The Equality Act 2010 says that you must not be discriminated against because:
- You have a disability.
- Someone thinks you have a particular disability. This is known as discrimination by perception.
- You are connected to someone with a disability. This is known as discrimination by association.
In the Equality Act a disability means a physical or a mental condition which has a substantial and long-term impact on your ability to do normal day to day activities.
You are also covered by the Act if you have a progressive condition like HIV, cancer and multiple sclerosis, even if you are currently able to carry out normal day to day activities. You are protected as soon as you are diagnosed with a progressive condition.
You are also covered by the Act if you had a disability in the past.
- For example, if you had a mental health condition in the past which lasted for over 12 months, but you have now recovered, you are still protected from discrimination because of that disability.
The Act does not protect non-disabled people from discrimination. So it is not discrimination to treat a disabled person more favourably than someone who is not disabled or someone who does not have the same disability.
For example, if an employer decides to offer an apprenticeship to a disabled student. People who wanted to have the opportunity to be an apprentice but who are not disabled could not claim that they had been discriminated against.
The Equality Act 2010 (the Act) defines a disabled person as being a person who 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”.
Persons automatically deemed to be disabled
Some people will not have to meet the definition of disability as the Act classifies people with certain impairments as being automatically deemed disabled and thus protected by the Act.
The Act states that a person who has cancer, HIV infection or multiple sclerosis (MS) is a disabled person. This means people with such impairments are effectively covered from the point of diagnosis and do not need to show that the effects of the cancer, HIV infection or MS have a substantial and long term adverse effect on their ability to carry out normal day to day activities.
The Act also states that a person who is certified as being blind, severely sight impaired or sight impaired or partially sighted by a consultant ophthalmologist is deemed to be a disabled person.
In a similar vein to the fact that certain impairments are automatically deemed disabilities the Act also prescribes certain impairments that are not to be deemed as a disability. Those conditions are as follows:-
- addiction to, or dependency on, alcohol, nicotine or any other substance;
- seasonal allergic rhinitis (i.e. hayfever);
- tendency to set fires, steal or the physical or sexual abuse of other persons;
- exhibitionism; or
Meaning of mental or physical impairment
The first element of the definition of disability is that the person must have a physical or mental impairment. It is not necessary to consider how a physical or mental impairment is caused and it may not always be necessary to categorise a condition as being either physical or mental
Meaning of substantial adverse effect
The second element of the definition of disability is that the effects of the physical or mental impairment must be deemed to be substantial. The Act states that the adverse effects caused by an impairment will be considered substantial if the effects are more than minor or trivial
When considering whether the effects of an impairment are substantially adverse account should be taken of the following relevant factors:-
- the amount of time it takes a person to carry out a day to day activity;
- the way in which an activity is carried out;
- the cumulative effects of the impairment;
- the manner in which behaviour could be reasonably modified to prevent or reduce the effects of an impairment;
- the effects of the environment; and
- where an impairment is subject to treatment or correction, the effects of the impairment as it would be but for the treatment or correction
Example: A man works in a warehouse, loading and unloading heavy stock. He develops a long-term heart condition and no longer has the ability to lift or move heavy items of stock at work. Lifting and moving such heavy items is not a normal day-to-day activity. However, he is also unable to lift, carry or move moderately heavy everyday objects such as chairs, at work or around the home. This is an adverse effect on a normal day-to-day activity. He is likely to be considered a disabled person for the purposes of the Act. (Equality Act 2010, Explanatory Notes)
Example: A ten year old child has cerebral palsy. The effects include muscle stiffness, poor balance and uncoordinated movements. The child is still able to do most things for himself, but does get tired very easily and it is harder for him to accomplish tasks like eating and drinking, washing and getting dressed. Although he has the ability to carry out every day activities such as these, everything takes longer compared to a child of a similar age who does not have cerebral palsy. This amounts to a substantial adverse effect. (Equality Act, Office for Disability Issues)
Meaning of long term
The third element of the definition of disability is that the physical or mental impairment must be long-term. The Act states that an impairment is considered to be long-term if the impairment is one:-
- which has lasted at least 12 months; or
- where the total period for which is lasts, from the time of the first onset, is likely to be at least 12 months; or
- which is likely to last for the rest of the life of the person effected
When considering whether an impairment is likely to last 12 months then the term ‘likely’ should be interpreted as meaning that it could well last 12 months, rather that it is more probable than not to last 12 months.
