If you are looking to make an Employment Tribunal claim for disability discrimination in your workplace, you must complete the following tasks:
As time limits apply, you need to make sure you make your claim within 3 months of any act of discrimination to be relied upon.
Unlike, for example, unfair dismissal claims, you don’t need to have worked for your employer for any minimum period of time. You can make your claim from ‘day one’.
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If you believe you have been a victim of disability discrimination in the workplace, contact our no win no fee employment solicitors for a free assessment of your case.
We will be able to advise you whether you have grounds to make a claim and represent you in the Tribunal, if necessary.
Our solicitors have over 25 years of experience helping people like you.
If you are still employed, you should always try and resolve matters in the first instance by using your employer’s internal grievance procedure and allow them the opportunity to put matters right.
If that fails, you have various options:
Once you have completed the online form, an ACAS officer will make contact with you to discuss your grievances with your employer.
They will then contact your employer and try to resolve the matters with your employer and act as the mediator.
Any agreement reached with the assistance of the ACAS officer may be formalised by way of what is called a COT 3 settlement agreement.
If they fail to achieve a resolution then they will issue what is called an ACAS Early Conciliation Certificate.
Once you have this you have 1 month to proceed to issue an Employment Tribunal claim if you are so minded (*may be longer – check out time limit calculator).
You cannot do this without an ACAS Certificate reference number.
Depending on the circumstances, you may feel that you can no longer continue to work for your employer. If this is the case and you are considering resigning from your workplace, before you hand in your notice letter, you may want to try to negotiate a settlement with your employer.
A Settlement Agreement is a legally binding agreement between you and your employer that usually provides you with terms for financial and non-beneficial benefits in return for your agreement not to pursue any claims against them in a Tribunal or a Court.
If your settlement negotiations are successful and you agree on a settlement agreement, your employment will most likely terminate and you may receive:
If you are in a situation where your employer is unwilling to negotiate with you to reach a resolution you feel you can no longer continue to work for your employer, we recommend that you seek advice of an expert employment solicitor before you take any steps to resign.
If you are unable to resolve matters internally with your employer through the grievance procedure or with the assistance of ACAS through Early Conciliation or by way of a settlement agreement, your last resort is to bring an Employment Tribunal claim.
You have to complete an online Tribunal claim Form called an ET1 setting out your details, those of your employer and details of your claim. We strongly advise against doing this yourself unless it is a simple wages claim and you should really seek the services of a professional Employment Law Solicitor to do this for you.
Employment Law is a very technical and complex area of law and there is every chance that you will fail to set out and omit material facts or legal claims from the outset that will potentially prejudice your claim and the level of financial outcome.
The claim is then passed to your employer by the Tribunal who then have 28 days to lodge their defence called a Form ET3.
The case will then be listed for a case management hearing usually by phone for an hour or so. This is where the Judge clarifies the issues in your case, sets a final hearing date and makes various procedural directions.
These include:
Eventually, the case will come around for the final hearing by video or in person. All parties and witnesses attend, with legal representatives. This can be a Solicitor or Barrister.
Each side presents their case and witnesses who are subject to cross-examination and questions from the Judge. After the Tribunal have heard the evidence of both sides and any closing submissions, they make a decision in the case. If applicable, they then move on to consider compensation.
If you are successful with your claim for disability discrimination in the Employment Tribunal, you may be able to pursue a few kinds of compensation.
If suffered as a result of the discrimination, you may receive compensation for:
Although rare, you may also be awarded ‘aggravated damages’. This type of compensation is awarded if the employer is found to have behaved particularly badly.
We have successfully helped hundreds of disabled employees and workers recover thousands of pounds in compensation:
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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 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.
Should I make a disability discrimination 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
Should I bring a disability discrimination claim to an Employment Tribunal?
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.
Why should I try negotiate a settlement with my 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.
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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