If you feel that you have been subjected to discrimination on the grounds of your disability, then generally, you will need to evidence first and foremost that you meet the criteria set out in Section 6 of the Equality Act 2010.
Proving that you have a disability requires the presentation of evidence that you meet the legal definition of holding a disability in the Equality Act 2010. The legal definition of a disability is as follows:
- The condition must be a physical or mental impairment;
- which is long term, and;
- has a substantial effect on your day to day activities.
‘Long term’ means that your condition must have lasted more than 12 months. ‘Substantial’ means that your condition must be more than minor or trivial.
During proceedings, your opponent may ‘concede’ or accept that you have a disability by virtue of previous disclosures made in relation to your conditions, however this is not always the case. It is common in practice that your opponent may deny having knowledge of your disability, or that they should have been aware that you are disabled, and in such circumstances, you will have to present evidence to them and the court/tribunal to establish that you have a disability within the meaning in the Equality Act 2010.
You may be required to present medical evidence to support any relevant diagnoses, including any medical reports, GP records or letters from any medical professionals involved in managing your care. In some circumstances, however, you may be ordered by a judge to produce an ‘impact statement’, which demonstrates the impact of your disability on your normal day-to-day activities and details about treatment and medication.
In some circumstances, you may be able to rely on the fact that your opponent should have had what is known as ‘constructive’ knowledge of your disability. For example, if your opponent is aware of some facts, but not all of the symptoms/effects of your disability, you may be able to persuade a court or tribunal that they ought to have reasonably been expected to know that you have a disability.
Whilst you are not under any duty to disclose your disability to either a public body, provider of services or your employer, it is important to note that your opponent cannot be liable for direct disability discrimination, discrimination arising from disability or failure to make reasonable adjustments unless they knew, or should have known about your disability at the relevant time. As such, whilst it is entirely at your discretion as to what you choose to disclose, if you feel that you require support or that failing to disclose your disability may negatively impact you, it may be advisable to make a disclosure.
In some circumstances, it is not always necessary to prove that your condition meets the legal definition of disability in the Equality Act 2010 aside from the evidence of diagnosis. In some circumstances, you may be considered to have a ‘deemed disability’, which have automatic protection under the legislation. This includes conditions such as cancer, HIV, and multiple sclerosis.
How can our discrimination solicitors help?
Our discrimination law team are experts in their field in advising both individuals and small businesses across the country.
If you are an individual requiring advice about whether or not you would be considered to have a disability in order to bring a potential claim in the County Court, or if you are currently engaged in proceedings and require assistance with any disability related court directions, we may be able to assist you.
Similarly, if you are an employer, service provider, or small business owner and you are unsure about your responsibilities for accommodating disability, please do not hesitate our specialist employment and discrimination law team for advice on 01616 966 229.
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