Disability discrimination


Employment law- Disability discrimination

The relevant legislation appears under the Equality Act 2010 (“the Act”), which provides there should be no disability discrimination at work.

How is ‘disability’ defined under the Act?

You have a disability if you have a physical or mental impairment that has “a substantial and adverse long- term effect on your day-to-day activities.”

There is no statutory definition of ‘impairment’ and the meaning of ‘substantial’ is ‘more than minor or trivial’. ‘Long term’ means the effect of the impairment has last or is likely to last for at least 12 months, and ‘day-to-day activities’ include common things for most people like using a computer, writing, following instructions, sitting down, standing up, driving and lifting.

People with HIV, cancer or multiple sclerosis, and some visual impairment are automatically protected by the Act, as soon as diagnosis is given-without having to show that the condition has a substantial and long-term effect on their ability to carry out normal day-to-day activities. On the other hand, some conditions are specifically excluded from being covered by the definition of disability, such as addiction to alcohol, nicotine and any other substance (unless the addiction is the result of medically- prescribed drugs or treatment.

Since a EU court ruling in December 2014, the effects of obesity can be considered to be a disability (but not the obesity itself). 

The Employment Appeal Tribunal has ruled that Type 2 diabetes cannot be a disability under the Equality Act.

Who is protected by the Act?

The Act applies to all employees, job applicants, trainees, contract workers, office holders (including company directors and managers), those who are on secondment and the self-employed. The Act covers all areas of areas of employment including recruitment, selection and promotion, the provision of training, the provision of benefits, retirement and occupational pensions.

What is disability discrimination?

Disability discrimination is where you are treated unequally because of your disability, your perceived disability or the disability is with someone with whom you associate (like a close member of your family). The Act deems that disability is a ‘protected characteristic’ and, accordingly,  discrimination is unlawful.

Disability discrimination can occur in several ways:

  • Direct Discrimination
  • Indirect Discrimination
  • Discrimination arising from a disability
  • Failure to make reasonable adjustments
  • Harassment
  • Victimisation

Disability discrimination can take place at interview stage, in the contractual the terms of your employment (or indeed whether you are offered employment at all), in promotion and transfer opportunities, when being dismissed, or whether you are subjected to any other detriment. Therefore, the law is designed to protect employees and workers with a disability during all aspects of employment.

Direct discrimination

This is where you have been, or would be, treated less favourably because of your disability than someone without a disability would be treated in the same circumstances (this person is “known as a comparator”).

A comparator can be a real or hypothetical person, but a tribunal must compare like with like (except, of course, for the existence of the disability). There must otherwise, therefore, be no material difference between your circumstances and the comparator. For example, if you claim to to have been rejected for promotion because of a certain disability, but your employer argues the decision was based entirely on experience and qualifications, the comparator must be someone of similar experience and qualifications as you, but who did not have the same disability. There does not have to be an exact clone- differences that are not “material” can be ignored.

It is also now possible to bring direct discrimination claims based on “association or perception” (where it is believed by your employer that you have a disability, but in fact you don’t). An example of discrimination by association might be where an employee who is caring for a disabled child or parent is not given the same opportunities as colleagues as a result of this association. Discrimination by perception means that where an employee does not have a disability under the Act, an employer’s belief that the employee has a qualifying disability and his consequential discrimination towards the employee will enable the employee to make a claim.

Indirect discrimination

This is where an employer operates a policy, provision or rule which, on the face of it, has nothing to do with disability but its effect is to disadvantage those who are disabled. For example, an employer may have a rule that all employees in a certain department must report for regular training in another part of the complex within a short time window during the day. Such a rule would adversely impact on someone who has a disability based on mobility.

Indirect discrimination can be objectively justified by an employer but the onus is on your employer to prove that the discrimination is a “proportionate means of achieving a legitimate aim”, which is not always going to be easy to prove. An example of where indirect discrimination can be justified in this way is where a prospective employer has a policy that workers need to be in good health for heavy manual work, and rejects an applicant with a severe back problem.

Arising from a disability

This means that discrimination can also arise if an employer treats a disabled person unfavourably because of something “connected” with their disability. For example, where an employee has a tendency to make spelling mistakes as a result of his or her dyslexia- this is something “arising from a disability”. To amount to unlawful discrimination, an employer must know, or reasonably expect to know, that the person in question has a disability.

