The Equality Act 2010 protects employees and other workers against disability discrimination in the workplace.
But first you have to prove that you have a disability!
For most medical conditions, the Act requires that a person must prove that they have a condition which amounts to a disability. This is a very particular definition as set out in the Act and which requires a person to prove that –
- the condition is long-term (has lasted or is likely to last 12 months or more);
- that it is substantial. Substantial means more than minor or trivial. If it is not trivial it will be substantial; and;
- that it has an adverse effect on their normal day to day activities. For example is the person unable to do everyday things such as take public transport, read and concentrate, look after their own personal hygiene, etc.
Diagnosis is not enough
It is not enough to say that you have been diagnosed with a medical condition to get you the protections at work (and in the provision of goods and services and more broadly) against disability discrimination. You have to prove it. It also is largely irrelevant if you have for example a blue parking badge. You still have to show that in a workplace context your condition amounts to a disability in law.
Cancer is an exception to the rules
There are however some exceptions to this rule. Some conditions that are so-called “automatic” or “deemed” disabilities which means that you do not have to prove that the condition is long-term, substantial, etc. One of these is cancer. The other two are multiple sclerosis and HIV. There is also an exception in the Act for some severe sight impairments.
There can be no upside in having cancer whatsoever. But it does afford this automatic protection which in theory should mean that it is easier to enforce the rights the Act gives you. Sadly the reality on the ground is rarely so simple.
So what are my rights if I am protected by the disability provisions in the Equality Act?
You have the right to ask for reasonable adjustments. This could be anything from asking to alter your work pattern or place of work, time off for appointments, a temporary change in your duties. The reason reasonable adjustments are required by law is so that a disabled person has the same opportunities and a level playing field in the workplace because reasonable adjustments can remove barriers which hinder their full and effective participation in the workplace.
Employers are required to do more for disabled staff than non-disabled staff. The Equality and Human Rights Commission has a fantastic downloadable guide which will point you in the right direction when it comes to make a request and what kinds of things are reasonable to ask for. You can find it here.
You also have greater protections against dismissal even where there is a redundancy situation which is also impacting other staff. You should be given preferential treatment on the basis that it is harder for you to move workplace when you have a disability. Many people do not know they have this additional protection. If in doubt, speak to a lawyer on what your rights are. It might alleviate some of the stress of what you are going through: at least that is the idea. Wishing you courage and recovery.
This blog was written by Karen Jackson, Managing Director of didlaw and a leading authority on disability discrimination in the workplace.
