We have extensive experience in advising employees on the law relating to disability discrimination, including unfair treatment, harassment, victimisation and failure to make reasonable adjustments.
The Equality Act 2010 (EqA) prohibits discrimination against individuals in the areas of employment, education, and the provision of goods, facilities and services for a protected characteristic (i.e. age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation).
You have rights whatever your length of service and the number of hours you work.
Disability discrimination does not simply affect those with a physical disability but can affect individuals where an impairment may not be obvious but still be protected under the EqA.
Disability is defined in the EqA as a person who has a physical or mental impairment, which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
The EqA protects not only those who currently have a disability but also those who have had a disability in the past.
Some conditions are expressly deemed to be a disability under the EqA:
Certain conditions are expressly stated not to be impairments under the EqA:
Other conditions are referred to as hidden disabilities or invisible disabilities and include:
Yes. An employer cannot be liable for:
unless it knew, or should have known, about your disability.
Discrimination arising from disability occurs where both:
There will not be discrimination arising from disability if your employer’s actions are justified. Justification must be on objective grounds with an objective balance between the discriminatory effect and the reasonable needs of your employer, there is no margin of appreciation.
Unfavourable treatment means a detriment of a kind that a reasonable person would or might take the view that in all the circumstances you have been disadvantaged. An unjustified sense of grievance cannot amount to a detriment.
No
comparator is required for a claim of discrimination arising from discrimination.
Direct disability discrimination occurs where because of your disability, you are treated less favourably than a person who does not have a disability.
Less favourable treatment means a detriment (see above).
In claiming direct disability discrimination, you will need to prove that you have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to yours.
The appropriate test requires an employment tribunal to consider the reason why you were treated less favourably: what was your employer’s conscious or subconscious reason for the treatment?
For the purposes of establishing direct disability discrimination, it does not matter whether the discriminator has the protected characteristic in question it can be perceived disability. Nor does it matter whether you have a disability it can be by association.
Direct discrimination will also occur if your employer instructs, causes or induces another to commit disability discrimination. It will also commit an infringement if it causes detriment to you because e.g. you refuse to obey an instruction to act in a way that would disadvantage persons with a disability.
Direct discrimination
cannot be
objectively justified, but an employer might be able to rely on an exception, perhaps by pointing to an occupational requirement or positive action, to avoid liability.
Discrimination in employment is generally prohibited.
However, there are exceptions which render what would be unlawful acts in fact lawful.
The main exceptions are:
Occupational requirements – an employer will be able to rely on this exception where:
Under the EqA, an employer is allowed to treat disabled people more favourably than non-disabled people, so the occupational requirement exception is unlikely to have much impact in disability discrimination claims. However, an employer who treats a person with one disability more favourably than a person with a different disability might need to rely on it.
Positive action
– where an individual with a disability, has a particular need or is disproportionately under-represented, an employer can take certain actions to address these problems without opening themselves up to discrimination claims brought by persons without a disability.
Indirect disability discrimination occurs where:
There will be no indirect discrimination if your employer’s actions are justified. To establish justification, your employer will need to show that there is a legitimate aim (i.e. a real business need) and that the PCP is proportionate to that aim. Justification must be on objective grounds with an objective balance between the discriminatory effect and the reasonable needs of your employer, there is no margin of appreciation.
In other words, indirect disability discrimination occurs where your employment is subject to an
unjustified condition, which because of your disability, you find more difficult to meet.
Employers (and service providers) are under a duty to make reasonable adjustments to individuals with a disability where a PCP applied by an employer or physical feature, places the disabled person at a substantial disadvantage.
The duty is also engaged where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with those who are not disabled.
The duty to make reasonable adjustments applies to employers in selection and interview procedures and the premises used for such procedures, as well as to job offers, contractual arrangements and working conditions.
Service providers are under a duty to make reasonable adjustments to customers, clients and [prospective] workers or employees with a disability where any physical feature of the premises occupied by an employer or an organisation, places the disabled person at a substantial disadvantage.
The EqA envisages reasonable adjustments being made in the following ways:
When considering if services are unreasonably difficult for disabled people to use, service providers should take account of whether the: time; inconvenience; effort; discomfort or loss of dignity in using the service would be considered unreasonable by other people if they had to endure similar difficulties.
Failure to make reasonable adjustments
cannot
be objectively justified.
The EqA prohibits employers from asking questions about health, other than for prescribed reasons to applicants. If you are an applicant, the EqA states that your health must not be questioned:
It also applies whether the employer (or someone acting on behalf of the employer) asks a question about you from a third party (e.g. for your former employer by way of a reference request).
Harassing you for a reason related to your age is unlawful, if the conduct is unwanted and has the purpose or effect of:
Such conduct will only amount to harassment if in all the circumstances, your perception of the conduct, is reasonably considered to have that purpose or effect.
Your employer will be able to avoid liability for harassment if it can show it took
reasonably practical steps to prevent it from happening.
Victimisation occurs where you are treated less favourably than another person whose circumstances are the same because you:
Less favourable treatment means a detriment (see above).
If you are an employee, worker or job applicant who believes your employer (or another worker) has discriminated against you then you can bring an employment tribunal claim.
If you who believe that an organisation has discriminated against you in the provision of goods, facilities and services, you can bring a claim in the county court.
Tribunals and courts can award unlimited compensation, which can include an award for
injury to feeling and
financial loss because of the discrimination.
An employment tribunal claim under the EqA relating to disability discrimination must be received by a tribunal within 3 months of the complaining act (i.e. 3 months less 1 day). This can be the last act in a series of detrimental acts over a period of time. The time limit is a strict one and will only be extended in certain circumstances.
The time limit can be extended during Acas early conciliation, which must be started
before
the time limit has expired.
Paddle & Cocks’ employment law specialists represent individuals at all levels no matter the size or sector of the company. If you feel that you have been subjected to unlawful discrimination, we can offer fast, reliable guidance on what to do.
The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.
Head Office:
Phone : 01872 672072