Failure to make reasonable adjustments

The Act puts a duty on the employer to make reasonable adjustments for employees to help them overcome disadvantage resulting from impairment. A failure to do so also amounts to disability discrimination.

Examples:

Dyslexia

Examples of reasonable adjustments include: allowing a colleague to proof read documents, relaying instructions verbally as opposed to in writing, allowing you to record instructions or meetings instead of writing things down by providing a Dictaphone, and giving you more time to perform written tasks (where your duties involve this).

Visual impairment

Where you may be visually impaired, your employer might consider providing specialist technology or equipment to assist. In other cases, there may need to be physical alterations to the building or the desk space you are occupying.

Mobility

Where you have issues relating to your mobility, your employer should consider providing a nearby parking space on its premises, providing appropriate seating, allowing for regular breaks, and swapping roles with another colleague.

An employer also has a duty to make reasonable adjustments where it knows that a person has a disability and a “provision, criterion or practice” (PCP) puts them at a substantial disadvantage compared to the non-disabled.

A PCP has a broad definition. It refers to all rules and conditions that form part of your employment. These are not simply the formal policies contained within your contract or handbook, but all other arrangements and practices that exist within the workplace. Examples of these could be the hours that you are expected to work or a “hot desking”  type arrangement that puts you at a disadvantage because of your disability.

Payment from an employee towards the costs of making reasonable adjustments should not be requested.

Defences open to an employer against allegations of disability discrimination.

For an employer to be answerable for alleged disability discrimination, they must have known, or be in a position where they should have known, that the employee is disabled

Employers should, for example, be mindful of an employee who is on sick leave or who is having difficulty participating at work may be disabled, together with the duty not to discriminate and to consider what reasonable adjustments may apply. If challenged, employers will be required to show that they considered all the information before them and made reasonable enquiries about whether the employee was disabled.

What is ‘reasonable’ will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should also consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.

When does depression amount to a disability under the Equality Act?

The question of whether depression can amount to a disability is likely to focus on the effect the impairment has on your day-to-day activities (on a long term basis) in general. If the tribunal finds a long-term substantial adverse effect, it will, in most cases, follow “as a matter of common sense inference” that the you are suffering from an impairment which has produced that effect.

However, although there is no longer a requirement that the mental impairment be ‘clinically well-recognised’ in order to qualify under the Act, it is still likely that the Tribunal will want a qualified and informed medical opinion (from, for example, a consultant). Additionally, even where an employee satisfies the first element of the disability definition test by establishing an impairment, they must then be able to show that there are substantial adverse effects of their impairment and that the effects are long-term (must last, or be likely to last, for one year).

Depression and stress at work often go hand in hand. Click here to go to the stress at work page.

Harassment

Harassment occurs when, because of your disability, your employer engages in unwanted conduct which has the purpose or effect of (a) violating your dignity or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for you.

Examples of harassment might include negative or offensive remarks or jokes about an individual’s disability, unwelcome discussion of the impact of disability, refusal to work with and exclusion of people with disabilities from social events or meetings. Conduct shall be regarded as having the effect of violating someone’s dignity etc only if, in all the circumstances, including the victim’s perception, it could reasonably be seen as having that effect. The concept of the victim’s ‘reasonableness’ can sometimes make it difficult to win such cases.

Disability discrimination doesn’t necessarily have to be directed at an individual or individuals, it can be the general culture of the firm. Therefore, it is possible to claim even where the discrimination is not directed at the claimant personally. So, an able-bodied person can make a claim if he has witnessed and been offended by the discrimination of a disabled colleague.

The Act has extended the law on harassment to include third parties. This means that, in some circumstances, employers will be liable for harassment of employees by clients, customers, suppliers or patients. If your employer knew, or ought to have known that you have been harassed in the course of your employment on at least two previous occasions by a third party (not necessarily the same third party or the same form of harassment on each occasion) and has failed to make reasonable steps to prevent it happening again, he may be liable under the Act.

Victimisation

This is where an individual is treated less favourably as a result of having made, tried to make, helped someone else to make, or assumed to have made, a complaint or grievance of disability discrimination under the Act. There is no longer a need to compare treatment to an employee who has not done one of the above things.

Who is liable under the Act?

