Disability Discrimination Solicitor
Have you been directly or indirectly discriminated against or harassed or victimised in the workplace on the grounds of your physical or mental disability?
What is disability discrimination?
Disability discrimination is the unequal treatment of someone because of their disability, perceived disability or the disability is with someone who they associate with such as a close family member.
The Equality Act 2010 (“the Act”) provides legislation that there should be no disability discrimination at work.
All employees, job applicants, trainees, contract workers, officeholders (including company directors and managers), those who are on secondment and the self-employed are protected by the disability discrimination provisions.
The Act also covers all areas of employment. These include:
- recruitment
- selection and promotion
- pay and benefits
- provision of training
- retirement
- occupational pensions
Disability discrimination at work, in the employment law context, covers the following types of discrimination:
- Direct discrimination
- Indirect discrimination
- Discrimination arising from a disability
- Failure to make reasonable adjustments
- Harassment
- Victimisation
How is ‘disability’ defined?
The Act defines “Disability” as a physical or mental impairment that has a substantial and long term adverse effect on [his or her] ability to carry out normal day to day activities.
To break this down further:
- The ‘impairment’ may be physical or mental, or both.
- The meaning of ‘substantial’ is more than minor or trivial, but it may fluctuate or change, and may not be present all of the time.
- ‘Long term’ means the effect of the impairment has lasted or is likely to last for at least 12 months.
- ‘Day to day activities’ looks at things such as mobility, manual dexterity, physical coordination, continence, ability to lift, carry or otherwise move everyday objects, speech and eyesight, memory or ability to concentrate, learn or understand, perception of risk or physical danger.
You are automatically protected by the Act if you have cancer, HIV infection, multiple sclerosis, or a visual impairment, as soon as the diagnosis is made. You will also not have to prove that your condition has a substantial and long term effect on your ability to carry out normal day to day activities as defined above.
Direct Disability Discrimination
Direct disability discrimination is where someone has been, or would be, treated less favourably due to their disability than someone without a disability would have been treated in the same circumstances (this person is “known as a comparator”).
A comparator for this purpose can be either a real or hypothetical person, but an employment tribunal must compare like for like (except, of course, for the existence of the disability). Therefore, there must be no other material difference between the comparator’s and your circumstances.
As an example, if you claim to have been turned down for promotion due to a certain disability, but your employer argues that the decision was based entirely upon qualifications and experience, the comparator must be someone who has similar qualifications and experience as yourself, but who does not have the same disability. There does not have to be an exact clone of circumstances – differences that are not “material” can be ignored.
Direct discrimination can take place at any stage of employment. It can occur:
- At an interview
- In the terms and conditions of your employment
- In promotion and transfer opportunities
- When being made redundant
- When being dismissed
Discrimination cannot be justified, save for very limited situations which are known as “occupational requirements” in almost all circumstances.
It is also possible to bring direct disability discrimination claims based upon “association or perception”. This is where it is believed by an employer that someone has a disability bit in fact does not.
An example of discrimination by association might be where you are the parent of or are the carer of a disabled child and you are not offered the same opportunities by your employer as a result of this association.
Disability discrimination by perception is where for example, an employee does not have a disability as defined in the Act but the employer’s belief that the employee has a qualifying disability and their consequential discrimination towards the employee will enable the employee to make a claim.
Indirect Disability Discrimination
Indirect disability discrimination is where a policy, provision or rule is operated by an employer which, at face value, is not related to disability in any way but its subsequent effect is to disadvantage disabled employees.
An example of this might be that an employer has a rule that all employees from department A must report to management for a presentation in another building within the site in a minimal time period during a busy time in the day. A rule such as this would adversely impact an employee who has a mobility-based disability.
Indirect disability discrimination can be objectively justified by an employer but they must be able to prove that the reason for the discrimination is a “proportionate means of achieving a legitimate aim”, which is not always an easy point to prove.
Indirect disability discrimination can be objectively justified in this way for example, where a prospective employer has a policy that employees need to be able to walk a minimum distance each day who then turns down an applicant who has mobility issues.
Disability Discrimination arising from a disability
Disability discrimination can also arise if an employer treats someone with a disability unfavourably because of something “connected” with their disability.
An example of this is where an employee has a tendency to make spelling mistakes as a result of their dyslexia. This is something “arising from a disability” and not the actual disability itself. Further examples include being absent due to an illness, issues with movement or difficulties with writing, reading, talking, listening or understanding.
Unlike direct disability discrimination, there is no requirement for a comparator and it can be justified by putting forward valid and non-discriminatory reasons for the unfavourable treatment.
To amount unlawful discrimination, an employer must know or reasonably expect to know, that the person in question has a disability.
Failure to make reasonable adjustments
Under the Act, an employer has a duty to make reasonable adjustments for employees to help them overcome disadvantages resulting from the impairment. Failure to carry out these reasonable adjustments amounts to disability discrimination.
Where a Provision, Criterion or Practice (PCP) puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with someone who is not disabled there is a duty for an employer to make reasonable adjustments.
