Disability Discrimination

11 million people in the UK have a disability for employment law purposes, around 1 in 5 people. They are protected from disability discrimination at work and in their daily lives by being given the right to bring employment tribunal claims.

Disability discrimination is treating disabled employees badly or differently to those without a disability but it can also be treating them the same.

If you are forced out of your job because of your employer’s reaction to your medical condition, this is also likely to be considered an unfair dismissal.

What is a disability?

Under the Equality Act 2010 (which replaced the Disability Discrimination Act) a disability is any condition that has a significant effect on your day to day activities (at work or at home) and is likely to last over 12 months.

There is a long government guidance that can help to work out if you have a disability for employment law purposes. It deals with special cases like recurring conditions, whether treatment and prosthetics make you able-bodied in the eyes of the law and so on. It also says what is and isn’t counted as a disability.

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What can you complain about?

It is unlawful for employers to treat a disabled person less favourably than their non-disabled peers. This is called direct discrimination. For example we have had clients who have not been allowed back to work full-time because the employer assumed they were not ready for it. In one case, a client who had had a stroke won a settlement of £30,000, which is high by the standards of employment tribunal claims generally.

If you are dismissed because of something which amounts to or is tainted by disability discrimination you are on good grounds to bring an employment tribunal claim, worth thousands. A client of ours with concentration problems following a brain tumour was disciplined after she made a mistake because of overwork, which she had protested against. She went off work sick, for the first time working there in 20 years and felt unable to return. We secured employment tribunal compensation of over £10,000 for her.

Because disability discrimination claims tend to attract higher awards in the employment tribunal than unfair dismissal claim, such cases are often suitable for employment solicitors to offer no-win, no-fee arrangements.

Harassment

It is unlawful to harass colleagues because of a disability (eg calling them names). Harassment is defined as unwanted conduct that has the purpose or effect of violating your dignity and that is hostile in some way. Calling someone “cripple” or leaving them out of social events would do it. The minimum amount of compensation that an Employment Tribunal is supposed to award is £650. That is the potential cost of a joke that is in poor taste on the ground of disability.

Direct discrimination

You can complain if you have been treated worse than a non-disabled colleague who is in otherwise the same situation as you. This is called direct discrimination. An example would be dismissing you because you have a medical condition which the employer doesn’t like.

The legal term for your colleague in the same situation is a comparator. It is often unclear if they are in the same situation as you. If you can’t point to a colleague you may be able to show you were treated less favourably than you would have been treated if you had been non-disabled. This is called a hypothetical comparator. Some claims fail because there is no appropriate comparator and employment lawyers have a bank of caselaw to rely on when advising on this aspect.

It is unlawful to treat someone less favourably because they associate with someone who is disabled, eg they look after a spouse with a condition.

Indirect discrimination

Indirect discrimination is where there is a one size fits all rule which applies equally to everyone, but which actually puts disabled people at an unfair disadvantage compared with people who aren’t disabled. An example is having meetings on the first floor – that could indirectly discriminate against those with mobility problems. This is discrimination unless the employer has a good reason for the rule and seeking the advice of various experts can help to build a case.

‘Discrimination arising from disability’ happens when someone is treated unfavourably because of something connected to their disability and there is no good reason for it. For example, disciplining someone for taking too much sick leave which is based on their medical condition. Again, this is discrimination unless the employer has a good reason for taking the action.

Victimisation 

Victimisation is treating an employee badly because they filed a grievance or employment tribunal claim against the employer for discrimination. Sometimes an employee is ignored, punished or even moved out of a team away from the person complained about “for their own protection”, perhaps to a position with lower responsibility because they filed the complaint. This is considered victimisation and attracts a higher award than ordinary disability discrimination. This is why we almost always advise employees to lay a paper trail in discrimination cases – any negative treatment afterwards can be painted as victimisation.

The families and friends of disabled people also have protection under the law, for example if they care for a disabled family member and are treated badly by an employer because of it.

Reasonable adjustments

It is unlawful not to make a reasonable adjustment to help a disabled person do their job. Employers are supposed to discriminate in favour of the disabled in order to create a level playing field for them.

Many of our clients have brought claims because their employers failed to put in place reasonable adjustments for them. For example, our fast-food manager client who needed to take things more slowly after his stroke but wasn’t allowed to nap in his car during his break. Or the teacher with knee problems who wasn’t allowed to move into a classroom downstairs.