Liability for discrimination usually lies with the employer and/or any other employee who is found to have discriminated in the course of their employment (vicarious liability). As mentioned above, the employer will also be liable for the acts of third parties in certain circumstances.

Where the acts complained of are done by another employee, it is usually best to bring the Employment Tribunal application against both the employee and the employer.

Employers have a defence to a complaint of discrimination based on vicarious liability and third party harassment if they can prove that they took all reasonably practicable steps to prevent the discrimination.

Questions at interview

The Act has created a new provision which makes it unlawful for a prospective employer to ask a candidate about his health or sickness record before offering work. There are, of course, limited exceptions to this rule. Therefore, an employer may ask health-related questions where this is necessary to:

  • determine if and what reasonable adjustments need to be made for the applicant during the selection process. For example, it may be necessary to enable a deaf applicant to bring an interpreter into the interview room;
  • decide if an applicant can carry out an essential part of the job. For example, manual labour;
  • monitor diversity of people making applications for jobs;
  • take positive action to assist disabled people;
  • ensure that an applicant for a job that requires the employee to have a disability, does, in fact, have a disability.

Proof

It is for the person making the claim to establish that discrimination has occurred. The employee has to prove discrimination by the employer ‘on the balance of probabilities’.

This means that, although a tribunal might have doubts as to whether the employer discriminated, as long as the tribunal more than half believes that discrimination has incurred, it must decide in favour of the employee.

Once an employee has established facts from which it may be presumed that discrimination has occurred, it is up to the employer to prove that no such discrimination has in fact occurred.

Whether or not discrimination can be proved will often depend on what inferences a tribunal can draw from the primary facts. If they point to the possibility of disability discrimination, the tribunal may look to the employer for an explanation that proves there was no discrimination. If no such explanation is put forward or if the tribunal finds the supposed explanation inadequate or unsatisfactory it is open to the tribunal to infer that the discrimination was on the grounds of disability.

Raising a grievance

If you are still in employment and you cannot resolve the matter informally with your line manager, then it is best to first lodge an internal grievance. Your employer will then be obliged to convene a meeting without unreasonable delay to discuss your grievance. You may, however, still be able to bring a claim in the Employment Tribunal whilst you are still employed.

If you have already been dismissed and you think you have been discriminated against, you can lodge a claim for unfair dismissal and/or discrimination in the Employment Tribunal.

Remedies

An employment tribunal can award one or more of three remedies if it finds that an individual has been a victim of disability discrimination.

1.  A declaration, which states what the rights of the parties are;

2.  Compensation (further details below).

3.  A recommendation that the employer should take certain steps to remove or reduce the effect of the discrimination.

Compensation

Unlike in unfair dismissal, there is no ceiling on the amount of compensation a tribunal can award for disability discrimination. Compensation normally includes an award for injury to feelings and an award to take into account any loss suffered, for example loss of wages or pension. The awards for injury to feelings can vary, however many thousands of pounds is not uncommon.

The Court of Appeal have set out 3 bands of compensation guidelines for injury to feelings, depending on the seriousness of the case. These are commonly known as the ” Vento” guidelines, namely:

TOP BAND FOR THE MOST SERIOUS CASES: £19,800 to £33,000 (although it can exceed this in exceptional cases);

MIDDLE BAND:  £6,600 to £19,800

LOWER BAND FOR LESS SERIOUS CASES:  £660 to £6,600

 

Time limits

The Act imposes strict time limits throughout the procedure for bringing a case for disability discrimination. Good cases can be lost before they start through hesitation or delay.

If you suspect that you have been discriminated against by your employer, you should take advice as soon as possible.

The time limit for making a claim for disability discrimination to the employment tribunal is three months less one day from the last act of discrimination.  It is now mandatory to go through ACAS’s early conciliation scheme before you can submit a claim to the tribunal.

A discriminatory act may extend over a period of time so that it may be a continuing act if it takes the form of some policy, rule or practice by your employer. In these circumstances the three month period runs from the end of the continuing act.

Tribunals do have discretion to allow late claims to proceed, but there must be a good reason why a claim was not made in time.

You should obtain professional advice as soon as possible if you think you have a claim. For more information on your rights, please click here.

For further advice and a free consultation, please get in contact on 020 7100 5256 and ask to speak to Philip Landau or any member of the employment team, or email us.

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