Disability Discrimination
All you need to know about disability discrimination
What is disability discrimination?
It is unlawful for an employer or service provider to treat someone less favourably because of a disability or if something arises as a result of a disability.
What is a disability?
According to the Equality Act 2010, you have a disability if you have a physical or mental impairment that has a substantial and long-term effect on your abilities to carry out normal day-to-day activities.
- ‘Substantial’ means having a more than minor or trivial effect which is recurring or likely to recur
- ‘Long-term’ means it has lasted or is likely to last at least 12 months.
Failure to make reasonable adjustments
If you have a disability, the Equality Act 2010 imposes an obligation on your employer to make reasonable adjustments to premises or working practices to help you. Failure to do so is disability discrimination.
Employers also have a duty to make reasonable adjustments to help disabled job applicants.
Your employer’s duties fall into three categories:
- Where there is ‘a provision, criteria or practice’ of your employer which puts you at a substantial disadvantage because of your disability (such as a requirement to work certain shift patterns against your medical advice).
- Where a physical feature of your place of work puts you at a substantial disadvantage compared with other people (such as the absence of wheelchair access).
- Provision of an auxiliary aid (such as an adapted keyboard, text to speech software or a sign language interpreter) if failure to be provided with an auxiliary aid puts you at a substantial disadvantage.
In each of these cases, your employer must take reasonable steps to avoid the substantial disadvantage.
It is necessary for your employer to know you have a disability to trigger its duty to make reasonable adjustments.
Direct disability discrimination
Direct disability discrimination is when, because of your disability, your employer treats you less favourably than they treat or would treat a non-disabled person.
For example, if an employee is sacked because of sickness absences totalling three months, but a non-disabled colleague who is off sick for three months is not sacked.
Or, a disabled employee being overlooked for promotion because of assumptions about their ability to cope in the promoted role which are not made about a non-disabled colleague.
If an employer can not provide an innocent explanation for the less favourable treatment, this would suggest the reason is the employee’s disability.
Types of disability discrimination
Not your disability
It is possible to be directly discriminated against because of the disability of someone else (associative discrimination). For example, an employee not being invited to a client event, where everyone is attending with their partner, because her partner is disabled. It is also possible to be directly discriminated against if your employer wrongly believes you have a disability and discriminates against you on the basis of that incorrect perception (perception discrimination). For example, an employer wrongly concludes that an employee has mental health difficulties and makes discriminatory decisions based on that incorrect information.
Indirect disability discrimination
Indirect disability discrimination is when there is a particular policy or way of working that applies to everyone but puts people with a particular disability at a disadvantage. For example, an employer has a sickness policy which automatically warns and then dismisses employees for reaching a set number of sickness absence days. This type of policy is likely to impact on employees with certain kinds of disability compared to others. In this example, the employee would also likely argue that the employer failed to make reasonable adjustments, although unlike the duty to make reasonable adjustments, indirect discrimination can occur even when the employer does not know the employee has a disability. An employer’s possible defence to indirect disability discrimination is that the relevant policy or way of working was a “proportionate means of achieving a legitimate aim”.
Discrimination arising from disability
Discrimination arising from disability occurs when an employer treats you less favourably because of a consequence of your disability. For example, an employee with dyslexia or mobility issues that means he cannot work as quickly as colleagues is dismissed for poor performance. Here the discrimination is not because of the disability condition itself but because of the employee’s slow working speed which arises from the disability. An employer’s possible defence would be to argue that its action was ‘objectively justified’. Discrimination arising from disability does not require an employee to compare his or her treatment with that of a comparator. An employer can only be liable for discrimination arising from disability if it knew, or should have known, that the employee had a disability.
Disability harassment
Disability harassment is unwanted conduct related to a person’s disability that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. For example, derogatory language or commentary directed toward a person or in their presence related to a disability (including about other workers with a disability).
Disability victimisation
Disability based victimisation is when someone is punished for complaining about disability discrimination in some way or other. For example, someone is selected for redundancy because they raised a grievance complaining about failure to make reasonable adjustments for a disability.
How to prove discrimination
The standard of proof in discrimination cases is the normal civil standard, namely whether, on the balance of probabilities (ie ‘more likely than not’ or 51% likely) discrimination occurred.
