Disability laws in Great Britain and Northern Ireland
There is an important difference between the way disability discrimination is treated in Great Britain (GB) and Northern Ireland (NI).
Disabled people in the rest of the UK are protected from discrimination arising from disability under the Equality Act 2010. However, Northern Ireland has its own equality legislation, which doesn’t include an equivalent generic law that protects someone from being treated unfavourably at work because of their disability.
For example:
- A disabled person is dismissed for taking time off work due to their disability
- A person with a stammer is refused a customer-facing role because they communicate more slowly
- An HIV-positive person is asked invasive and personal questions about their lifestyle when applying for a job (health questions are only allowed in specific circumstances)
- A colleague uses derogatory language relating to a person’s disability
In GB, those situations would be counted as discrimination unless the employer can justify their decision – but that is not necessarily so in NI.
That doesn’t mean that disabled people in Northern Ireland have no protection at all. NI employees are covered by the Disability Discrimination Act (DDA) 1995. One problem is that the DDA has different provisions for disability discrimination, depending on the setting where the discrimination occurs.
A bit of history
Not all the provisions of the Equality Act apply in Northern Ireland. That’s because responsibility for policy related to ‘equality of opportunity’ was devolved to the Northern Ireland Executive by Part VIII of the Northern Ireland Act 1998.
The 1998 Act led to The Belfast (Good Friday) Agreement, which committed to: “The right to equal opportunity in all social and economic activity, regardless of class, creed, disability, gender or ethnicity”.
Here’s a brief overview of some of the differences…
Direct discrimination
The Equality Act 2010 protects a person in GB with a protected characteristic (such as disability) from discrimination in all scenarios. In NI, the DDA is different in relation to goods, services and facilities, so it’s less comprehensive.
In NI, direct discrimination is defined as discrimination that arises because of the disability, as distinct from discrimination due to the person’s ability (or lack of). For example, it would be discrimination if an employer makes assumptions about what a disabled person can and can’t do.
An employer can have no justification for discriminating directly against a disabled employee.
Disability-related discrimination
Northern Ireland has a law covering disability-related discrimination. It applies when someone treats a disabled person less favourably than they treat others who are not disabled. This is unlawful unless the employer can show it is justified.
However, in 2008 the House of Lords in London Borough of Lewisham v Malcolm interpreted disability-related discrimination in a very restricted way, so it means almost the same as direct discrimination. That’s the definition which still applies to this day.
By contrast, GB doesn’t have a concept of ‘disability-related discrimination’. There, the Equality Act introduced ‘discrimination arising from disability’ and ‘indirect disability discrimination’, but this didn’t happen in Northern Ireland.
Indirect discrimination
Indirect discrimination is where a policy or practice favours one group over another, such as a rule that doesn’t allow employees to book medical appointments during working hours.
In GB, this would be unlawful as it disadvantages people who have a disability, but if this happens in NI, the only way to claim is for disability-related discrimination.
Discrimination by association
In the rest of the UK, a person is protected against being treated less favourably because they associate with a disabled person, for example, carers, friends and family.
That doesn’t apply in NI, where the legal protection only covers the disabled person, not those who associate with them. Since Brexit, it’s even more confusing, because discrimination by association is covered in EU law.
Perceived discrimination
You don’t actually have to be disabled to be protected by disability discrimination law in GB. If you are thought to be disabled (even if you’re not) and you’re discriminated against because of that, you’re covered by the Equality Act 2010.
On the other hand, perceived discrimination can’t be claimed in NI.
Harassment
In the rest of the UK, disabled people are protected against being harassed in any context, while in NI, they are only protected at work and in educational establishments. Again, the NI disability discrimination law is more restrictive in what it covers.
Victimisation
This covers discrimination against you because you have complained about the treatment you (or another disabled person) received at work. Here at least, the GB and NI have broadly similar protection.
Positive discrimination
In GB, employers are lawfully allowed to increase the representation of people with a protected characteristic. For example, they can promote someone who is disabled over someone who isn’t, as part of ‘achieving a legitimate aim’.
There is no equivalent in NI law to help disabled people overcome the disadvantages they experience in the workplace.
Reasonable adjustments
Under the Equality Act 2010, employers must make reasonable adjustments to cater for employees who have a disability. For example, they might amend their usual absence policy to allow a disabled person to attend regular medical appointments during working hours, or seat them nearer to the toilet if they need it more frequently, or give them a parking space near the entrance because they find mobility difficult.
In NI, in some contexts, the employer is allowed to justify why they should not have to make reasonable adjustments like this.
Harmonising the law
The Equality Commission (EC) has long called for harmony between the disability discrimination laws in GB and NI, but that hasn’t yet come to pass. They also want to strengthen protection in NI against age, sex and race discrimination, as individuals in Northern Ireland still don’t benefit from the same level of cover as the rest of the UK.
Back in 2014 the EC said: “Vulnerable and marginalised individuals in Northern Ireland who experience discrimination have less protection against unlawful discrimination, harassment and victimisation across a number of equality grounds than their counterparts in GB.”
In 2022, the EC again highlighted the fact that: “[In Northern Ireland], stronger protection is needed for discrimination against disability”.
Part of the stated goal of the Equality Act 2010 was: “To reform and harmonise equality law and restate the greater part of the enactments relating to discrimination and harassment related to certain personal characteristics”.
By comparison with the Equality Act 2010, NI law has failed to keep pace, and unfortunately remains overly complex and often unclear.
Paul Doran – Director
What this means to you
If you’re disabled and have been mistreated at work anywhere in Great Britain or Northern Ireland, we can help.
We are expert employment lawyers with offices in Belfast, Leeds, London and Gateshead. We have experience of dealing with disability discrimination cases under the relevant legal framework for each country, and can advise you what to do.
To get started, please give us a call on 0808 168 7288 for a no-obligation chat.
Related reading
For more on the subject of disability discrimination, you might like to read some of our related articles. These include:
- Disability discrimination: Big settlements
- Case study: Disability discrimination
- How much money can I get for disability discrimination?
- What is disability discrimination?
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