Before you can claim discrimination, you must first show that you were disabled at the time the act of discrimination took place. This means that:
- You must have had an impairment (physical or mental);
- That impairment created adverse effects on your day-to-day activities;
- Those effects were more than minor;
- Those effects also lasted more than 12 months by the time of the act of discrimination. If not, you would be disabled if the effects can be said to have been likely to have lasted a total of 12 months or, if they had ceased, were likely to recur.
Both direct and indirect discrimination apply to disability. In addition, you will have been discriminated against if you have been treated unfavourably because of a reason related to your disability. This requires only that you have suffered some form of disadvantage because of something arising from your disability, for example absences or difficulties doing your job.
There is no need to compare yourself with a real or hypothetical colleague. However, this type of discrimination could be justifiable by your employer. Further, your employer could have a defence to the claim if he or she could not reasonably have known that there was anything wrong with you.
Finally, if you are put at a disadvantage when compared with non-disabled people, because of your employer’s premises or because of some requirement that is placed on employees, your employer has a duty to make reasonable adjustments to remove the disadvantage. If they fail, this would also be a form of discrimination.
However, the duty is limited only to reasonable adjustments. If your employer fails to implement something that is disproportionate or excessive, for example, it may not have failed in its duty. Again, your employer has a defence if it could not reasonably have known that you were disabled or that you were at a disadvantage.