Disability Discrimination Law & Advice

This guide is intended to provide a general and concise overview of disability discrimination law. Generally, disability discrimination is mostly covered by one single piece of legislation – the Equality Act 2010 (EA 10). Prior to this, the law was mostly covered by the Disability Discrimination Act 1995 (DDA).

The Equality Act 2010 (which incorporates the former DDA) came into force on October 2010. The new act was introduced to merge the previous laws on anti-discrimination into one single legislation: i.e. to act as one unified umbrella law for discrimination protection. The new law offers protection beyond just the disabled: it also covers age, sex, race, sexual orientation, gender reassignment, and religion or belief. These categories are what the law refers to as ‘protected characteristics’.  

The legal definition of discrimination

A person can be said to have been discriminated against when they have been treated less favourably than someone else (a comparator) and that the treatment is for a reason related to the person’s protected characteristic (e.g. their disability).

Definition of a disabled person under section 6(1) of the EA 10

The section states that: “A person (P) has a disability [for the purposes of the Act] if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

Types of disability discrimination

Discrimination law can often be confusing as there is more than one form, or way, that a person could be discriminated against. Currently, the types of discrimination a person can claim, include:

  • Direct Disability Discrimination.
  • Discrimination arising in consequence of a person’s disability (which lawyers often refer to as ‘Discrimination Arising From’).
  • Indirect Disability Discrimination.
  • Failure to make Reasonable Adjustments.
  • Harassment.
  • Victimisation.

If you are disabled or have had a disability, the EA 10 makes it unlawful for you to be discriminated against in:

  • The course of your employment.
  • Your access to goods, facilities and services.
  • The management, buying or renting of land or property.
  • Your education.

There is additional legislation, apart from the EA 10, that protects your rights to health and social care entitlements. Please click on our community care section if you wish to know more. The tabs above also provide more detail on the specific times for claims relating to Higher Education, Goods and Services and Employment law.

Legal aid for discrimination

You can obtain Legal Aid/Legal Help for discrimination claims if you pass the merits and financial eligibility criteria (please click on this link to go to our Legal Aid page). You can also go to the Government’s website (by clicking here) to find your nearest legal aid adviser.

Individuals wanting to access free discrimination advice or representation should first call the telephone gateway which is:  Civil Legal Advice on 0345 345 4 345. If they think you are eligible for advice, then you should be granted immediate and direct access to a specialist discrimination lawyer.

Other useful sources of information on disability discrimination law

Protection against disability discrimination in goods and services falls under ‘Part 3 – Services and Public Functions’ of the Equality Act 2010 (EA 10). You can find a link to the legislation on the Government’s website

What acts are service providers for goods and services not allowed to do?

  1. A service provider is prohibited from subjecting a disabled person to direct disability discrimination in the provision of its service to the public.
  2. A service provider is prohibited from subjecting a disabled person to victimisation.
  3. A service provider is prohibited from subjecting a disabled person to harassment.
  4. A service provider has a duty to make Reasonable Adjustments to disabled people in the provision of its services where it applies to the following requirements:
    1. Where a provision, criterion or practice of a service provider puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps, as it is reasonable to have to take, to avoid the disadvantage;
    2. Where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps, as it is reasonable to have to take, to avoid the disadvantage;
    3. Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

Service Provision Scenario: Insurance

Business providers of insurance can only justify treating a disabled person (including people with a past disability) differently when providing them with insurance if:

  1. The different treatment is by reference to relevant information from a source on which it is reasonable for them to rely on; and,
  2. It is reasonable for them to treat that person differently.

This means that it is important for providers of insurance to ensure they have the relevant information (from a reliable source) when making decisions about offering insurance services to a disabled person. Using untested assumptions, stereotypes or generalisations can lead to unlawful discrimination. Examples of this are provided below –

Example 1 – Refused Insurance

Ifeoma used to have a previous mental health condition which she no longer requires treatment for. She is charged a higher premium for travel insurance because of a blanket exclusion policy – even though she has not had any recurrence of her condition for many years. The insurer does not have any information that Ifeoma’s past condition poses a current particular risk. It will be unlikely the insurer will be able to show that the different treatment Ifeoma received is based on relevant information from a source on which it is reasonable for them to have relied on – and that it was reasonable for them to have treated her differently because of her past disability. Unless they can demonstrate this, they must not charge Ifeoma higher premiums or refuse her insurance altogether.

