Employment Law Services — Employers
Disability discrimination - the terminology and what it all means
Under the Equality Act 2010 a person has a disability if he or she has a physical or mental impairment, and that impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Long term means likely to last 12 months plus
Substantial means non trivial
Day to day activities are not role specific, they are the things we all do daily e.g. bathing.
It is no longer necessary for the person to prove a clinically, well-recognised medical condition, but stress alone may not be enough.
This occurs where an employer (A) discriminates against an employee (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Disability is a protected characteristics under UK law.
Discrimination arising from disability
An employer (A) directly discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B’s disability, AND if A cannot show that the treatment is a proportionate means of achieving a legitimate aim UNLESS the employer did not know and could not reasonably have been expected to know of the employee’s disability.
Example: unfavourable treatment of an employee due to a disability-related absence.
An employer (A) indirectly discriminates against an employee (B) if A applies to B a Provision, Criterion or Practice “PCP” which is discriminatory in relation to a relevant protected characteristic of B’s (e.g. disability). A PCP is discriminatory if it can put persons with whom B shares the characteristic at a disadvantage when compared with persons with whom B does not share it.
The employer need not have known of the employee’s disability, however, if the employer can show that the discriminatory PCP is a “proportionate means of achieving a legitimate aim”, then they will have a justification defence.
These claims are statistics based – comparing the percentage of the population (with the disability) can comply with the PCP against what percentage of the population (without the disability) can comply with it.
An employer (A) will be guilty of harassment of an employee (B) if A engages in unwanted conduct (e.g. bullying) related to a relevant protected characteristic (e.g. disability), and the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
Example: bullying an employee with learning difficulties.
An employer (A) will be guilty of victimisation of an employee (B) if A subjects B to a detriment because B does a protected act (which includes grieving or bringing proceedings under this Act, or giving evidence or information in connection with such proceedings).
Example: firing an employee for complaining about being discriminated against or harassed.
Failure to make reasonable adjustments
Treating those with a disability more favourably than others is not prohibited, indeed employers are obliged to make adjustments for the benefit of disabled workers (adjusting the way things are done, physical feature of the workplace e.g. replacing steps with a ramp, or providing auxiliary aids or services) without passing any of the cost on to the disabled employee.
Discrimination based on association/perception
An employer will be guilty of associative discrimination if an employee is treated less favourably because of their association with a disabled person or because they are perceived to have a disability.
Example: Telling a parent of a disabled child requesting time off for a hospital appointment “I suppose it is for that f***ing child again”
Instructing causing or inducing discrimination or aiding discrimination is also prohibited
Pre-employment health questionnaires: Are prohibited unless to establish whether adjustments are required at interview (e.g. a ground floor interview room).
Who is covered:- job applicants, current and past workers, employees, agency workers and partners.
Vicarious liability Employers are liable for the discriminatory acts or their employees in the course of their employment unless they can show the defence that they took all reasonable steps to prevent the discrimination from occurring.
Small employers: There are no small employer exemptions
Limitation: tribunal claims must be filed within 3 months from the act or omission complained of.
Damages: Are unlimited but typically include elements for loss of earnings, injury to feelings and/or personal injury.