Disability Discrimination
This Fact Sheet provides a brief overview of the rights afforded to disabled workers under the provisions of the Equality Act 2010. The rights apply in England, Scotland and Wales only
The meaning of disability
In order to be protected under the Act a person must first show that they are “disabled”. To qualify as disabled, a person must show that they have:
- A physical or mental impairment which has
- A substantial and long term adverse effect
- On their ability to carry out normal day to day activities.
In order for an impairment to be long term it must have lasted for at least 12 months, be likely to last at least 12 months or be likely to last for the rest of the person’s life.
People do not generally lose their right to protection under the Act because they have been able to control or correct their disability through the use of aids or medical treatment.
The Act also covers people who have had a disability in the past as well as people with progressive conditions and anyone deemed to have a disability including those with cancer or certain types of disfigurement.
Circumstances in which the Act applies
The Act covers all forms of Discrimination in the workplace – recruitment, terms and conditions, promotions, transfers, dismissals, training and any other detrimental treatment.
The Act applies to apprentices, those working under a contract of employment, and the self employed working under a contract personally to do work. Ex-employees may also be able to claim against a former employer.
An employer is generally liable for acts of discrimination, harassment and victimisation in the workplace. However individual employees may also be liable.
The meaning of discrimination
There are six ways in which an employer can discriminate against a disabled employee.
Direct discrimination
Arises where the employer, because of a person’s disability, treats that person less favourably than he treats or would treat a person who does not have that particular disability. This type of discrimination cannot be justified under any circumstances.
Indirect discrimination
Arises where the employer applies a “provision, criterion or practice” which puts those people who share a disability at a particular disadvantage. Indirect discrimination can be justified if the employer can show that the discrimination is a “proportionate means of achieving a legitimate aim”.
Reasonable adjustments
The Act provides that an employer is under a duty to make reasonable adjustments where, for example, any provision, criterion or practice puts the employee at a substantial disadvantage in comparison with persons who are not disabled. Reasonable adjustments can include altering a disabled person’s working hours or the duties they undertake, assigning him or her to a different place of work or modifying work equipment.
Harrassment
Arises where, for a reason connected with the person’s disability, the employer (usually by another employee) engages in unwanted conduct which has the purpose or effect of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the disabled person.
Unfavourable treatment “arising from” disability
The Equality Act 2010 has created a new type of discrimination specific to disability cases. A person discriminates against a disabled person if they treat them unfavourably because of something arising in consequence of their disability and cannot show that the treatment is a proportionate means of achieving a legitimate aim.
This might apply where an employer treats a disabled person unfavourably in connection with sickness absences connected to their disability.
Victimisation
The law protects people who have:
- Brought legal proceedings against a discriminator;
- Given evidence or information in connection with such proceedings;
- Otherwise done anything under or by reference to the Act in relation to the discriminator or any other person;
- Alleged that the discriminator or any other person has contravened the Act.
Bringing a Claim
Employees or job applicants who feel that their employer (or potential employer) has discriminated against them or has victimised them can bring a claim to an Employment Tribunal. Claims must be brought within three months less one day of the act complained of.
Where discrimination has occurred over a long period of time then the claim must be brought within three months less one day of the last act in a series of acts.
Where a Tribunal finds that a claim is well founded, it can make:
An Order requiring the employer to pay compensation to the Claimant e.g. for financial losses and injury to feelings. There is no limit on the amount of compensation which can include loss of earnings (past and future), loss of pension rights, interest and other losses. Compensation for injury to feelings will reflect the seriousness of the discrimination and the effect on the employee. A recommendation that the Respondent takes specified actions within a specified time which the Tribunal feels are practicable for the purpose of removing or reducing the adverse effects of the discrimination on the Claimant.
For more information on the Equality Act 2010 and other Employment Rights, please call our Employment Rights team on 033 3344 9603 or email or David Sorensen.