Examples of adjustments that an employer may be obliged to make

• Allowing a phased return to work;
• Changing working hours to allow a later start;
• Help with transport or a parking space;
• Permitting home working;
• Allowing time off for treatment;
• Rearranging office space;
• Providing modified equipment eg a seat or screen;
• Changing work patterns;
• Providing a mentor system;
• Reallocating work within the team; and
• Redeployment in extreme cases.

If these changes to your working practices or environment are reasonable then your employer has a duty to make them. You would be within your rights to resign and claim unfair dismissal compensation if those changes are not made promptly. And you should not delay too long in resigning – see our article on constructive dismissal.

Access to Work

If you have a disability and need changes at work so you can do your job, you may be able to get help from Access to Work.

Access to Work is a government scheme that works with employers to advise on adjustments that are needed to the workplace or jobs or working hours so that disabled employees can do their job. They can also fund or part-fund the adjustments. They are a valuable and free resource for many of our clients and will provide an independent report on what the employer is failing to provide.

Proving it

Proving discrimination is not straightforward. You have to prove that it is more likely than not that your employer discriminated against you because of your disability.

It is rare to find evidence of discrimination. Few employers will document or admit it. But if you can show that there’s something fishy about the treatment that may be related to disability, it is for the employer to disprove – your case gets the benefit of the doubt and looks much stronger. In legal terms you have to show “facts from which a Tribunal could conclude that there had been discrimination”, at which point the burden shifts to the employer to disprove it. An employment solicitor will be able to look into the employer’s circumstances to advise on this aspect.

What should I do?

Often, the first thing to do is to bring a grievance. This is because it lays a paper trail for the treatment you have been suffering and also because if you are treated badly after that you can complain about victimisation, which is discrimination by retaliation and taken particularly seriously by employment tribunals.

That may solve the problem by getting a fresh pair of eyes on the issue. But often, it won’t and in that case your options include resigning and/or bringing an employment tribunal claim.

Can an employer ask about my health? Should I tell the employer about my health?

In short, yes to both questions.

You should tell your employer about any medical condition. That helps you to obtain adjustments to your job and is a necessary ingredient to a future discrimination complaint and therefore strengthens your hand in any negotiations.

During the recruitment process, an employer must make any reasonable adjustments to help a candidate if they know about a disability. Some employers guarantee an interview to anyone with a disability. It is fine – and encouraged – to ask if a candidate is disabled, for this reason.

Beyond that, an employer can ask health-related questions without necessarily getting into hot water, but asking unnecessary questions raises the question “why ask it, unless it was to commit discrimination or help the employee”.

Necessary questions include:

• Those that help to assess whether the candidate can perform the essential functions of the job
• To take positive actions to help disabled employees.
• To monitor that disabled people are treated fairly

So it is fine to discuss with an employee with mobility problems the terrain that their job requires them to cover. Asking whether someone who has had a brain tumour (but who has not indicated any ongoing symptoms)  if they are “up to the job” is  dangerous for the employer as they would not ask that of an able-bodied candidate and there was no reason to ask it.

Asking someone how much time off for treatment they have is risky even as part of a discussion about what reasonable adjustments would need to be made to the job. This is because unreasonable adjustments would not have to be made in any event if they got the job, so the inference is that the employer is only asking because it plans to not hire (rather than hire and refuse an unreasonable adjustment) if the answer is too high.

Once a job is offered (whether conditionally or unconditionally) an employer is in a stronger position to ask appropriate health-related questions, since it is by that stage clear at least that they didn’t intend to discriminate in the offer of a job.

What are my time limits?

You must bring a claim within three months (less one day) of what you are complaining about, though this can be extended if there is a good reason. If you think this may apply ask for advice.

Where the discrimination takes place over a period of time, this could be a “continuing act” that lets you complain about all of the conduct as long as the last event was in the last three month period.

What is a claim worth?

Your compensation would be based on

• An injury to feelings award (which depends on the circumstances, but is typically £6,000 for a long course of low to mid-range bad treatment, or £10,000 if you are dismissed or are forced to resign).  It is worked out according to the well-known case referred to by the name of Vento.
• You would also be entitled to compensation for loss of earnings if you are forced from your job, just like with an unfair dismissal claim. Typically the employment tribunal works out how long you have been or expect to be out of work and award you your loss of post-tax income for that period, subject to deductions for your own fault and any chance that you would have lost your job for other reasons.