Definition of disability
The definition of disability is defined in terms of physical or mental impairment. The impairment must have a substantial long-term adverse effect on the ability to carry out normal day to day activities.
What constitutes a physical mental impairment, the effect on normal day to day activities, and whether this is substantial or long term, can be quite complex.
The definition of disability under the Equality Act 2010 was very different to how disability in other areas of life are assessed. For instance the Department of Work and Pensions will assess disability in an entirely different way.
A disability can be of a recurring nature.
It is also unlawful for an employer to discriminate against someone because of a past condition even if they have recovered from that condition.
In Employment Tribunal proceedings an employer will not automatically concede that the employee is disabled. Often a separate hearing is convened to determine whether an employee is disabled prior to any hearing on the case itself.
There are certain disabilities that are termed deemed disabilities under the Equality Act 2010 such as blindness, cancer, HIV and multiple sclerosis.
Direct disability discrimination
This occurs where an employee is treated less favourably than a comparator.
Discrimination arising from disability
This occurs where employees are treated unfavourably because of something arising in consequence of that disability. For example, if a cancer patient is dismissed from work because of sickness absence that arises from undergoing chemotherapy then this could be discriminatory.
It is possible for employers in some cases to justify discrimination arising from disability.
Indirect disability discrimination
This ccours when an employer imposes a policy that disproportionately puts the disabled person at a disadvantage. For example if an employer has the resources to install a lift but refuses to do so, this could be deemed to be discriminatory to employees unable to use stairs.
Failure to make reasonable adjustments
This imposes a duty for employers to make adjustments that are reasonable to an employee’s working life.
There are three types of reasonable adjustment:
- Provision of property and premises e.g. installing a list;
- Provision of auxiliary aids;
- Adjustment of practices and policies.
Whether it is reasonable to provide adjustments depends to a large extent on an employer’s size and resources, and what funds they have available to fund the adjustments. Often however, adjustments can be made with a little bit of thought on behalf of the employer and they need not necessarily be costly.
In some cases, for example, an employer can relax their attendance requirements if you are having to take time off to attend hospital appointments.
It is often necessary to refer an employee to an Occupational Health specialist and you should not be frightened of asking to be seen by one. The following organisations can also provide health and assistance:
If your employer is discriminating against you, contrary to the above four grounds, you should consider making a claim.
A claim for disability discrimination has to be made within the statutory time limit. It is necessary to contact ACAS in the first instance and complete an Early Conciliation form.
Knowledge of Disability
An employer cannot discriminate against an employee if they do not have knowledge of a person’s disability. It is therefore advisable to make your employer aware of your disability at the outset of your employment or when you first become aware of the condition.
Disability-related Harassment
This occurs where ‘A’ engages in unwanted conduct related to disability and the conduct has the purpose or effect of violating ‘B’s dignity, or creating an intimidating, hostile, degrading, or offensive environment for B.
Case example:
In Chief Constable West Yorkshire Police v, the Claimant had a period of absence from work due to insomnia and stress. In his return to work interview, his line manager referred to the claimant as being a bit of a “doolally” and “one flew over the cuckoo’s nest”.
Even though the claimant laughed about the comments in the interview, two weeks later he raised a grievance. The Tribunal held that although the comments were not necessarily intended to offend him personally they nevertheless had the effect of violating his dignity and he was awarded compensation.
Disability-related Victimisation
This occurs when someone is treated unfavourably because they have made a complaint (a protected act) in relation to the Equality Act 2010 or because their employer believes they are about to do a protected act.
Disability Discrimination Claims
There is no minimum length of service required to bring a disability discrimination claim.
A claim for disability discrimination has to be made within the statutory time limit. It is necessary to contact ACAS in the first instance and complete an Early Conciliation form.
Disability Discrimination Compensation
Compensation is assessed in accordance with the Vento guidelines and the following bands:
- Band 1 - £900 - £8,800;
- Band 2 - £8,800 - £26,300;
- Band 3 - £26,300 - £44,000
It is however rare for the higher band (Band 3) to be awarded and is reserved for the most serious types of discrimination and whether there has been a long campaign towards the employee.
Contact Our Disability Discrimination Lawyers
We provide a no win no fee service for clients who find themselves involved in employment disputes.
Speak to a member of our team today by calling 0207 458 4633 or complete our online enquiry form.
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