Disability Discrimination Claim
Need to make a Disability Discrimination claim?
Workplace Discrimination Guide
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Disability Discrimination Claim – How can we help you?
Need to make a Disability Discrimination claim?
We are a firm of expert 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.
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Making an Employment Tribunal Claim for Disability Discrimination
If you think you need to make an Employment Tribunal claim for Disability Discrimination at work, you must make it within 3 months less one day of the act of discrimination relied upon. This is also known as the “limitation date”; you can read more about it on our Discrimination Law page. We understand that the last date of discrimination can be difficult to pinpoint. However, you must be very careful that you don’t fall outside of the 3-month period.
You are also required to apply to ACAS for a certificate of early conciliation before the expiry of the primary limitation period. If you fail to apply for the certificate, you will not normally be able to bring your claim to the Employment Tribunal.
You also need to obtain evidence from a relevant medical professional confirming that you are in fact disabled.
You can bring a number of Tribunal claims;
- Direct Disability Discrimination on the basis that you have been treated less favourably than a real comparator or hypothetical comparator in the same or similar circumstances;
- Disability-related discrimination on the basis that you have been treated unfavourably because of something arising from your disability – such as a poor attendance record, or poor performance issues;
- Failure to make reasonable adjustments required to negate the disadvantage you may suffer because of your disability.
Lastly, you need to gather evidence of discrimination to prove your case in the Tribunal. Documentary evidence and, if applicable, witness evidence would be helpful.
Should I make a claim or reach a negotiated settlement?
Whether you should make a claim against your employer or not can be a difficult decision to make. You may be reluctant to make it out of fear of upsetting people. You may also be worried that making a claim may cause you more stress than you are already suffering, and may not want to risk damaging your career, or experience judgment.
However, it is often the case that people find it difficult to return to their job after they’ve been discriminated against. Some want justice and hold the person responsible for what they’ve done. This can help stop them from doing the same to another person in the workplace.
Apart from attempting to resolve the problem internally with your employer, you generally have 2 options. You can
- Bring a claim to the Employment Tribunal, or
- Try to negotiate a settlement with your employer.
Bringing an Employment Tribunal claim
Involving an Employment Tribunal is usually the last resort. However, it is a useful option, especially if you are unable to resolve matters internally with your employer and/or cannot reach a settlement with them.
If you require Employment Tribunal representation, our experienced Employment Law solicitors can help. Get in touch with us to discuss your case.
Negotiating a settlement with the employer
It is normally best to try to negotiate a settlement, and we recommend this before you resign from your job (if you feel you can no longer continue to work for your employer). This puts you in a much stronger negotiating position.
If you are successful with negotiating a settlement, a settlement agreement would normally be agreed upon. Under this agreement, your employment will usually terminate. In return for you agreeing to not pursue any claims against your employer, you would normally be provided with financial and non-financial benefits.
This may all sound daunting, so it is always a good idea to seek legal advice from an expert employment law solicitor before taking any steps. Any missteps in the process could lead to reduced prospects of reaching a settlement that you are satisfied with.
If you have been discriminated against, don’t hesitate to get in touch with us. Subject to a favourable assessment of the merits and depending upon the value of your claim, we may offer to represent you on a No Win No Fee basis.
What compensation can I receive if I make a Disability Discrimination claim?
If you are successful with your claim in the Employment Tribunal, you can normally pursue the following kinds of compensation:
- Any loss of earnings that you have suffered as a result of the discrimination;
- Compensation for injury to your feelings that you have suffered due to the discrimination;
- Any personal injury that you have suffered, including PTSD, or depression because of the discrimination;
- Aggravated damages – a rare award, normally relevant if there has been particularly bad behaviour on your employer’s part.
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). 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.
The Next Step
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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