Equality Act and Disability Discrimination Act – explained

Great Britain and Northern Ireland – differences

In England, Wales and Scotland “Great Britain” there is the Equality Act 2010 covering 9 protected characteristics including disability.

In Northern Ireland they still have the Equality Act’s predecessor legislation, the Disability Discrimination Act (DDA) and various Northern Ireland only amendments.

Reasonable Access have most experience of the Equality Act but we try to include information relating to both laws or the Northern Irish DDA where possible.

What can the law do?

If you make a legal disability discrimination complaint, the main remedy you are required to ask for is compensation for “injury to feelings”.

You can also ask for things like removal of barriers, changes to policies and practices or evidence staff have received training.

As the law requires that a fair amount of effort has been made to resolve cases before the legal stages, you can also suggest creative remedies and things – especially in mediation.

Types of discrimination

Discrimination is classified into types which are used for all characteristics

• Direct discrimination.
• Indirect discrimination.
• Harassment.
• Victimisation.

Disability has one extra type under the DDA and two under the Equality Act:

• Failure to make reasonable adjustments.
• Discrimination arising from disability (GB, Equality Act only).

Resources on the different types of discrimination

• Equality Human Rights Commission – disability discrimination introduction
• NI Direct discrimination webpages
• Stammering Law’s discussion of Northern Irish disability law compared to the Equality Act
• TUC ran a webinar in 2022 with BSL interpretation and closed captions about disability discrimination and reasonable adjustments

Reasonable Adjustments

Reasonable Adjustments are one of the most important elements of the Equality Act and DDA. Organisations providing services or public functions, education providers and employers all have a duty to make reasonable adjustments.

Anticipatory duty

The duty to make reasonable adjustments is anticipatory in services. This means service providers should have considered common disability access needs and implemented solutions before any disabled person needs or asks for them.

Some examples of common reasonable adjustments that could and should be anticipated:

• Ramp to get up a step.


• Providing a loop system.


• Policies allowing a PA/carer free entry.


• Having large print information.


• Providing staff assistance to a blind customer in a shop.


• Changes to ‘the usual rules’ for a disabled person.
• Policies and practices telling disabled people how to request adjustments that they need.

So if you are having to complain about access failings – the organisation has already left it too late!

Who is entitled to reasonable adjustments?

A disabled person is entitled ‘reasonable adjustments’ if:

Equality Act – they would be “substantially disadvantaged”

DDA – it would be “unreasonably difficult” for them

compared to a person without that disability.

This does not mean something has to be completely impossible, it could be difficult, painful, dangerous or very slow.

Sometimes proving disability by DDA or Equality Act standards (which are broadly similar) can be complicated.

What makes an adjustment reasonable?

In deciding whether a reasonable adjustment is reasonable an organisation should consider factors such as:

Effectiveness of adjustment at “preventing disadvantage”.

How practical the adjustment is to provide.

Cost of providing the adjustment (in relation to the *entire* organisations income).

Disruption providing adjustment demonstrably causes to others.

Availability of financial or other support to cover costs.

Nature of the organisation’s services.

An organisation cannot refuse an adjustment just because they don’t want to do it. Ignorance of the law by individuals or the wider organisation is not a justification either.

The Reasonable Adjustment duty is ongoing, this means:

• Even if one adjustment idea e.g. a permanent ramp is “not reasonable” the organisation still has to consider alternative adjustments that would reduce the ‘substantial disadvantage’.


• If an adjustment no longer works, then other adjustments have to be considered. It is not a one-time thing


• If circumstances change, making a previously unreasonable adjustment, e.g. on costs grounds, more affordable or the organisation becomes richer, then the more expensive adjustment may become reasonable.

Classification of reasonable adjustments in law

You need to be able to identify the correct type of reasonable adjustment (which can be tricky) if you make a legal complaint, which is why this matters. The three types are:

1. Provision Criteria or Practice (PCP) Equality Act (or Practice, Policy or Procedure (PPP) in the DDA).
   

   Policies, practices and “how things are done”. Two common examples are permitting assistance dogs into a space which otherwise does not usually allow dogs or enabling disabled people to avoid standing a queue.



2. Physical features
   

   Anything about a building or built-environment which causes disadvantage.
   Examples may be steps or lighting.



3. Provision of an auxiliary aid or service.
   

   Equipment, items or human support.
   Examples include a sign language interpreter or large print menu.

Resources on reasonable adjustments

• Reasonableness under Equality Act by EHRC
• Chapter 7 of the “Services, Public functions and Associations: Statutory Code of Practice” by EHRC which has lots of detail for the Equality Act
• Technical Guidance for Further and Higher Education
• Reasonable Adjustment page by ECNI (with links to more DDA resources)
• Code of Practice: Rights of Access Goods, Facilities, Services and Premises by ECNI which has detail for the DDA.

