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Discrimination under the Equality Act 2010

If you are looking after someone who is elderly or disabled, the law - under the Equality Act 2010 - will protect you against direct discrimination or harassment because of your caring responsibilities.


Note: This information applies to people living in England, Wales & Scotland. In Northern Ireland carers are protected under the Human Rights Act and Section 75 of the Northern Ireland Act, which requires public bodies to promote equality of opportunity for carers. In some cases carers may also have rights under disability and sex discrimination legislation. If you live in Northern Ireland and feel that you have been discriminated against at work because of your role as a carer, contact Carers Northern Ireland on 028 9043 9843 or at This email address is being protected from spambots. You need JavaScript enabled to view it. for expert advice.


The reason that carers are protected against direct discrimination and harassment is because they are counted as being 'associated' with someone who is protected by the law because of their age or disability. 

This information explains discrimination by association and harassment, which may be useful if you feel you have been treated unfairly because of your caring role. It also explains other forms of discrimination, which may be useful if you feel the person you are looking after has been treated unfairly because of their age or disability. This may include unfair treatment in relation to the workplace, education, housing, when buying goods or services or accessing public services.

Note: For a summary of the statutory rights in work which may be of interest to you as a carer download our factsheet 'Your rights in work'.


Does the Equality Act apply to my situation?

There are three things to keep in mind when thinking about whether the Equality Act applies to your situation:

Protected characteristics - why have you or the person you are looking after after been treated unfairly?

Sector - where did the unfair treatment happen?

Prohibited conduct - how were you or the person you are looking after treated unfairly?

The following information goes through each of these areas in turn, so you can see whether the Equality Act provides protection in your particular case. It then looks at what practical steps you can take if you have been unlawfully discriminated against.

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Protected characteristics

The Equality Act protects against being treated unfairly because of:

  • age
  • disability
  • gender reassignment
  • marriage or civil partnership
  • pregnancy
  • race
  • religion or belief
  • sex
  • sexual orientation

These are known as “protected characteristics” and where someone is treated unfairly because of them, this is called “discrimination”.

In some cases, the Equality Act can also protect carers from being treated unfairly because of their association with the person they care for; this is called “discrimination by association”.

This information focuses mainly on “disability discrimination” and “discrimination by association”, but it is important to be aware that the Equality Act applies to all of the above characteristics. Therefore if you, or the person you are looking after, have experienced discrimination because of any of the characteristics listed above, then you should get some further advice - see our list of useful organisations.

What counts as a "disability" under the Equality Act?

The following conditions are automatically counted as disabilities under the Equality Act:

  • cancer
  • HIV infection
  • Multiple Sclerosis
  • severe disfigurement – not including tattoos and piercings
  • if you’re certified blind, severely sight impaired, sight impaired or partially sighted by a consultant ophthalmologist.

If none of these apply, The Equality Act says that you count as disabled if you have a:

‘physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities’.

When considering whether this applies to you situation, bear in mind that:

  • “impairment” is not defined in the Act but will include the effects or symptoms of the illness, as well as the diagnosis
  • “substantial” means the effect of the illness on your life must be more than small or minor
  • the impairment will count as “long term” if it’s lasted for at least 12 months; or is likely to last for at least 12 months; or is likely to last for the rest of your life
  • “adverse” means negative

Some “physical and mental impairments” that may meet this definition include:

  • mental health conditions - (e.g. depression, anxiety disorders, schizophrenia etc.)
  • autism spectrum disorders
  • learning disabilities
  • progressive conditions (e.g. motor neurone disease, dementia etc.)
  • conditions affecting organs (e.g. heart disease, bronchitis, strokes etc.)
  • conditions such as arthritis, fibromyalgia, ME
  • impairments due to injuries to body or brain

Note: Addiction to substances does not count as a disability under the Equality Act, but conditions caused by this may (e.g. liver disease, depression).