A PCP has a broad definition. It refers to all conditions that form part of someone’s employment. These are not just the formal policies within a contract of employment or employee handbook, but all other arrangements and practices that exist within a place of work. An example of this could be a “hot desking” office environment that puts someone at a disadvantage due to their disability.
The duty only arises where the employer knows or should know that the employee is disabled.
Examples of reasonable adjustments include:
Dyslexia
Examples include allowing colleagues to proofread documents, relaying instructions verbally rather than in writing and giving you more time to perform written tasks.
Visual Impairment
Examples include your employer considering providing specialist technology or equipment to assist or making physical alterations to the building or the desk space you are occupying.
Mobility
Examples include your employer providing a parking space near to your place of employment, providing suitable seating, allowing for regular breaks and swapping roles with another colleague.
Payment from an employee towards the costs of making reasonable adjustments should not be requested by an employer.
Disability Harassment
Disability harassment occurs when, due to an employee’s disability, their employer engages in unwanted conduct which has the purpose or effect of either violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Examples of disability harassment might include:
- Negative or offensive remarks about someone’s disability
- Telling jokes or making fun of someone’s disability
- Unwelcome discussion regarding the impact of disability
- Refusing to work with people with disabilities
- People with disabilities being excluded from meetings or social events
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 be reasonably seen has to have that effect.
The concept of the victim’s ‘reasonableness’ can sometimes make it difficult to win such cases.
Disability discrimination can be the general culture of the organisation and doesn’t necessarily have to be directed at individuals. Therefore, it is possible to make a disability discrimination claim even where the discrimination is not directed at the claimant personally.
An example of this might be that an employee without a disability makes a claim that they have witnessed the discrimination of a disabled colleague and have been offended by this.
Harassment by third parties is now included in an extension to the law under the Act. This means that now employers will be liable for harassment on the basis of their employee’s disability by clients, customers, suppliers or patients in some circumstances.
If your employer knew or should have known that you have been harassed on at least two previous occasions during the course of your employment by a third party (not necessarily the same form of harassment or even the same third party on each occasion) and failed to prevent it from happening again by carrying out reasonable steps, then they may be liable under the Act.
Questions at interview
It is unlawful for a prospective employer to ask a candidate about their health or sickness record before offering would under a new provision in the Act.
There are limited exceptions to this rule however and therefore an employer may ask health-related questions where this is necessary to:
- understand what if any reasonable adjustments will be needed for the applicant during the selection process. For example, an interpreter may be required for a deaf applicant
- decide if an applicant can carry out an essential part of the job. For example, can they carry out heavy lifting?
- monitor the diversity of job applicants
- be pro-active in assisting disabled people
- ensure the applicant has a disability for a job role that requires the employee to have a disability
Victimisation
Disability victimisation is where someone is treated less favourably as a result of having made, tried to make, helping 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 the treatment to an employee who has not done one of the above things.
Burden of proof
The burden of proof that the discrimination occurred is on the person making the claim. The employee has to establish discrimination by the employer ‘on the balance of probabilities.
This means that whilst an employment tribunal may have doubts as to whether the employer discriminated, as long as the tribunal more than half believes that the discrimination has incurred, it must be decided in favour of the employee.
It is down to the employer to prove that no such discrimination has in fact occurred once the employee has established facts from which it may be presumed that discrimination has occurred.
It often depends on what inferences an employment tribunal can draw from the primary facts as to whether or not discrimination can be proved.
If they point to the possibility of disability discrimination, the tribunal may look to the employer to prove that no discrimination took place. If the employer is unable to prove this, puts no argument forward or if the tribunal finds the proof inadequate or unsatisfactory it is open to the tribunal to infer that the discrimination that took place was on the grounds of disability.
Raising a grievance
If you are still in employment and have been unable to resolve the matter with your line manager informally, then it is best to lodge an internal grievance. Your employer is then obliged to convene a meeting without any unreasonable delay to discuss your grievance.
You may still, however, be able to make an Employment Tribunal claim whilst you are still in employment.
If you have been dismissed and you believe you have been a victim of discrimination, you can lodge an Employment Tribunal claim for unfair dismissal and/or discrimination.
Remedies
There are one or more of three remedies an employment tribunal can award if it finds the claimant has been a victim of disability discrimination.
There are:
- A declaration, which states what the rights of the parties are,
- Compensation,
- A recommendation that the employer should take certain steps to remove or reduce the effect of the discrimination.
By far the most common remedy to a disability discrimination claim is the award of compensation.
Disability Discrimination Compensation Award
Unlike in cases of unfair dismissal, there is no hard limit on the amount of compensation an employment tribunal can award for disability discrimination.
Compensation can also include an element to cover injury to feelings and occasionally if the employee suffered an actual psychological injury, damages for personal injury. An award to take into account any loss suffered such as loss of wages or pension is normally included also.
