Incontinence and Discrimination
From 1 October 2010, the Equality Act replaced most of the Disability Discrimination Act (DDA). However, the Disability Equality Duty in the DDA continues to apply.
Equality Act 2010
The Equality Act 2010 aims to protect disabled people and prevent disability discrimination. It provides legal rights for disabled people in the areas of:
- access to goods, services and facilities including larger private clubs and land based transport services
- buying and renting land or property
- functions of public bodies, for example the issuing of licences
The Equality Act also provides rights for people not to be directly discriminated against or harassed because they have an association with a disabled person. This can apply to a carer or parent of a disabled person. In addition, people must not be directly discriminated against or harassed because they are wrongly perceived to be disabled.
More information about the Equality Act, and how you can obtain copies of the Act, can be found on the Government Equalities Office website.
Many disabled people have rights under the Act. Continence problems are a disability, just as a major mobility problem, although you may not consider yourself ‘disabled’.
The definition of a disability under the Equality Act 2010
In the Act, a person has a disability if:
- they have a physical or mental impairment
- the impairment has a substantial and long-term adverse effect on their ability to perform normal day-to-day activities
For the purposes of the Act, these words have the following meanings:
- substantial’ means more than minor or trivial
- long-term’ means that the effect of the impairment has lasted or is likely to last for at least twelve months (there are special rules covering recurring or fluctuating conditions)
- ‘normal day-to-day activities’ include everyday things like eating, washing, walking and going shopping
People who have had a disability in the past that meets this definition are also protected by the Act.
Progressive conditions considered to be a disability
There are additional provisions relating to people with progressive conditions. People with HIV, cancer or multiple sclerosis are protected by the Act from the point of diagnosis. People with some visual impairments are automatically deemed to be disabled.
Conditions that are specifically excluded
Some conditions are specifically excluded from being covered by the disability definition, such as a tendency to set fires or addictions to non-prescribed substances.
Where to get more guidance on the definition of disability
The government has published statutory guidance, to assist adjudicating bodies like courts and tribunals in deciding whether a person is a disabled person. This guidance is called Guidance on matters to be taken into account in determining questions relating to the definition of disability.
It was published for the purposes of the Disability Discrimination Act, but continues to apply under the Equality Act 2010, where appropriate. New guidance is expected to be published in spring 2011.
You can read the current guidance on the Equality and Human Rights Commission’s (EHRC) website.
The Equality and Human Rights Commission, which opened on 1 October 2007, has taken over the activities of the Disability Rights Commission. They run a dedicated disability helpline:
Equality and Human Rights Commission Disability Helpline:
FREEPOST Equality Advisory Support Service FPN4431
Telephone: 0808 800 0082
Textphone: 0808 800 0084
The helpline is open Monday – Friday 9am-8pm, Saturday 10am-2pm.
Should you tell your employer about your condition?
Although you may be uncertain about how an employer may react, there are good reasons for telling a potential employer about a disability, including continence. Employment is covered by the Equality Act 2010 (which replaced most of the Disability Discrimination Act). This means it is unlawful for employers to discriminate against disabled people in their recruitment and selection procedures.
Under the Act employers must also consider making any ‘reasonable adjustments’ you might need in order to enable you to work for them. Many people with bladder and bowel problems are covered by the Act (see our section on incontinence and discrimination or visit the UK Government’s website)
How do you decide when to declare a continence problem?
There is no easy answer. If you are applying for a new post it may be easier to declare on application or medical forms. If you are covered by the Equality Act 2010 it is unlawful for them to discriminate against you.
If you are in work the decision may be harder and depend on if you are making frequent or longer toilet breaks that others have noticed or needing time off to attend healthcare appointments. You may help others by being open and honest. You are unlikely to be alone. However you need be prepared for work colleagues to make fun of your problem, or your employer not being sympathetic. You must balance the protection the Equality Act may offer, against the reaction of work mates. You may not want others to know. Your union representative may also be able to help.
Things to consider at work
You might want to encourage your employer to speak to someone with expertise in providing work-related help for disabled people. Many people with long-term neurological or spinal conditions have bladder and / or bowel dysfunction so they should be used to dealing with these issues.