Other important facts about the law and reasonable adjustments

An organisation cannot pass on the costs of making a reasonable adjustment.

It is lawful to favour a disabled person in making an adjustment if to do otherwise would leave a disabled person at a substantial disadvantage. Refusing an adjustment by claiming everyone has to be treated the same is not true.

Only a court or tribunal can ultimately decide if something is reasonable or not. If an adjustment request is refused, it is worth asking for an explanation and evidence to support that.

Who can enforce discrimination law?

In most cases, only a disabled person (or their legal proxy) who is personally affected by the access issue or discrimination is able to enforce the Equality Act or DDA.

There are two main exceptions:

• Discrimination by association with a disabled person.


• Discrimination because you are perceived to be disabled.

Equality Commission Northern Ireland (ECNI) sometimes uses their enforcement powers and regularly seems to support people’s cases. The Equality Human Rights Commission (EHRC) in Great Britain have various enforcement powers, but do not necessarily use them regularly.

In England, Scotland and Wales there is the Equality Advisory and Support Service (EASS) but they can only provide limited help.

Definition of disability

Under the Equality Act and DDA there are specific ways of defining disability which in most cases relate to duration and impact of impairment or symptoms rather than any specific diagnoses. The reason this matters is that enforcing disability rights in the UK is largely only available to people who are or have been legally-disabled.

The legal definition of disability focuses on the untreated or undiagnosed state of the condition or impairment. Many people who don’t consider themselves disabled could be legally-disabled for Equality Act and DDA purposes in some situations. Some people who identify as disabled or have evidence of a long-term condition, may find themselves not accepted as legally disabled in some situations.

There are a handful of conditions: HIV, Cancers, Multiple Sclerosis (MS) and registered Partial or full Sight Impairments that are automatically considered legal disabilities from the point of diagnosis in the UK. This is because historically some organisations representing these impairment-groups successfully lobbied for their automatic definition.

Proving disability – outside of the courts

We don’t generally believe anyone should have to prove their disability prior to starting litigation for discrimination.

Accessing services – disability proof demands

We do not believe Service Providers should generally require proof of disability before making services accessible or providing adjustments. The Codes of Practice on Services make no mention of proving your disability except at the level of legal claims.

Further and Higher Education – proof requirements

Further and Higher Education providers (usually colleges and universities) seem to be generally allowed to require Equality Act compliant evidence of impairments or conditions, or diagnostic reports containing specific tests for conditions like dyslexia, before they will formally provide reasonable adjustments. We’re not entirely sure how this is justified and are researching it.

There is a recent legal case Abrahart v University of Bristol which challenges the proof requirement. The University of Bristol has appealed the Abrahart County Court judgment so there may be further hearings and rulings.

While education providers have an anticipatory adjustments duty like other service providers, institutions will often claim they did not know, and could not have reasonably have known a student was disabled. They can also sadly be nasty about disability status (see para 440) during complaints and legal claims even when they have been treating a student as disabled.

Employment

Employers may also be allowed to request proof of conditions or impairments before providing disability support and adjustments in the workplace – again we are unsure how much this is allowed.

It is often worth asking to be referred to Occupational Health and taking any medical letters you have about your disability with you to the appointment. You should be able to ask Occupational Health to keep the full documents confidential and to review any reports about your disability before they are sent.

It is probably legally reasonable for employers (directly or via occupational health services) to ask your doctor specific written questions about your condition.

However, some employers will demand access to full medical records which we think is unreasonable and grossly intrusive. We cannot give legal advice, but if this happens to you, we recommend seeking support from any of the following:

• Your trade union,
  
• ACAS helpline,

  Complaints process – proof issues

  We also don’t think that it is reasonable to have to prove your disability status to service providers during pre-legal complaints stages. Sometimes Respondents keep demanding proof or more proof of disability throughout a complaint. Our usual suggestion is to tell them you will provide this at the appropriate legal stage and otherwise ignore these demands.

  Another option is to say something like: “I can prove my disability status should this complaint reach appropriate legal stages, but I hope things will not come to that”.

  Disability proof in the legal process

  If you go to court, you are likely to be asked to provide proof of your disability at some point, especially if the Respondent is aggressively demanding it. Some people choose to provide proof early in the legal process to get the issue out of the way, others wait till it is officially requested.

  Ultimately it is the court that determines if you are legally disabled and even in the Small Claims process for a simple access issue, an amazing amount of time can be wasted in legal processes around legal-proof. Sometimes Respondents will demand excessive proof of disability such as entire medical records which we think is intrusive and unreasonable. If you have already provided a few kinds of evidence and the Respondent keeps demanding more, try and think about whether this is a bullying tactic or if your evidence has any weaknesses in relation to your claim.