Example 2 – Refused Insurance

Adam, whom is being treated for cancer, applies to an insurance provider for a life insurance policy. The provider refuses Adam’s application on the basis of a medical report provided by his doctor. His doctor has made it clear in the report that Adam’s prognosis is as of yet uncertain and that “it is not possible to know how his treatment will be received.” The provider’s decision is based on relevant information from a source (Adam’s doctor) on which it is likely reasonable for them to rely on. As such, it is also likely reasonable for them to treat Adam differently – by refusing his application – because of it.

Service Provision Scenario: Reasonable Adjustment

Reasonable Adjustments are not just about changes to physical features or the addition of auxiliary aids such as a hearing loop (although these can be very important to some disabled people). Entertainment businesses should consider providing information (such as programmes and publicity material) in alternative formats and offering an additional free ticket to disabled persons who might need to bring an assistant.

If a venue is of a type that means businesses need to restrict services based on health and safety considerations, then they should make sure that any action taken in relation to health or safety is proportionate to the risk.

Disabled people are entitled to make the same choices and to take the same risks within the same limits as other people. Health and safety law does not require service providers to remove all conceivable risk – but they must ensure that the risk is properly appreciated, understood and managed. Businesses should not make assumptions. Instead, they should assess the person’s situation and consider reasonable adjustments to reduce any risks. Their duty is to not discriminate, and, where appropriate, the disabled person’s views should be taken into account.

There must be a balance between protecting against the risk and restricting disabled people from access to services.

Example 3 – Refused Reasonable Adjustment

Mariah, whom has recently lost her sight, informs her bank that she would like to receive her bank statements in braille. Her bank refuses, telling Mariah that it is not cost effective to do so and that “she will just have to manage without.” Mariah may be able to pursue a claim for breach of the duty to make reasonable adjustment, and discrimination arising as a consequence of her disability.

Please contact us if any of the above applies to you.

Which Providers are Covered?

  • Universities and Higher Education institutions.
  • Further education colleges and institutions, including sixth form colleges.

What is Unlawful Discrimination?

Thanks to unlawful discrimination laws, further or higher education institutions must not do the following:

  1. Treat you worse than someone else because of your disability (Direct Discrimination).
  2. Fail to make reasonable adjustment for you if you are being put at a substantial disadvantage in comparison to others.
  3. Subject you to discrimination arising from disability.
  4. Indirectly discriminate against you by applying a provision, criterion or practice.
  5. Harass you because of your disability.
  6. Victimise you by subjecting you to a detriment because you have done a protected act – i.e. you brought proceedings, raised a complaint or supported someone under the Equality Act 2010 (EA 10).

Direct Discrimination

Direct discrimination occurs when you are treated less favourably than your institution treats (or would treat) another student because of your protected characteristic.

Example 1

Peter’s application to study Medicine at X University is refused because the institution believes he will not go on to become a good doctor because he is disabled. This would be unlawful direct disability discrimination.

Example 2

X University decides that in order to encourage more disabled people to become artists, it will reserve a certain percentage of places on its Art degree course solely for disabled applicants. This would not be unlawful direct discrimination.

Example 3

X College offers a bursary for disabled students only.  This would not be unlawful direct discrimination.

The Duty to Make Reasonable Adjustments

If you are a disabled student, the duty requires further and higher education institutions to take positive steps to ensure that you – and disabled students generally – can fully participate in your education and the other benefits, facilities and services that come with life as a student.

This includes taking advance action where it is reasonable to anticipate disabled students’ requirements so that it is then not too difficult or too late to make adjustments when disabled students ask for them. This duty is owed to you if you are an existing student or applicant, and, in limited circumstances, even if you are a former student.

