  However, in indirect discrimination and discrimination arising from a disability, a service provider can justify the effect that their behaviour has on a disabled person if it is a “proportionate means of achieving a legitimate aim”.  A rule that can be justified in this way may still have a big impact on disabled people, but the law says that these rules are fair and legal.  This is sometimes called ‘objective justification’.

A “legitimate aim” is not defined by the Act, but a wide range of aims could be considered legitimate.  Legitimate aims could include the health and safety of staff or service users, the business needs of the service, or the requirement to make a profit.  A legitimate aim must not be discriminatory.

“Proportionate” means that there must be a fair balance between the needs of the service and the needs and rights of the person who may be discriminated against.  The method used should be an appropriate and necessary way of achieving the aim and be the least discriminatory way possible of achieving the aim.