The burden of proof has two stages:
- First the worker must prove facts from which an employment tribunal could conclude, in the absence of an adequate explanation from the employer, that discrimination had occurred (not could have occurred). This is often referred to as the worker establishing a ‘prima facie’ case.
- If a prima facie case is established, the burden of proof then shifts onto the employer to prove that it/he/she did not commit discriminatory conduct.
Evidence in direct discrimination cases
Employment tribunal cases where there is strong, direct evidence of discrimination are rare. Cases where there is clear evidence of discrimination tend to settle without a hearing because most employers want to avoid the adverse publicity those hearings might attract.
In most discrimination cases an employment tribunal will have to make a decision based on what ‘inferences’ it can draw from the presented facts. As a result, there can often be lots of potentially relevant inference evidence which claimants can be tempted into using to prove their discrimination case. In most circumstances, claimants should resist that temptation as good points in a case can be discredited by a claimant arguing weak points which may be difficult to prove and lead to excessive and inconclusive evidence. This can have the effect of clouding the real issues, detract from any stronger evidence and unnecessarily lengthen the hearing.
Discrimination cases are generally more complex than other types of employment tribunal claims, with the average discrimination hearing being much longer than other hearings. This makes evidence selection an even more important part of preparing a discrimination case.
Injury to feelings compensation is awarded to reflect the degree of hurt felt by a particular claimant as a result of the discrimination, so will vary from claimant to claimant.
The Court of Appeal identified three broad bands for injury to feelings (sometimes referred to as “Vento” bands:
- The top band (normally £27,400 – £45,600) is for the most serious cases, e.g. where there was a prolonged campaign of harassment leading to serious ill-health.
- The middle band (£9,100 to £27,400) is for serious cases which do not merit the top band.
- The lower band (£900 – £9,100) is for less serious cases, e.g. where there was an isolated or one-off incident of discrimination.
If you have been discriminated against at work or during recruitment it is important to seek legal advice at the earliest opportunity.
Do I qualify to bring a disability discrimination claim?
If you meet the stages of the definition of disability (as discussed above) then, if you believe you have been discriminated against because of your disability, there is no length of service or other qualifying requirement.
In most cases, employers will almost automatically deny you have a relevant disability, and you will be expected to produce medical evidence to the employment tribunal in order to prove that your condition meets the disability definition.
Some medical conditions are deemed to meet the definition and will not require you to prove disability. These include, multiple sclerosis, HIV or cancer, or those registered with a local authority or certified by a consultant ophthalmologist as blind or sight impaired.
Key questions on discrimination
Compensation
When a claimant is successful in a discrimination case, the employment tribunal can make recommendations and award compensation. Unlike in unfair dismissal claims, there is no ceiling on the amount of compensation an employment tribunal can award in a discrimination case. Compensation consists of financial loss caused by the discrimination including past and future loss of earnings, loss of opportunity and ‘injury to feelings’.
Do I need comparative evidence in a direct discrimination case?
Because in direct discrimination cases you need to show that you have been treated less favourably because of your disability, there is an inherent requirement to establish the someone (‘the comparator’), who did not or would not suffer unfavourable treatment. In most cases it is impossible to show a real-life comparator where all the relevant circumstances are the same, and so it is necessary to present a hypothetical comparator and consider how they would have been treated. It is still possible, though harder, to prove direct discrimination where there is no comparator. In practice, a claimant’s representative will often present both real and hypothetical comparators in an employment tribunal case.
Is my employer responsible for acts of discrimination by employees?
Employers will generally be liable for acts of discrimination by employees who are acting in the course of their employment. This is known as vicarious liability. Discrimination claims can also be brought directly against individuals, although it is rare for claims to be brought against an individual without a claim also being brought against the employer. If claims are brought against both the employer and individual(s), the employer can decide whether to try to defend itself separately from the individual(s) by arguing that it took all reasonably practicable steps to prevent the discrimination.
Do I need to raise a grievance?
The law does not require you to raise a grievance but, if you are still employed, in most cases you should do so before bringing a claim for disability discrimination, which you are entitled to do whilst you are still employed.