Discrimination arising from disability

The following Employment practice note provides comprehensive and up to date legal information covering:

  • Discrimination arising from disability
  • What amounts to discrimination arising from disability
  • Treating someone 'unfavourably'
  • Treatment because of something arising from, or in consequence of, the disabled person's disability
  • Justification
  • The relationship between justification and unfair dismissal reasonableness
  • Knowledge of the disability
  • No associative discrimination or discrimination on the basis of perception

Discrimination arising from disability

This Practice Note covers an Equality Act 2010 provision which had no equivalent under the law which applied before 1 October 2010.

What amounts to discrimination arising from disability

A person discriminates against a disabled person if:

  1. he treats the disabled person unfavourably because of something arising from, or in consequence of, that disabled person’s disability, and

  2. he cannot show that the treatment is a proportionate means of achieving a legitimate aim, and

  3. he knew, or could reasonably have been expected to know, that the disabled person had the disability

This provision is of relevance where a disabled person is treated unfavourably because of something arising from, or in consequence of, his disability, such as the need to take a period of disability-related absence, rather than because of the disability itself.

Treating someone 'unfavourably'

In Williams it was held that unfavourable treatment is different from a 'detriment'. It means placing a hurdle in front of, or creating a particular difficulty for, or disadvantaging a person but the threshold is relatively low. It is necessary first to identify the relevant treatment that is said to be unfavourable. A broad view is to be taken when determining what is ‘unfavourable’ and the treatment at issue is to be measured against an objective sense of that which is adverse as compared with that which is beneficial. Persons may be

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