As explained below, this duty may require institutions to change the way they normally work, alter physical features of their buildings (such as the siting of lecture rooms or disabled access to them), and provide equipment (such as assistive software) or human assistance (such as a scribe or British Sign Language (BSL) interpreter).

What is the reasonable adjustments duty?

The duty requires further and higher education institutions to take reasonable steps to:

  1. Avoid substantial disadvantage where a provision, criterion or practice puts you at a substantial disadvantage in comparison with non-disabled students.
  2. Avoid substantial disadvantage where a physical feature of the building or premises puts you at a substantial disadvantage in comparison with non-disabled students; this includes removing the physical feature in question, altering it or providing a reasonable means of avoiding it.
  3. Provide an auxiliary aid where, due to it not being put in place, you would be put at a substantial disadvantage in comparison with non-disabled students.

Where the reasonable adjustment you need concerns the provision of information, the steps that will be reasonable to take includes ensuring the information is provided in an accessible format. An institution cannot justify a failure to make a reasonable adjustment where the duty arises – the issue is whether or not the adjustment is ‘reasonable’.

What is meant by ‘reasonable’ steps?

What is reasonable for an institution to do, will vary according to a number of factors. Such factors may include: the effectiveness of the adjustment, the cost and practicability of the adjustment, the type of education, benefit, facility or service being provided and the relationship between the student and the institution.

There is often more than one reasonable adjustment that could be made, and the institution does not have to make the one requested by you if another one could also overcome the substantial disadvantage. You do not have to suggest adjustments, but if you do, your institution should consider whether these suggestions would help you to overcome the disadvantage and whether they are reasonable. It is good practice for your institution to work with you in determining what reasonable adjustments can be made.

What is a substantial disadvantage?

The EA 10 defines a ‘substantial disadvantage’ as one that is more than minor or trivial. The level of disadvantage created by a lack of reasonable adjustments is measured in comparison to what your position would be if you did not have a disability.

A further or higher education institution will need to take into account a number of factors when considering what a substantial disadvantage might be. This can include:

  • The time and effort that you might need to expend.
  • The inconvenience, indignity or discomfort you might suffer.
  • The loss of opportunity or the diminished progress you might make, or might have made, in comparison with your peers who are not disabled.

Example 4 – substantial disadvantage

X College’s campus is made up of several sites. To attend their classes during the day, Engineering students are required to move between sites. This has placed a burden on students with mobility difficulties and put them at a significant disadvantage compared to their peers who have no mobility difficulties. Students with mobility difficulties have found they are often late to their classes because of the travel distances. Such a disadvantage is more than minor or trivial and is likely to satisfy the definition of a substantial disadvantage.

The duty to change a provision, criterion or practice

These terms are not defined, but in general they relate to how the education and other benefits, facilities and services are provided, and covers all of a further or higher education institution’s arrangements, policies, procedures and activities.

Where a provision, criterion or practice places you at a substantial disadvantage in accessing education and any benefit, facility or service, the institution must take such steps as it is reasonable to take in all the circumstances to ensure the provision, criterion or practice no longer has such an effect.

Example 5 – provision, criterion or practice

X College has a strict policy that states no drugs are allowed on their premises. Tom, whom is a student, has a heart condition. He carries on his person medication which is needed to treat his condition. X College allows Tom to bring his medication with him whenever he is on campus. This is likely to be a reasonable adjustment to the College’s policy on drugs.

A provision, criterion or practice does not include what is known as a ‘competence standard’. A competence standard is defined as an academic, medical or other standard for the purpose of determining whether or not a person has a particular level of competence or ability. There is no duty to make reasonable adjustments in relation to the application of a competence standard.

However, the reasonable adjustment duty does apply to the process of demonstrating that a person meets the competence standard –

Example 6 – competence standard

X University has a minimum pass mark that students must obtain in order to be accepted onto their courses. This is a competence standard so would not be subject to the duty to make reasonable adjustments.

