Protecting Our Clients v Protected Characteristics
So What Is A Disability?
As you will be aware, disability is protected under The Equality Act 2010. This is to ensure that no employee should be subjected to discrimination or prejudicial treatment in the workplace due to their disability.
But What Is Not A Disability?
- Addiction to/dependency on alcohol, nicotine or any other substance (other than medically prescribed drugs or other medical treatment).
- Tendency to set fires.
- Tendency to steal.
- Tendency to physically or sexually abuse otherpeople.
- Tattoos and body piercings.
- Seasonal allergic rhinitis (usually known as hay fever)—but hay fever can be taken into account where it aggravates the effect of any other condition.
So what happens when something that is not a disability is related to a disability? For example, when an addiction to alcohol or another drug (not disabilities) creates a mental health problem (disability). Does someone steal (not a disability) because they have depression or PTSD (disabilities)? These questions were recently discussed in the case of Wood v Durham County Council UKEAT/0099/18 (3 September 2018).
Essentially, the thing to take away from this article is that when it comes to a disability, there are grey areas that can all too often require the intervention of the court to ascertain whether discrimination is present, whether the purported disability is valid and whether an organisation acted unlawfully. By which time the costs, time, and potential reputational damage to the business have escalated.
It is crucial to have a conversation with an employment law specialist regarding any proposed action you wish to take against an employee with a disability (whether a confirmed or potential disability).