Under the Equality Act 2010, a person has a disability 'if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities'.
'Substantial' is defined by the Act as 'more than minor or trivial'.
An impairment is considered to have a long-term effect if:
- it has lasted for at least 12 months
- it is likely to last for at least 12 months, or
- it is likely to last for the rest of the life of the person
Whether a person is disabled is generally determined by the effect the physical or mental impairment has on their ability to carry out normal day-to-day activities (the exception to this is people with severe disfigurement). Normal day-to-day activities are not defined in the Act, but in general they are things people do on a regular or daily basis, for example eating, washing, walking, reading, writing or having a conversation.
People who have had a disability in the past are also protected against discrimination, harassment and victimisation. This may be particularly relevant for people with fluctuating and/or reoccurring impairments.
The Special Educational Needs and Disability (Northern Ireland) Order 2005 (SENDO) and the Disability Discrimination (Northern Ireland) Order 2006 prohibit discrimination and harassment for disabled people in Northern Ireland.
The Equality Act 2010 places a duty upon higher education institutions to make reasonable adjustments for staff, students and service users in relation to:
- provisions, criteria or practices
- physical features
- auxiliary aids
These adjustments apply where a disabled person is placed at a substantial disadvantage in comparison to non-disabled people. It is important to note that an institution can treat a disabled person favourably compared to a non-disabled person, and this would not amount to direct discrimination of a non-disabled person.
Discrimination arising from disability
In addition to direct and indirect discrimination, people with a disability are also protected from discrimination arising from disability. This can occur when a disabled person is treated unfavourably because of something connected to their impairment and the treatment cannot be justified.
In Northern Ireland disability-related discrimination has not been replaced by discrimination arising from disability as defined by the Equality Act 2010.
A staff member takes a number of days off work for reasons arising from their impairment (for example ME). The institution does not have a disability absence/leave policy and therefore records all staff absence, whatever the reason, in one system.
The staff member is then disciplined for their high absence record, without the institution taking into account the disability-related absence/leave.