Disability Discrimination

Discrimination law is an area of law that provides legal framework for effective protection of individuals’ rights to equality. In the UK, the discrimination laws state that no individual shall be treated less favourably because of certain protected characteristics such as sex, race, disability or religion. The law also sets out duties for public organisations and institutions to actively develop and promote equality rights. The current anti-discrimination law is based on the Equality Act 2010, which came into force on 8 April 2010, replacing the Sex Discrimination Act 1975.

What are the protected characteristics under the discrimination law?

The abovementioned protected characteristics include discrimination on the basis of:

Gender (including gender reassignment);
Disability;
Sexual orientation;
Religion or lack thereof;
Membership or non-membership in organisations or associations such as trade unions;
Marital status (this also includes discrimination due to pregnancy or maternity).

What areas are covered by the discrimination law?

The new anti-discrimination legal framework applies and prevents discrimination in the following:

Education;
Employment;
Access to services, facilities and goods;
Public bodies’ functions.

Types of discrimination

There are different types of discrimination covered by the anti-discrimination laws. The main types can be identified in the context of employment and disability.

Disability and Discrimination Law

Equality Act 2010 states that it is unlawful to discriminate against disabled persons because of their disability. The disability can occur in a number of situations but one of the most common is employment. In this context no employee or job applicant should be placed at a disadvantage due to their disability. Particularly, the recruitment process should be transparent and suitable disabled candidates should not be denied employment simply because for instance they use a wheelchair. The recruitment processes as well as policies for existing workforce should be compliant with law and assure that disabled people are not indirectly discriminated against.

Importantly, employers are required to make reasonable adjustments for disabled employees. Disabled employees should notify employees of any problems that they may be encountering at their workplace such as accessibility difficulties for those using a wheelchair. The phrase ‘reasonable adjustments’ is used to allow employers’ to carry out an evaluation process. Factors that employers can take into account when assessing application for adjustments include cost, time and potential benefit of the improvement. For instance, it might be disproportionate to make a £1mln warehouse restructure for one person that does not require access to that part of the building.

Employment Law

In employment there are four core kinds of discrimination that may occur, namely:

direct discrimination – happens where an individual is discriminated against because of one of the protected characteristics such as sex or religious beliefs.
indirect discrimination – this form of discrimination is less transparent and occurs where all individuals are treated equally and in accordance with the same policies. The procedures or policies in place however practically disadvantage one group of individuals against the other (i.e. women against men or homosexuals against heterosexuals).
harassment – broadly speaking harassment also known as victimisation takes place when a person is treated in an intimidating way due to their sex, marital status or sexual orientation.

The above types of discrimination apply to all workers including directly employed employees, agency workers, contractors and self-employed. Discrimination can occur while being employed as well as during the recruitment process.

Is it difficult to successfully bring a discrimination claim?

It is difficult to give you an exact answer as the outcome is largely dependent on particular circumstances of the case. Strength of every case lies in the amount and type of evidence available. Particularly, records such as CCTV recording, statements from witnesses or copies of formal and informal messages may prove to be useful.

What is the amount of compensation ?

This again depends on the case that you present. Standard discrimination law cases include compensation for the following:

Loss of Salaries;
Emotional Suffering (that may also include any associated diagnosed psychiatric illnesses that were caused by the discrimination).

It is possible to also claim for ancillary losses such as costs of transport to and from doctor or psychiatrist. Most claims also include provision for interest on the amount of compensation awarded.

David Winston - employment law partner at Waring Solicitors

If you feel you have been discriminated against, please contact me for further advice. I can be reached via the Waring solicitors site or you may alternatively visit the employment law section of our site also.

Direct Discrimination

This would be where an employer treats an employee less favourably because of a disability. The employee would need to highlight a relevant comparator i.e. a colleague in a similar position without a disability. If they are unable to do this they can rely on a hypothetical comparator.

Indirect Discrimination

Applying a provision criterion or practice that disadvantages employees with a disability without justification, this would include general work policies or procedures which placed disabled employees at a significant disadvantage.

Reasonable Adjustments

Where an employer has or should have knowledge or disability then they are required to make reasonable adjustments if a worker is placed at substantial disadvantage. There is some guidance provided in relation to the Equality Act 2010 as to what amounts as to reasonable adjustments. Generally speaking they include issues such as adjustments to premises, providing information in accessible formats, transferring the disabled person to fill an existing vacancy, altering hours or training, acquiring or modifying equipment, providing supervision or other support and/or modifying work procedures.

Victimisation / Harassment

It is unlawful under the Equality Act 2010 to victimise or harass an employee in relation to their disability.

There is a statutory defence open to employers in certain circumstances, so that is if they have taken reasonable steps to prevent such conduct from taking place in their office. They would need to show that they have undergone, for example, appropriate training of staff and monitoring of any complaints or grievances raised. They would also need to show that they have taken appropriate steps to deal with such issues. As well as employers being liable for any disability discrimination there is also potential for a personal liability for those employees who carried out such treatment.

Under the Equality Act 2010 a person is a disabled if they have a physical or mental impairment, and impairment has a substantial and long-term adverse effect on their ability to carry normal day to day activities (Section 6(i)).

If there is any dispute as to whether the employee is disabled or not then they should be assessed first of all by an occupational health professional. If they subsequently bring a claim then may be the need to obtain a medical report to determine whether or not they are covered by the Equality Act 2010.

The condition must be more than minor or trivial or the standard is relatively low, but it must have a substantial adverse effect on their ability to carry out day to day activities.

It therefore important that employers establish at an early stage whether someone is disabled for the purposes of the Equality Act 2010 and if they are, they must act in accordance with those provisions and the guidelines / protections outlined. If there was any long-term sickness / absence then they must manage that properly as well, and to determine whether the condition amounts to disability, in which case they have obligation to consider reasonable adjustments in order to facilitate a return to work.

efrb.org.uk

Category Archives: disability discrimination

Discrimination law

Disability discrimination