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Disability Discimination

Discrimination at work – overview

Discrimination may occur before employment (job applicants), during employment or in some situations when employment has ended. It may be the result of actions by the employer, or their agents, or other colleagues.

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Unfair dismissal

An employee who has not been dismissed properly may have the right to claim compensation for an unfair or discriminatory dismissal, may be owed a redundancy payment, or may have the right to be paid for an unfulfilled contractual notice period.

Settlement Agreements

Settlement agreements are normally used in a situation where an employee’s contractual, statutory or common law rights are going to be waived or ‘compromised.’

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Top 3 questions

  • What is unfair dismissal?

    If your employer terminates your employment for an unfair reason or fails to follow the correct procedure for the dismissal, that dismissal is potentially unfair. This only applies to employees. However, to qualify for the protection of the law in this regard, you must have been an employee for at least one year (unless your employment began after 06 April 2012, in which case the requirement is for two years of employment). So, if you have been an employee for at least one year and you have been dismissed, it could be that you have a claim for unfair dismissal. The questions which you need to ask yourself are: (a) Was my role redundant? (b) If not, was I suitably qualified to undertake the job or performing sufficiently? (c) Was there any conduct on my part which could justify my dismissal? (d) Was there some other Substantial Reason Some conduct such as theft or fighting in the workplace could lead to the immediate termination of your employment, as being deemed to be Gross Misconduct by your employer. If your employer is considering dismissing you, there are a number of formal steps which must be undertaken in order for the process to be fair. Usually an employer must undertake a fair procedure, which should include being warned that the process may lead to your dismissal, holding a meeting to discuss/investigate matters, then permitting you to appeal any decision made. There are exceptions to the requirement to be an employee for 12 months, which include making protected disclosures (known as whistle-blowing) or discrimination claims.
  • What is discrimination?

    Discrimination is a wide ranging area of law, recently updated under the Equality Act 2010 to include new heads of claim. However, the fundamental aspect is that you must have what is called a protected characteristic to have the protection of the discrimination legislation. Protected characteristics include age, sex, disability, religion or race. To be discriminated against means to be treated differently or suffer a particular disadvantage because of a protected characteristic. It is enough if the protected characteristic had a significant influence or was an important factor in any action. To put matters into context, it is directly discriminatory to say that woman can not be a lorry driver. As another example, a policy that required employees to work full-time specific hours could indirectly discriminate against female employees who have childcare requirements and could therefore have great difficulty in working specific hours. It is helpful in a discrimination claim if there is a person who you can be directly compared to who does not share your protected characteristic and who was not treated the same way you were. If the treatment of you can be shown by your employer to be justifiable, then it is lawful. Justifiable means that it is a proportionate means of achieving a legitimate aim, so for example: if a film was being made about Zulu Warriors, it would not be unreasonable and thus would be a proportionate means of achieving a legitimate aim, to preclude white, British actors from consideration. There is also a requirement which specifically addresses discrimination on grounds of pregnancy making it unlawful to treat a woman unfavourably because of her pregnancy or any illness suffered by her because of it. For disability, there is a unique requirement to make reasonable adjustments to ensure that the disabled worker is not put at a substantial disadvantage compared to a non-disabled worker. In the event that an employer fails to make reasonable adjustments in a timely manner, a disabled worker could, if the failure was sufficiently serious, resign and claim constructive dismissal as a breach of the implied term of trust and confidence. It is notable, however, that unlike unfair dismissal, discrimination legislation has no minimum period of employment, indeed, it goes further and even covers the potential recruitment of a worker. The Equality Act also permits positive discrimination by an employer, namely an employer can take steps to help a disadvantaged person or group of people which would be discriminatory against everyone who does not share that disadvantage. For example, where there are two identical workers in terms of qualifications and experience for a position, the company can potentially legitimately choose to recruit the disadvantaged worker.
  • How long do I have to bring a claim?

    In most cases, the claim must be lodged with the Employment Tribunal within 3 months (less one day) from the effective date of termination. In claims of discrimination, the period runs from the discriminatory act. The Tribunal can extend time where it is just and equitable to do so or, in discrimination claims, where the acts are continuing acts. It is rare for a Tribunal to extend time for unfair dismissal claims however.

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