Equality Act 2010 Disability 1

Definition The Equality Act says a disability is a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities. 2

What are day-to-day activities? Normal day-to-day activities are those carried out by most people on a regular basis. For example: walking or driving washing or getting dressed cooking or eating using public transport talking or hearing writing, typing or reading carrying or moving things being able to concentrate or understand being able to form social relationships. 3

What’s meant by substantial adverse effect? To be considered a disability, the condition must have a substantial adverse effect on daily life. This means it must have more than a minor effect. The condition doesn’t have to stop someone from doing something completely, but it must make it more difficult. It may also be that someone has to avoid doing certain things. 4

Example: If a medical condition leads to extreme exhaustion it may make it very difficult for someone to do many daily activities such as getting dressed, walking and concentrating. Example: A person who suffers from severe anxiety and agoraphobia may avoid going outside as they may frequently experience panic attacks when in a public place. In both these situations, it can be said that your condition has a substantial adverse effect on your daily life.

What is meant by long-term? The adverse effect has lasted for more than 12 months The adverse effect is likely to last for more than 12 months The adverse effect is likely to last for the rest of your life 6

Change: Discrimination arising from a disability Discrimination arising from disability occurs when a disabled person is treated unfavourably (which causes a disadvantage) because of something connected with their disability. As long as the unfavourable treatment arises as a consequence of the disability, it will be unlawful unless it can be justified by showing that there is a good reason for the action.

Examples of things connected to disability the need for regular rest breaks or toilet breaks a restricted diet difficulties in using public transport the need for regular hospital appointments the need for specialist computer equipment the need for a quiet working environment the need for an assistance dog behavioural issues speech or movement difficulties. 8

Example You're blind and need a guide dog. You’re refused entry to a restaurant because the restaurant doesn’t allow dogs inside. The need for an assistance dog is connected to your disability. This would be unlawful discrimination, not because of your disability itself, but because you need an assistance dog. You're being put at a disadvantage because you need the dog to help you. It doesn’t matter that other people can’t take their dogs into the restaurant because they don't need a dog to help them. 9

Medical treatment or aids which make the condition better A condition will still be considered as having a substantial effect if, without the treatment or aid (such as prosthesis or hearing aids), the condition is still likely to have this effect. This includes mental health conditions. 10

Example Long-term anxiety which is being treated by counselling. The effect of the anxiety (in this example) would be to make simple tasks difficult. Counselling means the person is able to get up and go to work. The Equality Act says you have to ignore the treatment in deciding whether the mental health problem has a substantial adverse effect on the person’s day-to-day activities and so the person has a disability. 11

Change: Association or Perception The Act extends protection to people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic. e.g. some young carers* Legal protection against discrimination also applies if a person is treated less favourably because they are thought to have a protected characteristic. *If someone is addicted to non-prescribed drugs such as alcohol or nicotine, this doesn't count as a disability under the Equality Act however, conditions which are caused by or linked to the addiction - for example, liver disease or depression, could be a disability under the Act.

Discrimination because of a past disability It is unlawful to discriminate against because of a condition someone has had in the past which counts as a disability under the Equality Act. A person has suffered from a mental health condition in the past, although they have since recovered. If the condition had a substantial and adverse long-term effect on their ability to carry out normal day-to-day activities this will mean it is treated as a disability under the Equality Act. It would be unlawful to discriminate against the person now because they had this mental health condition in the past. 13

14 Change: Specific duty within the Equality Act for schools to provide auxiliary aids and services Schedule 13 of the Act requires schools to provide auxiliary aids and services to disabled pupils where it is reasonable to do. It covers pupils who come within the definition of disabled persons in the Equality Act. Those pupils must, for the provision of an auxiliary aid or service, be at a "substantial disadvantage" in comparison with non-disabled pupils. It must be reasonable for schools and local authorities to take steps to avoid that disadvantage by providing the auxiliary aid or service. Cost would be a consideration in deciding whether it is reasonable to take such steps

15 More favourable treatment: Disability, Gender Reassignment, Pregnancy It is never unlawful discrimination to treat a disabled pupil more favourably than a non-disabled pupil because of their disability It is never unlawful discrimination to treat a pupil who is undergoing gender reassignment more favourably than a pupil who is not It is never unlawful discrimination to treat a pupil who is pregnant or breastfeeding more favourably than a pupil who is not

Dyslexia is covered under the Equality Act where: ‘In some cases, people have coping or avoidance strategies which cease to work in certain circumstances (for example, where someone who has dyslexia is placed under stress). If it is possible that a person’s ability to manage the effects of an impairment will break down so that effects will sometimes still occur, this possibility must be taken into account when assessing the effects of the impairment.’ Paragraph B10, Guidance to the Definitions of Disability, Equality Act 16