However, X University refuses to provide disabled students with extra time when they sit their exams. It could be seen that it would be a reasonable adjustment for the College to provide disabled students a longer time limit in which to complete an examination – if, for example, their disability causes them to write more slowly. Or even to provide students with visual impairments their written exams on an enlarged text. These would be examples of reasonable adjustments that can help some disabled students to demonstrate that they meet the competence standard.

The duty related to physical features

What can be defined as the physical features of a building or premises includes:

  • Any feature arising from the design or construction of a building.
  • Any feature on the premises – including any approach to, exit from, or access to the building.
  • Any fixtures, fittings, furnishings, furniture, equipment or other moveable property in or on the premises.
  • Any other physical element or quality.

All the features are covered by the duty; whether the feature in question is temporary or permanent.

The duty to provide auxiliary aids

A further or higher education institution must take such steps as it is reasonable for it to take to provide auxiliary aids to avoid the substantial disadvantage that you may experience because of a disability. An auxiliary aid includes an auxiliary service and covers anything which provides additional support or assistance to you. This could range from the provision of a particular piece of equipment (which would not become your property) to extra staff assistance. It also includes making information available in an accessible format.

Example 7

X University, as part of its services, ensures deaf students have access to BSL interpreters and palantypists. This is an example of an auxiliary service which addresses the substantial disadvantage faced by deaf students.

If you are on a higher education course, you may be able to obtain the Disabled Students’ Allowance, which helps provide for the cost of additional study support or equipment you may require due to your disability. If a piece of equipment is purchased using this allowance, it will remain your property even after you have finished your course. If you are on a further education course, your institution may be able to provide you with study support and equipment through Additional Learning Support Funding.

Cost of providing reasonable adjustments

A further or higher education institution is not allowed to charge you for the cost(s) of making any reasonable adjustments put in place for you.

Harassment Related to a Protected Characteristic

Harassment occurs when a further or higher education institution engages in unwanted behaviour which is related to a relevant protected characteristic and which has the purpose or effect of:

  1. Violating your dignity, or
  2. Creating an intimidating, hostile, degrading, humiliating or offensive environment for you.

The word ‘unwanted’ means ‘unwelcome’ or ‘uninvited’. It is not necessary for you to say that you object to the behaviour for it to be unwanted.

Example 8

A tutor at X College repeatedly makes rude comments towards students who are unable to solve equations in their heads, shouting “if you can’t solve equations just using your head, you’re not fit to be a student at X college and should drop out.” Jennifer has a learning disability and feels more confident when solving equations on paper. She finds the tutor’s behaviour to be degrading and offensive. This could be harassment related to the protected characteristic of disability.

Whether or not the unwanted behaviour constitutes unlawful harassment depends on the purpose or effect of the behaviour. It does not matter what the intention behind the behaviour is if it creates the circumstances described above.

In determining if the behaviour has had such an effect, it is necessary to take into account not only the perception of the student, but also the other circumstances of the case including the relationship between the alleged harasser and the student and whether it is reasonable (which is judged objectively) for the behaviour to have that effect. 

This means that it is unlikely to be unlawful harassment if another reasonable person would not feel that their dignity had been violated or that the behaviour had created an intimidating, hostile, degrading, humiliating or offensive environment for the student.

In the context of Harassment, ‘related to’ has a broad meaning and includes situations where you do not have the protected characteristic yourself; provided there is a connection between the behaviour and a protected characteristic. This would also include situations where you are associated with someone who has a protected characteristic or are wrongly perceived as having a particular protected characteristic (associative discrimination).

Victimisation

Victimisation is defined in Section 27 (1) of the EA 10. A person can be regarded as having been victimised if they have been treated unfavourably (to their disadvantage or detriment) because they have done a ‘protected act’, or because the person victimising you believes that you have done or are going to do a protected act.

Section 27 (2) defines what the ‘protected act’ are:

  1. Making a claim or complaint of discrimination (under the EA 10).
  2. Helping someone else to make a claim by giving evidence or information (in connection with a claim made under the EA 10).
  3. Doing anything else in connection with the EA 10.
  4. Making an allegation (whether express or not) that someone has breached the EA 10.

