Disability discrimination

You do not have to put up with disability discrimination, bullying, or harassment because of a disability. The Equality Act 2010 makes it unlawful for your employer to discriminate against you at the recruitment process or during everyday employment.

If you feel that you have been victimised or harassed or treated unfairly for a reason related to your disability, then you may be able to make a claim against your employer.

The treatment could be a one-off incident, a series, or as a result of a rule or policy which is unfair when applied to you. It doesn’t have to be intentional to be unlawful.

What is a disability?

You don’t need to be registered disabled to qualify for protection. In the Equality Act a disability means a physical or mental condition which has a substantial and long-term impact on your ability to do normal day to day activities.

If you have cancer, multiple sclerosis, HIV infection, or a visual impairment, you are automatically protected by the Act, as soon as a diagnosis is given. There is no need to show that the condition affects your ability to carry out normal day-to-day activities.

You are also covered by the Act if you had a disability in the past.

• For example, if you had a mental health condition in the past which lasted for over 12 months, but you have now recovered, you are still protected from discrimination because of that disability.

Some conditions are specifically excluded, such as addiction to alcohol, nicotine and any other substance (unless the addiction is the result of medically-prescribed drugs or treatment)

I have a disability. Am I protected?

Protection applies to all employees, job applicants, trainees, contract workers, office holders (including company directors and managers), those who are on secondment and the self-employed. The Act covers all areas of employment including recruitment, selection and promotion, the provision of training, the provision of benefits, retirement and occupational pensions.

What does disability discrimination look like?

This is when you are treated less well or put at a disadvantage for a reason that relates to  your disability. The treatment could be a one-off incident, the application of a rule or policy, or the existence of physical or communication barriers which make working difficult.

There are six main types of disability discrimination.

1. Direct discrimination

This type of disability discrimination happens when someone treats you worse than a colleague in a similar situation because of your disability.

• For example, during an interview, a job applicant tells the potential employer that he has multiple sclerosis. The employer decides not to appoint him even though he’s the best candidate they have interviewed, because they assume he will need a lot of time off sick.

2. Indirect discrimination

Indirect  disability discrimination happens when an employer has a particular policy or way of working that has a worse impact on disabled people compared to people who are not disabled.

• For example, a job advert states that all applicants must have a driving licence. This puts some disabled people at a disadvantage because they may not have a licence because, for example, they have epilepsy.

Indirect disability discrimination is unlawful unless the employer is able to show that there is a good reason for the policy and it is proportionate. This is known as objective justification. In the above example, if the advert is for a bus driver job, the requirement will be justified. If it is for a teacher to work across two schools, it will be more difficult to justify.

3. Failing to make reasonable adjustments

Your employer has a responsibility to make sure you have the help you to overcome disadvantages resulting from your disability.

It can be discrimination if the employer does not. This is known as a ‘failure to make reasonable adjustments’.

• For example, if you have a mobility impairment and need a parking space close to the office but your employer only gives parking spaces to senior managers and refuses to give you a designated space.
• For example, if you are visually impaired, your employer might consider providing specialist technology or equipment to assist you.

What is reasonable depends on a number of factors, including the resources available to your employer.

4. Arising from a disability

The law also protects you from being treated badly because of something connected to your disability, such as having an assistance dog or needing time off for medical appointments. This does not apply unless the person who discriminated against you knew you had a disability or ought to have known.

• For example, you are denied your bonus because of time you have taken off to receive cancer treatment.
• For example, you have a tendency to make spelling mistakes as a result of your dyslexia and are then subjected to a performance improvement programme or disciplined.

Discrimination arising from disability is unlawful unless your employer is able to show that there is a good reason for the treatment and it is proportionate. This is known as objective justification.

For example, your deteriorating eyesight means you cannot do as much work as your non-disabled colleagues. If your employer seeks to dismiss you, after ruling out the possibility of redeployment, they would need to show that this was for a good reason and was proportionate.

5. Harassment

Harassment happens when you are made to feel intimidated, offended, degraded or humiliated or there is an offensive environment where you work.

• For example, you are regularly sworn at and called names by colleagues at work because of your disability.

Harassment can come from the general culture of the workplace. It is possible to claim harassment even when the discrimination is not directed at you personally. So, an able-bodied person can make a claim if they witnessed and were offended by the discrimination of a disabled colleague.

The law extends harassment to include third parties. This means that your employer could be liable for harassment by their clients, customers or suppliers.

Harassment can never be justified. However, if an organisation or employer can show they did everything they could to prevent people who work for them from behaving like that, then you will not be able to make a claim for harassment against them, although you could make a claim against the harasser.

6. Victimisation

This is when you are treated badly because you have made a complaint of discrimination under the Act or are supporting someone who has complained.

• For example, you have made a complaint of disability discrimination. Your employer threatens to sack you unless you withdraw the complaint.
• For example, your employer threatens to sack a member of staff because she thinks they intend to support a colleague’s disability discrimination claim.

Are they allowed to ask me about my disability at a job interview?

It is unlawful for a prospective employer to ask you about your health or sickness record before offering you work. There are some limited exceptions to this rule.

An employer may ask health-related questions where this is necessary to:

• Determine if, and what, reasonable adjustments need to be made for you during the selection process. For example, it may be necessary to allow a deaf applicant to bring an interpreter into the interview room
• Decide if an applicant can carry out an essential part of the job. For example, manual labour
• Monitor diversity of people making applications for jobs
• Take positive action to assist disabled people
• Ensure that an applicant for a job that requires the employee to have a disability, does in fact, have a disability

I have been discriminated against, what now?

You will want to know all your options before deciding what to do. This is what we are best at.

Sometimes it’s a good idea to raise a grievance with your employer – but it depends on your circumstances. You shouldn’t have to put up with being discriminated against and many people just want to leave work and never return.  We are experienced negotiators and will try to secure you the best exit terms if this is what you want to do.

If, after going through the grievance procedure, you are not satisfied with the outcome, you could bring a claim against your employer (and possibly the person doing the discriminating too) in the Employment Tribunal. You have three months (less one day) from the date of the last act of discrimination to preserve your employment rights. It is now mandatory to go through the Acas Early Conciliation scheme before you can submit a claim to the Tribunal. We can help you with this too.

In extreme cases of disability discrimination, you may also be entitled to resign and claim constructive dismissal without having to raise a grievance first. If you don’t want to raise a grievance and would rather just resign, we will support you.

We will always give you clear, honest advice in terms that are easy to understand. Once you have decided what outcome you want, we will go all out to get it for you.

What compensation am I entitled to?

Unlike some claims, there is no maximum amount of compensation a Tribunal can award you.

In addition to  damages for any losses you have suffered – such as wages or pension, compensation normally includes an award for injury to feelings. Tribunals are guided in what to award:

• Lower band (less serious cases): £900 to £9,000
• Middle band: £9,000 to £27,000
• Upper band (the most serious cases): £27,000 to £45,000

In exceptional cases, the award will be over £45,000

You only have a limited amount of time to take action to preserve your employment rights – usually just three months (less one day) from the date you were last discriminated against.

FREE first advice

Have you ever wanted to just ask an expert employment law solicitor if they can help you, without worrying about what it may cost to contact them?