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Sector

The Equality Act covers you and the person you care for in relation to:

  • employment (e.g. applying for jobs or work place practices)
  • education (e.g. school, colleges, universities)
  • housing (e.g. buying and renting houses or flats)
  • goods or services (e.g. shops, restaurants and public services etc.)
  • travel and transport
  • public authorities (e.g. local council, NHS, local authority schools)
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Prohibited conduct

Once you have established why you, or the person you are looking after, have been treated unfairly and where this has taken place, the next step is to consider whether this unfair treatment is unlawful under the Equality Act. The different types of discrimination are outlined below.


Direct discrimination

Direct discrimination is where someone with a protected characteristic such as a disability is treated less favourably than someone else in the same situation who does not share the protected characteristic.

Example: A restaurant only allows a family with a child who has Downs Syndrome to sit at the back of the restaurant, as the waiter says they will not “put off’ other customers there.

Protected characteristic = disability (Downs Syndrome)

Sector = services (restaurant)

Prohibited conduct = direct discrimination

When proving direct discrimination you will need to have what is called a “comparator” against which to compare how you were treated (the idea being that if they do not have the given characteristic and were treated more favourably as a result, this may demonstrate that you have been treated unfairly because of the protected characteristic). The comparator does not need to exist and can be hypothetical. For example, to consider the above scenario, even if the restaurant were empty in practice, it could still be argued that if a family with a non-disabled child were to come into the restaurant (hypothetically speaking) they would not be forced to sit at the back out of sight.


Indirect discrimination

This is where there is a general rule, criteria or practice that applies to everyone but in practice it particularly disadvantages people with certain protected characteristics.

Example: An employer changes a job description to restrict applicants to those who have a driving licence, even though this is not a requirement of the role. This applies to everyone but indirectly discriminates against people with certain mental health conditions that mean they cannot hold a driving licence.

Protected characteristic = disability (mental health condition)

Sector = employment

Prohibited conduct = indirect discrimination

Indirect discrimination is unlawful unless it can be shown to be a “proportionate means to achieving a legitimate aim” (often called ‘objective justification'). The Equality Act does not define what a ‘legitimate aim’ is, but it cannot be discriminatory in nature. It may include:

  • reasonable business needs (although just cost cutting wouldn’t be included)
  • statutory duties
  • health and safety reasons

As well as being a “legitimate aim”, the indirect discrimination must also be “proportionate” if it is to be lawful. In other words, there needs to be a fair balance between the service or employer’s needs and the rights of the disabled person. This means the indirect discrimination must be appropriate, necessary and the least discriminatory way of achieving the “legitimate aim”.

This can be a difficult area to understand, so if this applies to you, you may wish to get some further advice - see our list of useful organisations.


Discrimination arising from a disability

This is where someone with a disability is treated unfairly based on something connected to their disability rather than the disability itself.

Example: A night club refuses to let a person who has Cerebral Palsy in as they believe the individual is too drunk because of slurred speech, when in reality the slurred speech is a consequence of the impairment.

Protected characteristic = disability (Cerebral Palsy)

Sector = services (night club)

Prohibited conduct = discrimination arising from a disability

Like with “indirect discrimination”, “discrimination arising from a disability” is unlawful, unless it can be shown to be a “proportionate means of achieving a legitimate aim”. You can read more about what this means in the above section on “indirect discrimination”.


Discrimination by association

This is where someone is treated less favourably because of their link or association with the protected characteristic of someone else (such as a carer’s link to the disabled person they are looking after).

Example: An employer disciplines an employee because they have taken time off to care for their disabled mother. The employer has not disciplined other workers who have had similar amounts of time off work. This directly discriminates on the basis of the employee’s association with her mother’s protected characteristic (i.e. disability).

Protected characteristic = disability (by association)

Sector = employment

Prohibited conduct = direct discrimination

Discrimination by association only applies where someone experiences direct discrimination because of their association with a protected characteristic. You can read more about what is needed to show direct discrimination above.


