Disability discrimination

Discrimination in the workplace on the basis of disability is unlawful in the UK. The Equality Act 2010 (‘EA’), which consolidated all previous legislation in this area (including the Disability Discrimination Act), sets out a number of ways in which an employer may discriminate against someone with a disability:

– Direct discrimination

– Indirect discrimination

– Victimisation

– Harassment

– Not making reasonable adjustments in the workplace

– Discrimination as a result of something arising in consequence of a disability

The law makes it legal to treat a disabled person more favourably to ‘level the playing field,’ so discrimination is unlikely to arise where a disabled person is treated more favourably than someone who is not disabled.

How does discrimination arise?

Discriminatory conduct may be carried out by an employer, but also by other employees, an employer’s agents, or even – in the case of harassment – third parties -and an employer can still be held responsible. The conduct may occur during employment, recruitment, vocational training or, in certain circumstances (such as a request for references) after employment has ended. The discriminatory conduct may be directed at a person because of their own disability or – where there is direct discrimination or harassment – because of a perceived disability (even if there is no actual disability), or an association with someone else who has a disability.

Pre-employment health questionnaires are now made unlawful by the EA, which prevents questions being asked about an applicant’s health and/or disability before a job offer is made, where those questions could result in a discriminatory decision as to whether or not to offer the applicant the job. Where an employer wants to make enquiries about an applicant’s health (which is allowed in certain circumstances), andthe job is subsequently not offered to that applicant, there may be a requirement to then justify why the job was not offered after those questions were asked. Otherwisean employer may face a direct disability discrimination claim by an applicant and investigation by the Equality and Human Rights Commission.

Who is protected?

Those who are protected include ‘workers,’ apprentices, Crown employees, contract workers, barristers, trade organisations and those holding an office, such as membership of some independent public bodies. There is no opt out of the EAdisability discrimination provisions for small businesses.

What is a disability?

The conduct must relate to a person’s disability, which the EA describes as ‘a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day to day activities.’ There is an automatic protection for anyone diagnosed with HIV or cancer, under which circumstances ‘disability’ does not have to be established.

The EA’s definition of disability is relatively wide and will extend to a range of conditions that might not previously have been viewed as a disability, for example depression. It is the effect of the disability on an individual’s ability to function that is most important in determining a disability – this is considered in isolation from the effect any treatment or medication that an individual takes to control or treat a condition.

If the disability is a mental impairment, this does not need to be a clinically recognised illness. ‘Physical and mental impairment’ will cover a wide range of cases, including sensory impairment and autism.

For a condition to be considered a disability it will need to be more than just a passing unwellness, such as a bout of the flu. This is where ‘substantial and long term adverse effect’ comes in, as it requires the condition to have a considerable impact on the way an individual carries out day to day activities – whether this is substantial will be determined by looking at the way in which an individual would function without the impairment. The EA definition requires an impairment that has lasted – or will last – for 12 months, or could well recur at some point in the future (the latter will be regarded as ‘continuing’).

The EA does not define those day to day activities that would need to be impaired in order for there to be a disability and so the scope is broad. Activities that may be included are walking, talking, driving, eating and work-based activities.

Types of discrimination prohibited by the EA

Direct discrimination will occur where someone has been treated less favourably because of their disability, resulting in disadvantage or detriment to that person. In order to demonstrate this, a ‘comparator’ will need to be established. This will be someone who:

– Does not have the disability.

– Is in a position that is ‘not materially different’ to the person who has the disabilityin all respects, including abilities (other than in terms of the disability itself).

– Is actual or hypothetical.

– If the disability in question is one that tends to attract a stigma – such as depression – it is not necessary to transfer this to the comparator.

Discriminatory conduct can be carried out unconsciously, so there is no need for a motive to be presented to prove a claim for discrimination. The person behaving in a discriminatory way does not have to be free of the disability and there can be discrimination where that person has exactly the same condition. Directly discriminatory conduct cannot be justified as other types might be.

Discrimination arising from a disability may exist in circumstances such as requiring a guide dog at work, or needing time off for hospital appointments – anything thatarises and is a result of a person having the disability. It is not necessary to establish a direct link between the unfavourable treatment and the disability, or to compare treatment of disabled and non-disabled people. If the treatment can be objectivelyjustified then it will be exempt from the EA.

It will be particularly difficult to justify discriminatory behaviour if a ‘reasonable adjustment’ could have been made but was not.

Reasonable adjustments in the workplace are those that would be required to remove or minimise a substantial disadvantage that is created by workplace policies for someone with a disability, compared to other non-disabled workers. For example, making an adjustment to allow someone with depression to work part time would be reasonable.

