Disability Discrimination

What Is Disability Discrimination?

Am I considered disabled?

You are considered to have a disability if:

  1. You have a physical or mental impairment, and
  2. The impairment has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities. (s.6 Equality Act 2010).

What does this mean?

  • An impairment includes, for example, being blind or deaf, MS, asthma, epilepsy, cancer, HIV and depression. However, addiction to alcohol, drugs or any other substances does not count as an impairment.
  • Normal day-to-day activities means things you do everyday like shopping, reading, getting dressed or eating but it does not include particular, more specialised activities like playing an instrument or sport.
  • The impairment must be substantial – this means more than minor or trivial. It still counts, if your condition is progressive, i.e. cancer or MS, and you have some symptoms now, but you are likely to be substantially impaired in the future.
  • ‘Long term’ means that the impairment must have lasted for at least 12 months or is likely to last for at least that long. For the purpose of deciding whether an impairment is continuing the effects of medication and treatment have to be ignored

The existence of a disability is often not disputed but if it is disputed it has to be decided by reference to medical evidence. Have I been discriminated against? There are four ways an employer can discriminate against you if you are disabled. Look at the examples below and if your case is similar to any of these you should call our specialist Employment Barristers today.

  1. Direct discrimination is when you are mistreated or dismissed because of your disability. For example, your employer promotes your colleague over you because you are in a wheelchair and he thinks that as a result, you would not portray the right image to prospective clients.
  1. Indirect discrimination is where a rule applies to everyone but impacts upon you, as disabled person, in particular. Suppose your manager changes the team meeting to 9am on a Monday morning and asks everyone to arrange their flexible working hours to ensure attendance. You never start work until 10am because you suffer from epilepsy and your attacks often happen in early morning.
  1. Discrimination arising from disability is when you are mistreated or dismissed because of something that has happened because you are disabled. For example, your manager dismisses you because you have had two months’ sick leave. However, he is aware that you suffered from MS and that this time off was due to your MS. You have not been dismissed because you have MS, but because of the time you took off due to you suffering from MS – you have therefore been dismissed because of something arising from your disability.
  1. Failure to make reasonable adjustments is when your employer fails in its the duty to make reasonable adjustments to rules and practices which are make life particularly difficult for you as a disabled person. For example your place of work has designated parking spaces for the senior management team which are very close to the office. You are not a senior manager, but walk with a frame. Your employer knows this. You should be assigned one of the spaces near the office, but you are not. Assigning you a space near the office could be a reasonable adjustment in the circumstances, but the employer is entitled to consider the effectiveness, practicability, cost and affordability of such an adjustment. If having considered this, giving you a space near the office is reasonable, a failure to do so will amount to discrimination. Unfortunately the duty to make reasonable adjustments does not apply where adjustments (e.g. altered hours) are needed to take account of the needs of a disabled friend or relative. (However in such a situation you may be able to argue that you have been constructively dismissed.)

There are two other types of claim that may arise as a result of your disability:

  1. Victimisation is when you bring discrimination proceedings, make an allegation of discrimination or give evidence about a complaint of discrimination and then you are treated badly as a result. For example, you were recently very ill with cancer and were off sick for a while. You are now in remission and have returned to work, only to find you have been demoted. You complained and your position and previous work was returned to you. As a result your colleague who was promoted to fill your job will not speak to you and has got his friends in the office to do the same. They have stopped inviting you to team meetings and social occasions. When you do speak to them, they hum to themselves and pretend not to hear you.
  1. Harassment is when you are subject to behaviour that is intended to mistreat or humiliate you or to create an intimidating, hostile, degrading, humiliating or offensive environment for you be in. For example, you are in a wheelchair and cannot move around much. Your colleagues call you names and keep asking for a go in your wheelchair. When you refuse they call you more names and don’t leave you alone until they can use your wheelchair.

How can I make a claim? Any claim for disability discrimination in the workplace must be made in the Employment Tribunal. You must make your claim within three months of the date of the act complained of, unless the tribunal considers it ‘just and equitable’ in the circumstances to hear the claim outside of that period.How do I finance a claim? There are many ways in which claim can be financed. You may be entitled to Trade Union support. More promisingly, you may find on close examination of your household insurance policies that your benefit from legal expenses insurance – YEB barristers are expert at dealing with insurers. The highly publicised Employment Tribunal Fees should never in fact be a barrier to a deserving ET claims What can I get? If your claim is successful, the possibilities are:

  • A declaration of your rights
  • A recommendation regarding the action your employer should take to reduce the effect the discrimination has on you
  • Compensation (no maximum amount). This is particularly important if your employer dismisses you in a way that is found to be discriminatory. If you were to claim only unfair dismissal your claim would be limited to £78,335 or one year’s pay whichever is the lower. If your dismissal is an act of discrimination this does not apply.
  • Your compensation can include damages for injury to feelings.

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