If a further or higher education institution treats you less favourably because you have taken such actions, then this will be unlawful victimisation. There is no time limit within which victimisation must occur after a person has done a protected act. However, there must be a link between what you did and how the institution treats you. The less favourable treatment does not need to be linked to a protected characteristic.

Example 9

Briana has lodged a claim for disability discrimination against X College. Clifton, a fellow student at X College, has provided testimonial evidence in support of her claim. Clifton has recently made an application for a student living cost grant at the College. A finance officer, aware of Clifton’s evidence, refuses his application because of his supporting evidence. This would amount to victimisation.

Who is not protected?

If you give false information or evidence in bad faith – that is, you know that it is false – or make an allegation that is false and given in bad faith you would not be protected against victimisation.

Example 10 – bad faith

Crystal is studying Law at X College. Daniel, her tutor has just recently failed her from his Legal History module due to her failing an essential essay. Crystal, holding a grudge against Daniel, knowingly gives false evidence in support of Briana’s claim for disability discrimination against X College. Crystal is subsequently excluded from her Law course for supporting the claim. This treatment could not amount to victimisation because Crystal’s evidence was untrue and given in bad faith.

It does not matter whether the original complaint/claim or allegation is upheld – simply that it not be given in bad faith.

This means if the complaint/claim or allegation was made in good faith, but it turns out to be factually wrong or provided in relation to proceedings which are unsuccessful, that person will still be protected from victimisation.

Example 11 – good faith

Sheila, whom has Dyslexia, studies Information Technology at X University. X University has an annual scholarship which it awards to the best performing student for the year. Sheila is not picked for that year. However, she believes she was the best performing student in the year and that she was not awarded the scholarship simply because she receives extra time in exams on account of her disability. Sheila brings a discrimination case against the University which she loses – as she could not have known she was beaten by John whom studies at home. Her good faith in bringing the claim is accepted by everyone. At the end of her degree, Sheila applies to study a Master degree at X University. Her application is refused even though she received the highest overall mark in her degree and was the best performing student. She believes she is being victimised because of her earlier complaint of disability discrimination. Although Sheila lost her discrimination claim, she would be able to make a claim of victimisation.

Discrimination Claims (Non Employment)

If you have been discriminated against in some way – such as when purchasing goods or receiving a service – this will be dealt with either by the County Court (for claims in England and Wales) or the Sheriff Court (for claims in Scotland).

County and sheriff court deadlines for these claims are six months minus one day from the date of the incident that you are complaining about.

We would advise that any claim be submitted as soon as possible in order that no mistake is made in relation to the timeframe of a claim.

Judicial Review

A limited number of claims may have to be made via the High Court using a method called Judicial Review. If it is decided that is the route you need to take, then the time limit guidance for judicial review states that in order to issue a claim, it must be submitted promptly but in any event within 3 months.

This route may be required in cases were the defendant is a public body.

Please note that Judicial Review is an extremely specialist area (public law) and so we would advise that legal advice is taken for each individual case.

Non Employment Discrimination – Basic Practice & Procedure

The Equality Act 2010 (EA 10) also provides disabled people with protection in the field of Service Provision, Education and Premises. Such cases are heard in a County Court OR Sheriff Court.

You have longer to start your claim than in employment discrimination cases: you will have 6 months less 1 day from the act of the discrimination that you are complaining of. So for example, if the incident you are complaining of happened on the 1st of May, you would have to submit the claim on or before the 31st of October.

Starting the Process

The Civil Procedure rules encourage potential litigants to write letters of complaints etc. before a claim (please click for more information) is started to see if the dispute can be resolved before issuing proceedings in a Court. It is always a good idea to send such letters by recorded delivery and to keep copies for future reference.

Making a Claim through the County Court System

The information provided on this page outlines the steps needed to put through a claim in the county court. However, we strongly advise against doing this alone as there is a higher cost risk than seen in an employment tribunal.

