Discrimination on the basis of disability is unlawful under the Equality Act 2010 (“the Act”). Therefore no employee or worker (including those who are deemed to be self-employed) should be discriminated against because of their disability during the recruitment process, redundancy or dismissal procedures.
If you have been refused employment, offered employment on less favourable terms, denied promotion, training of other benefits, subjected to a detriment, dismissed or subjected to unwanted conduct, and you believe this occurred because of your disability; you may have a claim for disability discrimination.
Who is a disabled person?
To fall under the definition of being a ‘disabled person’ you must prove that you have a physical or mental impairment, and the impairment has a substantial and long term effect on your ability to carry out normal day-to-day activities.
Types of discrimination
1. Direct discrimination: This is where someone is treated less favourably and that less favourable treatment is because of their disability.
This means, for example, that an employer cannot refuse to hire a disabled employee purely because of their disability, unless this is objectively justified i.e. for health and safety reasons.
2. Indirect discrimination: This means an employer cannot have a provision, criterion or practice (usually a policy) applicable to everyone, but which causes disadvantage to one group over another, and there is no objective justification for it.
An example would be where a telesales company implements a policy that all sales people must go out door to door one day a week. A disabled employee with mobility issues may be put at a disadvantage by not being able to make as much in sales commission as their non-disabled colleagues.
3. Failure to make reasonable adjustments,
The Equality Act 2010 imposes a duty on employers to make reasonable adjustments, examples of this include -
i) A sickness policy which puts a disabled person at a disadvantage in comparison with persons who are not disabled, such as disciplinary sanctions or performance management for absence which is directly related to a disability.
ii) A failure to provide access to the building for a wheelchair user.
iii) A failure to provide a dyslexic employee with an overlay and coloured paper to allow them to carry out their administrative duties.
This means that a failure by an employer to comply with any of the above requirements is an act of disability discrimination.
4. Harassment: In general terms this is unwanted conduct which has the purpose or effect of violating an employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
This can be bullying which is violent or obvious as well as teasing, nicknames, jokes, or other behaviour which is not done with malicious intent, but which is upsetting.
Note: Behaviours out of work such as the Christmas party or away days can give rise to claims against an employer (vicarious liability) or personally against the perpetrator(s).
5. Discrimination arising from disability: An employer should not treat a disabled person unfavourably because of something arising from their disability. this means that an act by an employer who dismisses a disabled employee following disability related sickness absence could be discriminatory.
6. Victimisation: this is where a person receives less favourable treatment compared to other employees because they have either brought (or given evidence in) an Employment Tribunal, or raised a grievance alleging discrimination protected under the Act.
What remedies are available for a disability discrimination claim?
If an employee or worker succeeds in a claim for disability discrimination, the Employment Tribunal has the power to order the payment of compensation. The award would normally comprise of two elements: injury to feelings and loss of earnings.
Further the Employment Tribunal has the jurisdiction to award damages for personal injury and make recommendations that an employer takes specific action, within a specified period.
What length of service do I need to bring a claim?
An employee does not require a qualifying service to bring a claim for disability discrimination.
Are there any relevant time limits?
The time limit for bringing a claim for disability discrimination in the Employment Tribunal is three months less one day from the date of the most recent act of discrimination.
Extensions of this time limit are only available in exceptional circumstances.
How can we help?
We are experts in dealing with discrimination claims. If you feel you have been discriminated against in the workplace because of your disability, please contact a member of the team on 0113 350 4030 or complete the enquiry form for a free 30 minute telephone consultation.
We will explore all avenues of funding.