Failure to make reasonable adjustments

Employers and service providers have a legal duty to make reasonable adjustments if they place disabled people at a substantial disadvantage because of one of the following:

  • a provision, criterion or practice
  • a physical feature
  • the lack of the provision of an auxiliary aid or service

Adjustments can include changes to the above, but whether or not there is a duty to make them depends on whether this would be “reasonable”, giving consideration to factors such as the following:

  • effectiveness of the adjustment to ending the substantial disadvantage
  • practicality of the adjustment
  • extent of the disruption caused
  • extent of available resources
  • factors relevant to specific sector

Example: An employer has a policy that only designates car parking spaces to senior members of staff. There is no other nearby parking. An employee with Multiple Sclerosis has mobility problems and this policy places them at a substantial disadvantage of accessing the office.

It is arguable that a reasonable adjustment could be for the employer to change the policy to allow the employee with mobility needs to have an allocated parking space, as this would be effective in ending the substantial disadvantage, fairly easy to implement and not cost anything.

Protected characteristic = disability (Multiple Sclerosis)

Sector = employment

Prohibited conduct = failure to make reasonable adjustments

There are sector specific factors that apply to the legal duty to provide “reasonable adjustments”, so if this applies to you, you may wish to get some further advice - see our list of useful organisations.


Harassment and victimisation

The Equality Act also protects you and the person you are looking after from employers or service providers harassing you about a protected characteristic and from being treated badly for exercising your rights under the Act.

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What steps can I take if I have been unlawfully discriminated against?

Generally speaking there are 6 potential steps to challenging discrimination under the Equality Act. In many cases, it will not be necessary to go further than step 2.

Step 1: Check whether unlawful discrimination has happened. If so go to step 2.

Note: It can help at this point to get some specialist advice, as there may be impending deadlines for taking legal action which may alter the order in which you should proceed - see our list of useful organisations.

Step 2: Complain informally about the discrimination with the relevant establishment.

For example, you can speak with or write a letter to the people who have discriminated against you or the person you are looking after. It is worth keeping a record of any conversations, meetings and correspondence regarding the issue.

If the informal complaint is not resolved go to step 3.

Step 3: Make a formal complaint. Check the time limits for making your complaint.

If there's a complaints/grievance procedure, follow the procedure. If there isn't a complaints/grievance procedure, complain in writing.

If the complaint isn't resolved go to step 4.

Step 4: Escalate your complaint to an independent organisation. Check the time limits for making your complaint.

If the independent complaints procedure does not resolve matters go to step 5.

Step 5: Consider mediation, conciliation or arbitration.

If this still doesn’t resolve matters go to step 6.

Step 6: Take legal action.

Employment tribunals - there is a strict time limit of three months less one day to ask them to look at your case.

County Court – if you have been discriminated against by a service provider, you can take this to the county court. There is a 6 month deadline for this.

Note: If you are on a low income, you may be able to get legal aid to pay for specialist legal advice to help with your case - see our list of useful organisations.

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Useful organisations

Equality Advisory and Support Service

The Equality Advisory and Support Service advises and assists individuals on issues relating to equality and human rights.

Helpline: 0808 800 0082 (textphone 0808 800 0084) open Monday to Friday 9am to 8pm and Saturday 10am to 2pm.

You can also email using a form on their website.

ACAS

ACAS provides information, advice, training, conciliation and other services for employers and employees to help prevent or resolve workplace problems.

Helpline: 0300 123 1100 (text relay service 18001 0300 123 1100) open Monday to Friday 8am to 8pm and Saturday 9am to 1pm.

You can also ask a question online.

Civil Legal Advice

Civil Legal Advice might be able to give free confidential advice on discrimination if you are eligible for legal aid.

Carers UK Adviceline

The Carers UK Adviceline offers advice on financial and practical matters related to caring, however cannot offer specialist discrimination advice.

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