Usually, the first hurdle for a worker in bringing a disability discrimination case is to prove that they are disabled for the purposes of the Equality Act 2010 (‘the Equality Act’). Briefly, the Equality Act states that an individual is disabled if:
- they have a physical or mental impairment
- the impairment has a substantial adverse impact on their ability to carry out day-to-day activities; and
- the impairment is expected to last 12 months or more.
In most circumstances, a disability discrimination claim will not succeed unless a worker can prove that their medical condition meets this threshold to qualify as a disability.
However, discrimination law makes some provision for instances in which non-disabled people find themselves subjected to discrimination on the grounds of disability. This can be where a worker used to be disabled but is not anymore and is still mistreated for it. Alternatively, a worker could be discriminated against because they are perceived to have a disability which they do not have, or if they associate with a disabled person and are discriminated for it.
Past Disability
Section 6(4) the Equality Act states that (with a few non-work-related exceptions), the discrimination protections which apply to a person who has a disability also apply to a person who has had a disability. This provides protection for workers who used to be disabled, even if they are no longer disabled it is still a breach of the Equality Act for an employer to mistreat them for a past disability.
An example might be where a worker previously had a severe mental health breakdown which lasted 12 months. If they recover from this breakdown and have no continuing mental health condition, they would no longer be disabled for the purposes of the Act. However, if this history is disclosed to an employer and they are refused a job opportunity or unfairly stigmatised at work because of their past, they may still have grounds to bring a disability discrimination claim against their employer.
Perceived Disability
In other circumstances, a non-disabled worker can be mistreated by an employer based on a false perception by the employer that they have a disability. This could still amount to unlawful discrimination, a worker does not always need to possess a disability in order to be discriminated against on the basis of it. If an employer treats a worker less favourably because they perceive that a worker is disabled, this could amount to direct disability discrimination in breach of section 13 of the Equality Act.
The issue of perceived disability discrimination was considered by the Court of Appeal in the case of Chief Constable of Norfolk v Coffey [2019]. In this case, the worker was a front-line police officer suffering from hearing loss which did not amount to a disability, however her application to transfer to a different force was refused because her employer perceived her to have a potential future disability if the hearing loss worsened.
It was noted in this case that in order for a case of perceived disability discrimination to be established, the alleged discriminator must believe that the worker has a condition which meets the statutory definition of disability (as set out above), although it is not necessary for the discriminator to attach the label of ‘disability’ to the condition.
Associative Disability Discrimination
Lastly, a non-disabled person can also be discriminated against on the basis of the disability of another person. For example, where a worker is treated less favourably because they have a disabled child or spouse, this could still amount to direct disability discrimination in breach of section 13 of the Equality Act.
The issue of associative direct disability discrimination was considered by the Employment Tribunal in the case of Graham v Gravity Supply Chain Solution Limited and others [2024]. In this case, the worker had a wife diagnosed with stage 4 breast cancer. The worker alleged that his wife’s disability had been the cause of his employer reducing his sick pay, telling him he would be demoted, cutting off his access to e-mails and then dismissing him. The Tribunal in this case assessed the evidence and found that the worker’s wife’s disability was a material and significant reason for this mistreatment, and therefore upheld his claim for direct discrimination.
These aspects of the Equality Act are not as ‘tried and tested’ in the Courts and Tribunals as the more commonly used provisions of the Act, so there is less case law to provide guidance on when a non-disabled person can successfully claim disability discrimination. However, it is important to know that these protections exist, as many workers will assume they cannot make claims for disability discrimination if they themselves are not disabled.
Non-disabled workers can also make claims for unlawful harassment, in breach of section 26 of the Equality Act, if they experience unwanted conduct in the workplace related to disability which makes them feel intimidated or offended. For example, if a worker hears a manager making derogatory remarks regarding disabled people and they feel intimidated or offended, they may have grounds to make a harassment claim even if they themselves are not disabled.
This blog was written by Yavnik Ganguly, Solicitor at didlaw.