  Obtaining legally suitable proof

  We recommend if you ask for proof of disability that you provide the author of the evidence with information about what the Equality Act or DDA require the evidence to cover as well as the specific information about your impairments that you want them to cover. You can print out some of the resources linked on this page.

  The evidence needs to contain:
  

  • A date and clear identification for the disabled person e.g. their name, date of birth and address.
    
  • Headed paper showing the organisation the author words for, and clear indication of the author’s qualification and how they know you.
    
  • The duration of any condition or impairment symptoms (to be clear they have lasted, or are expected to last more than 12 months).
  
  
  • Impacts on ‘normal’ day to day activities (without treatment or aids) – especially those activities which are relevant to the access issue you’re using the letter for.

  It is also very helpful for the evidence to include wording like:
  I confirm that FULLNAME is disabled for the purposes of the Equality Act 2010 (or DDA). their disability has lasted (or expected to last) more than 12 months and has a substantial negative impact on their ability to carry out normal day to day activities.

  Who can and cannot provide evidence

  The author of your evidence will need to be someone who has relevant expertise in the area of your impairment. A GP can be a good all-round author for basic evidence. Hospital specialists (nurses, doctors, physiotherapists, occupational therapists, dieticians) can be good as long as it is their area.

  You can’t use a specialist such as an orthopaedic doctor to document a mental health condition for example. It is also unlikely that evidence would be accepted from a non-registered practitioner e.g. nutritionist, alternative medicine practitioner or a counsellor who doesn’t have BACP or equivalent accreditation.

  GP (General Practitioner) or hospital specialist proof

  The easiest way can be to ask your GP to write a specific letter for proving your legal disability status which only contains the appropriate impairment and legal wording. You will probably have to pay for this letter, but if you settle or win a case, you may be able to reclaim this cost back (so get and keep the receipt). You may also be able to reuse the same evidence letter for more than one complaint/case.

  Hospital specialists (not just doctors) can sometimes write letters without charging you but it could take a long time or they may not be willing if they are super busy. You will need to take care that they write the correct things, perhaps by providing them with a template with space to add in the detail about your condition with questions they could answer for you.

  Using existing medical letters

  Existing medical letters are often poor for Equality Act purposes because:
  

  • They can imply your condition is better than it is.
  • They can contain a lot of unnecessary extra information that you don’t want to share.
  • They are written for other clinicians so use technical language which is not explained clearly for the layperson.

  Paying privately for evidence

  Sometimes people pay privately for a consultation or a letter when the evidence needs to be specific or used in a hurry, but we wouldn’t expect this to be the norm for the Small Claims Court. If your case is in the fast or multi-track then obtaining and funding specific expert evidence may be discussed as part of the legal process.

  One advantage of a private consultation is that you have the time to explain to the clinician what you want and need and they may be more likely to give you control over what is in the letter.

  Respondents denying disability status

  Organisations and their lawyers know that the easiest way to wreck many disability discrimination cases is to argue that the Claimant is not disabled, as this causes “legal tests to be failed” which means the case cannot proceed. Therefore there is a strong incentive for Respondents to keep claiming proof of disability provided is unsuitable and ask for more and more proof.

  Refusal to accept legal disability status can extend to ignoring visible impairment effects and expensive aids like wheelchairs or hearing aids. Or evidence such as copies of blue badges, PIP awards or social services care plans.

  Organisations also know that disability information is often very personal and sensitive, and not something a disabled person often wants shared – especially not with someone who has already hurt them by discriminating against them. Judges can be very poor at recognising when Respondents are abusing the disability-proof process because they are stuck in the “Claimant has to prove disability status” mindset.

  A 2016 House of Lords inquiry into the Equality Act covered disability proof in Paragraphs 440-442 of their report it still leaves the disabled claimant having to ask a court to challenge this abusive defence practice. Which in practice and our experience does not work.

  Privacy of medical evidence in court

  Evidence about your disability may be discussed in open court. One of our members has had some success in obtaining a reporting restriction about their disability information but was unable to get a private hearing about these issues despite receiving threats and detriment to employment. We hope to be able to update this page soon with details of the successful legal arguments used for a reporting restrictions for other people to try and use.

  Detailed guidance about proving disability

  For more details of the technicalities see the following links:
  

  • Equality Act – Brief definition of disability
  • Equality Act – Detailed guidance on defining disability [PDF]
  
  
  • DDA Brief definition of disability
  • DDA Detailed definition of disability guidance by ECNI [PDF]

  Links to Equality Act and DDA legislation

  Equality Act 2010 – legislation for England, Wales and Scotland.

  Disability Discrimination Act (DDA) 1995 and amendmends – legislation for Northern Ireland only after 2010.