Six key words in the legislation

All people who have been diagnosed with HIV are considered to have a disability under the Equality Act.

This is also the case for people with cancer or multiple sclerosis. Individuals with other conditions are only considered disabled if they have a physical or mental impairment which has an effect on their ability to carry out normal day-to-day activities. That effect must be substantial, adverse and long term (i.e. has lasted, or is likely to last, at least a year). Depending on their circumstances, people with mental-health problems, diabetes, dyslexia or visual impairment may all be considered disabled.

An adjustment can involve an alteration not just to the physical features of the workplace, but also alteration of work conditions and work procedures.

An adjustment must be considered if the working arrangements or premises place a disabled person at a ‘substantial disadvantage’ compared with people who are not disabled.

However, not all adjustments have to be made. They must be reasonable.

Whether something is reasonable will depend on the circumstances of both the employee and employer, with regard to:

• how effective the adjustment would be in improving the employee’s situation

• how practical it is to make the adjustment

• how much it would cost to make the adjustment

• how long it would take to make the adjustment

• how much disruption making the adjustment would cause

• the resources available to the employer to make the adjustment.

If someone is only employed on a temporary basis, if the adjustment will be comparatively expensive (especially for a small employer) or if it will take a long time to put into place, then it may not be reasonable for the employer to provide it.

Adjustments that are simple or cheap to implement are more likely to be reasonable. If the employee is likely to stay with the employer for some time, if the employer is a large organisation and if the adjustment is likely to benefit other disabled employees, then an adjustment is more likely to be considered reasonable.

In the case of certain types of discrimination (indirect discrimination and discrimination arising from a disability), unfavourable treatment will not always be unlawful discrimination. Unfavourable treatment can be justified if it is a “proportionate means of achieving a legitimate aim”.

A ‘legitimate aim’ must be legal, should not be discriminatory in itself and must represent a real, objective consideration. Treatment is ’proportionate’ if it is an appropriate and necessary means of achieving that legitimate aim.

For example, ensuring patient safety is a legitimate aim of a hospital. As there may be a risk of an HIV-positive surgeon injuring him or herself and transmitting HIV during an operation, a ban on people with HIV working as surgeons might be considered justifiable.

In most cases of alleged discrimination, it is essential to demonstrate that the person has been unfairly treated in comparison with another person. The other person is called the comparator.

The comparator’s circumstances should not be substantially different from those of the alleged victim, except for not having the same disability. The comparator can be a real person or a hypothetical example.

While it sometimes seems to be an arcane piece of law, the outcome of many cases depends on whether the most appropriate comparator has been chosen. This was a key issue, for example, when a case of direct discrimination against an HIV-positive care worker was taken to the Court of Appeal.

Although we generally talk about rights for the employee in this chapter, it is important to note that a case for disability discrimination can be brought not only by current employees, but also ex-employees, job applicants, apprentices, people on work-experience placements and contract workers (for example, agency workers or those working for contracted-out services). There is no minimum qualifying service or number of hours required for a worker to make a claim, or minimum size of employer.

However, the legislation does not cover disability discrimination in relation to people in the armed forces.