What will be reasonable will depend on the circumstances – for example the sise of the employer, the cost of the adjustment, the relative wealth and resources of the employer and the impact the adjustment would have. A more general comparator is employed here than would be used in a direct discrimination case.

Indirect discrimination arises from a provision, criterion or practice that applies to all workers but particularly disadvantages those with a disability, compared to those who do not have a disability and cannot be objectively justified (i.e. there is no less discriminatory way to achieve the aim, the aim is actually achieved by the provision, criterion or practice, and the discriminatory effect of the provision, criterion or practice is outweighed by the benefit). The provision, criterion or practice will need to apply to a complainant for a claim of indirect discrimination to succeed.

Victimisation arises where there is unfavourable treatment as a result of someone being involved in an EA discrimination complaint. Bringing proceedings, giving evidence or information relating to proceedings, making allegations of disability discrimination (for example making a complaint to an employer), or doing anything by reference to the legislation to the person whose conduct is potentially discriminatory (or to any other person) are all considered ‘protected acts’ where they are done in good faith. Where a protected act has been carried out, unfavourable treatment directed at the person doing the protected act as a result of their actions will be considered victimisation.

Harassment is reasonably unwanted conduct towards someone that violates their dignity, or is intended to violate their dignity, resulting in an environment that is hostile, offensive, intimidating, humiliating or degrading. The conduct must relate to the disability, or it could be the result of a perception that the person has a disability, or an association with someone else who has a disability. Where there is harassment on more than two occasions by the same party (this could be another employee or a third party, such as a customer) and an employer knows of this but fails to take action to prevent it happening again, the employer may be held responsible for the harassment.

Disability discrimination claims

1. The disability discrimination complaint

Where a disability discrimination issue is raised, there is usually a requirement to follow the ACAS Code of Practice on Discipline and Grievance Procedures(www.acas.org.uk). The Code aims to resolve workplace disputes before court proceedings are initiated. There are some serious penalties for both employers and employees who don’t follow the Code where it is required – for example any compensation an employee receives from an Employment Tribunal may be reduced by up to 25%.

There must be a disclosure of the disability in order for there to be protection under the EA, as there is a requirement that the person who is discriminating knows about the disability, or could be reasonably expected to have known about the disability. This is not the case for indirect discrimination, but will apply to all other types.

2. Starting the claim

Disability discrimination claims need to be made with three months less one day of the conduct that is complained about or, where that conduct was ongoing, from the last day of the conduct. An Employment Tribunal can choose to extend this time period if it is felt it is just and equitable, but this is not done in every case.

Employees can request information about the circumstances of a complaint from an employer using a questionnaire – this is usually served either before or within 28 days of Employment Tribunal proceedings being started. Where a questionnaire is not properly completed, this may mean the Tribunal draws an inference of discrimination.

3. The legislation

Where matters that make up a claim occurred both before and after 1st October 2010, this will be covered by the EA and the Disability Discrimination Act.

Those matters that occurred after 1st October 2010 will be covered entirely by the EA.

Those matters that occurred prior to 6th April 2009 may be covered by a different set of rules and time limits.

4. Deciding the claim

As a result of the difficulties associated with proving disability discrimination claims, a claimant now only has to establish ‘clear facts’ that could be used by an Employment Tribunal to decide that there has been discrimination.  The burden of proof then lies with an employer to justify why the potentially discriminatory conduct took place. If the employer is unable to provide a justification that is nothing to do with the person’s disability then an Employment Tribunal will infer discrimination. This will also be the case if an employer has not properly followed the appropriatestatutory Codes of Practice in dealing with a complaint made by an employee.

5. Remedies

There are a number of remedies available for disability discrimination and these are not exclusive of each other. These include recommending that the employer take a certain course of action, making a declaration of the parties’ rights, re-engaging or reinstating an unfairly dismissed employee (with more than a year’s service), and awarding compensation. Compensation is for damage directly caused by the discrimination and the amount that can be awarded is limitless. Loss of earnings (including interest) and loss of any future earnings, hospitable employment, injury to health or feelings may all play a part in the compensatory amount.

Discrimination in service provision

In the same way as the EA protects a disabled person from discrimination on the basis of a disability in the workplace, it also protects against discrimination by people or organisations supplying services, goods or facilities. This may include situations such as accessing and using information and communications services, employment agency facilities, and anywhere that members of the public are permitted to go into. No distinction is made between services that are private, public or voluntary body, paid for or not.

As, for general disability discrimination, the EA prohibits discrimination in service provision in the form of direct and indirect discrimination, discrimination arising from disability, victimisation and harassment. Service providers must take reasonable steps to ensure a disabled person is able to access those services – the cost of doing so cannot be passed on to the disabled person, and the adjustments must be considered in advance.