When considering whether an impairment is long-term account should also be taken of the reoccurring effects of an impairment. In circumstances where, due to the nature of the condition, the substantial adverse effect on a person’s ability to carry out normal day-to-day activities ceases then the substantial adverse effect is treated as continuing if it is likely to reoccur, with ‘likely’ again meaning that the substantial adverse effects could well reoccur. However the likelihood of reoccurrence needs to be considered in light of what a person could reasonably be expected to do to prevent a reoccurrence.
Example: A woman has had rheumatoid arthritis for the last three years and has difficulty carrying out day-to-day activities such as walking undertaking household tasks and getting washed and dressed. The effects are particularly bad during autumn and winter months when the weather is cold and damp. Symptoms are mild during the summer months. The effect on ability to carry out normal day-to-day activities fluctuates according to the weather conditions, but because the effect of the impairment is likely to recur, this person meets the definition of disability requirement on the meaning of ‘long term’.
Meaning of day to day activities
The final element of the definition of disability is that the physical or mental impairment must adversely affect a person’s ability to carry out normal day-to-day activities.
Here the Act does not define the meaning of day-to-day activities, and it is not possible to provide an exhaustive list of what is to be regarded as a day to day activity. However account should be taken of the following principles:-
- The term normal day to day activities is not intended to include activities which are normal only for a particular person, or a small group of people;
- A normal day to day activity does not necessarily have to be one that is carried out by the majority of people;
- It could still be a day to day activity even if it is one that is predominantly carried out by a particular gender;
- Certain activities are not classed as day to day activities where they are specialist or particular to a certain type of work, hobby, sport or pastime; however activities that are generic to a wide range of work, hobby, sport or pastime, such as (but not limited to) sitting, standing, walking, writing, talking, typing and lifting and moving everyday objects could be deemed day to day activities
- An impairment does not have to directly prevent someone from carrying out a day to day activity. It is enough that the impairment has a substantial effect on how or for how long the day to day activity is carried out.
Example: A young woman has developed colitis, an inflammatory bowel disease. The condition is a chronic one which is subject to periods of remissions and flare-ups. During a flare-up she experiences severe abdominal pain and bouts of diarrhoea. This makes it very difficult for her to travel or go to work. This has a substantial adverse effect on her ability to carry out normal day-to-day activities. She is likely to be considered a disabled person for the purposes of the Act. (Equality Act 2010, Explanatory Notes)
A person who is no longer disabled by virtue of them no longer meeting the definition of disability can still be deemed to be disabled and thus have the protection of the Act as the Act states that people who have had past disabilities may be covered.
In order to be covered a person would have to show that when their impairment manifested itself it would have satisfied the definition of disability.
Additionally anyone whose name was on the register of disabled persons under provisions of the Disabled Persons (Employment) Act 1944 will be treated as having had a disability in the past.
People who are deemed to have progressive conditions (such as, but not limited to, systemic lupus erythmatosis, dementia, rheumatoid arthritis and motor neurone disease) do not have to meet the full definition of disability.
Under the Act a person with a progressive condition is to be regarded as having an impairment that has a substantial adverse effect on their ability to carry out normal day to day activities before it does so.
The effects of a progressive condition will be deemed to have a substantially adverse effect from the point at which it begins to have some effect on the person’s ability to carry out normal day to day activities, provided that the effect is likely to become substantial at some point in the future (again ‘likely’ means could well happen).
The Act also states that where an impairment consists of a severe disfigurement, the impairment it is to be regarded as automatically having a substantial adverse effect on a person’s ability to carry out normal day to day activities; there is no need to show that the severe disfigurement actually has such an effect. However the other elements of the definition of disability would still need to be satisfied.
For further detailed guidance and for illustrative examples please see the “Equality Act 2010 – Guidance on matters to be taken into account in determining questions relating to the definition of disability” published by the Office for Disability Issues – http://odi.dwp.gov.uk/docs/wor/new/ea-guide.pdf.