The Court of Appeal has set out 3 bands of compensation guidelines which are commonly known as the “Vento” guidelines for injury to feelings. These are dependant on the seriousness of the case.
| Band | Lower Value | Upper Upper Value |
|---|---|---|
| Lower Band – Less Serious Cases | £660 | £6,600 |
| Middle Band | £6,600 | £19,800 |
| Top Band – Most Serious Cases | £19,800 | £33,000 (can exceed this in exceptional cases) |
No Win No Fee Disability Discrimination Solicitor & Making a Disability Discrimination Claim
If you have been directly or indirectly discriminated against or harassed or victimised in the workplace on the grounds of your physical or mental disability and want to make an Employment Tribunal Claim, contact our expert team.
We are a firm of Employment Law Solicitors with over 26 years of experience in representing Claimants in Employment Tribunals across the UK.
As well as free employment law advice, we offer a free initial assessment of your case. We often take on and succeed in cases where a Union or Insurer have declined to assist as they assess prospects of success as too weak.
If you would like to discuss your case with an expert, please fill in one of our contact forms. Alternatively, call us on 0800 612 9509 or send an email to dean@morrislegal.co.uk
If you would like to learn more about making a claim before you get in touch, follow this link to our Disability Discrimination Claim page:
Frequently Asked Questions
Who is liable under the Act?
The liability for disability discrimination usually lies with the employer and/or any other person who is found to have discriminated in the course of their employment (vicarious liability). As mentioned previously, the employer will also be liable for acts of discrimination by third parties in certain circumstances.
Where the acts of disability discrimination complained of are done by another employee, it is usually best to bring an Employment Tribunal claim against both the employer and employee.
There is a defence for employers to complaints of disability discrimination based upon vicarious liability and third-party harassment if they are able to prove that all reasonable steps were taken to prevent the discrimination from taking place.
Should I disclose my disability to my employer?
Employers 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 the employees’ disability.
The decision as to whether or not you choose to disclose your condition in its current form is entirely your at your discretion, but if you believe that it is likely to have a negative effect on your ability to work, it may be advisable to disclose the details of your disability to your employer.
If you choose not to disclose your disability to your employer they will not have the opportunity to make any reasonable adjustments. This means there is a potential that unfair assumptions could be made regarding, for example, the ability to perform your role.
What defences are open to an employer against allegations of disability discrimination?
An employer must have known or be in a position where they should have known that an employee has a disability for them to be answerable for alleged disability discrimination.
For example, employers should consider whether an employee who is having difficulty in carrying out their role or in participating at work may be disabled. They then must think about what if any reasonable adjustments may apply and of course the duty not to discriminate against them.
Employers, if challenged, must be able to show that they considered all the information available to them and made reasonable investigations into whether the employee was disabled or not. What is ‘reasonable’ is dependant on the particular circumstances. This is an objective assessment.
There are also exceptions to the general rule that an employer cannot discriminate against on the basis of disability.
These are:
Occupational Requirement
This allows employers to discriminate based upon their belief that someone with a disability may be unsuitable for a particular role. This covers all areas of employment ranging from recruitment through to promotion and dismissal.
Examples of this include:
- An applicant for a warehouse supervisor role who has mobility issues and uses a wheelchair may not be able to carry out certain aspects of their role.
- Someone who has a visual impairment would not be a suitable applicant for a role as a train driver
An employer still needs to demonstrate that the direct discrimination was a proportionate means of achieving a legitimate aim (i.e. that it related to a real need for the business and there was no less discriminatory route available) despite this exception existing. The onus is on the employer to prove this which is very often difficult to do so.
Objective Justification
This defence relates to indirect disability discrimination and/or discrimination arising from a disability. The onus again is on the employer to prove that the less favourable treatment was a proportionate means of achieving a legitimate aim.
Is depression defined as a disability under the Equality Act?
Whether or not depression can amount to a disability under the Act will focus on the effect it has on someone’s day to day activities as defined above on a long term basis.
If a long term substantial adverse effect is found by the employment tribunal then, in most cases, it will find that “as a matter of common sense inference” that the claimant is suffering from an impairment that has produced that effect.
Whilst however there is no longer a requirement that the mental impairment is ‘clinically well-recognised’ to qualify, it is still highly likely that the employment tribunal will want a qualified and informed medical opinion provided by a consultant for example.
In addition to this, even where a claimant meets the first element of the disability definition test by establishing there is an impairment, they must also be able to prove that there are substantial adverse effects of their impairment and that the effects are long term – meaning they must last or likely to last for one year.
Is there a time limit in bringing a disability discrimination claim?
The Act imposes strict time limits throughout the procedure for bringing a disability discrimination case. It is also now mandatory to go through ACAS’s early conciliation scheme before you can submit your claim to the employment tribunal.
The time limit for bringing a case of disability discrimination to the employment tribunal is three months less one day from the last act of discrimination.
You can read more about time limits on bringing an Employment Tribunal claim by visiting our dedicated time limits page.
It is important that you take advice as soon as possible if you believe you have been discriminated against by your employer.
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If you are looking for a No Win Fee Employment Law Solicitor to represent you, we need to assess the merits of your potential claim which we are normally happy to do free of charge.
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