If you wish to bring a claim, you must send or take the following to the court:

  • One copy of a claim form (called form N1) for the court, for you and for each defendants. You can download a copy of the claim form by clicking here;
  • One copy of the particulars of claim for the court, for yourself and for each defendant (unless you have included the details of your claim on the claim form);
  • The court fee; and
  • A stamped self-addressed envelope, if the proceedings are being issued through the post.

Paperwork

All county courts have an N1 form and will give you copies for free. They also have leaflets about bringing about a claim and the current fees that you will have to pay. Form N1 starts the legal action so should be filled in very carefully as it is the first thing the court will read.

Be very clear and give details of all the things which have happened that you think happened as a result of the discrimination you experienced. You can get guidance from the court on how to fill out the form. The claim form will also need a statement of what damages you expect. If a precise figure cannot be included (which is usually the case where compensation for injury to feelings is claimed), the value should be estimated as up to £5,000; between £5,000 and £15,000; or more than £15,000. If you are not sure, you can put something like: ‘I cannot say how much I expect to receive’.

How much does it cost?

It costs money to go to court. The fee you will be expected to pay to the court depends on the amount you are claiming, including interest.

There are exemptions for paying court fees if one or more of the following applies to you:

  • You or your partner receives income support.
  • You or your partner receives pension credit guarantee credit.
  • You receive income-based Job Seeker’s Allowance.
  • Your gross annual income is below a set limit and you receive working tax credits with a ‘disability element’.
  • Your gross annual income is below a set limit and you, or your partner, receive working tax credit and child tax credit between yourselves.

If you can show that a payment of a court fee would involve undue hardship to you, the court manager may rule that you do not have to pay the fee, or that you can pay a reduced fee. This is called ‘fee remission’. More details on this can be given by the court and their leaflets.

Settling your case

You can agree to settle your case with the defendant at any time before the hearing. But if you reach an agreement with the defendant to settle your claim, you cannot then change your mind and ask the court to hear the complaint.

The ‘right track’

If the defendant decides to defend themselves against your claim, the court will then proceed by allocating your claim to an appropriate ‘track’. To help the court with its decision, the court will issue what is known as an ‘allocation questionnaire’.

You must complete and return the allocation questionnaire within the time specified on the form and with the fee required. A judge will then allocate your claim to ‘the small claims track’, ‘the fast track’ or ‘the multi-track’. You will be sent a notice telling you which track your claim has been allocated to and what you must do to prepare your case for trial or final hearing.

Which track your claim is allocated to depends on its value and other matters to do with the case:

  • The ‘small claims track’ is the normal track for claims worth no more than £10,000.
  • The ‘fast track’ is the normal track for claims between £10,000 and £25,000, where the trial is likely to last for no longer than one day.
  • The ‘multi-track’ deals with claims over £25,000 and up to £50,000.
  • Claims in excess of £50,000 fall into the jurisdiction of the High Court.

The small claims track is intended to be a simple and informal way of resolving disputes, which can be used without the help of a solicitor. The procedures for the fast and multi-tracks are more complicated. If your claim is allocated to either of them, you will probably need advice from a solicitor or a legal aid adviser. 

What you Might Get From your Claim

If your claim is successful, a county court may give you:

  • A declaration that the discrimination happened.
  • Compensation (known as ‘damages’) for any actual financial loss, and for injury to feelings or personal injury. Compensation will not be awarded for unintentional indirect discrimination.
  • An injunction to stop the service provider discriminating against you.

After the Hearing

If you do not agree with the judge’s decision, you can appeal. You must be able to show that:

  • There was a serious irregularity affecting the proceedings, or
  • The judge did not use the law correctly.
  • The time limit for appealing is 14 days from the date of service of the order.

If you are unsuccessful in your appeal, you may have to pay the defendant’s costs.

Enforcing Awards of Compensation

If you have succeeded in your claim but the defendant has failed to pay you the awarded compensation, you will need to ask the court to take further action. Court fees are payable for enforcement action but you will be reimbursed by the defendant if you are successful in getting the money you are owed.

You can get leaflets on enforcing your judgment from the county court.