Disability Discrimination Solicitors

Paddle & Cocks’ employment law team can provide clear practical advice on all areas of unlawful discrimination. 

Our team includes Marc Jones who is a ranked and recommended solicitor in the leading legal publications with decades of experience representing employees of all levels.

For disability discrimination advice and representation, please contact Marc Jones by telephone on 01872 672072 (Cornwall) 020 3745 6535 (London) or by email at marc.jones@paddleandcocks.co.uk.

What is disability discrimination?

The Equality Act 2010 (EqA) prohibits discrimination against individuals in the areas of employment, education, and the provision of goods, facilities and services for a protected characteristic (i.e. age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation).

You have rights whatever your length of service and the number of hours you work.

Disability discrimination does not simply affect those with a physical disability but can affect individuals where an impairment may not be obvious but still be protected under the EqA.

Disability is defined in the EqA as a person who has 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.

The EqA protects not only those who currently have a disability but also those who have had a disability in the past.

Some conditions are expressly deemed to be a disability under the EqA: 

• blindness
• severe sight impairment
• cancer
• HIV infection
• Multiple Sclerosis. 

Certain conditions are expressly stated not to be impairments under the EqA: 

• addiction to alcohol, nicotine or any other substance
• hay fever
• the tendency to steal.

Other conditions are referred to as hidden disabilities or invisible disabilities and include: 

• Asperger’s Syndrome
• Autism Spectrum Disorder
• Attention Deficit Hyperactivity Disorder
• Dyslexia
• Dyspraxia
• Obsessive Compulsive Disorder
• Post-Traumatic Stress Disorder
• Diabetes
• Epilepsy
• Depression and other mental health conditions.
  

What is direct disability discrimination?

Direct disability discrimination occurs where because of your disability, you are treated less favourably than a person who does not have a disability.

Less favourable treatment means a detriment (see above).

In claiming direct disability discrimination, you will need to prove that you have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to yours.

The appropriate test requires an employment tribunal to consider the reason why you were treated less favourably: what was your employer’s conscious or subconscious reason for the treatment?

For the purposes of establishing direct disability discrimination, it does not matter whether the discriminator has the protected characteristic in question it can be perceived disability. Nor does it matter whether you have a disability it can be by association.

Direct discrimination will also occur if your employer instructs, causes or induces another to commit disability discrimination. It will also commit an infringement if it causes detriment to you because e.g. you refuse to obey an instruction to act in a way that would disadvantage persons with a disability.

Direct discrimination cannot be objectively justified, but an employer might be able to rely on an exception, perhaps by pointing to an occupational requirement or positive action, to avoid liability.

What are the exceptions?

Discrimination in employment is generally prohibited.

However, there are exceptions which render what would be unlawful acts in fact lawful.

The main exceptions are:

Occupational requirements – an employer will be able to rely on this exception where:

• having a particular disability is an occupational requirement
• the application of the requirement is a proportionate means of achieving a legitimate aim
• the individual does not meet the requirement (or the employer has reasonable grounds for not being satisfied that the individual meets it).

Under the EqA, an employer is allowed to treat disabled people more favourably than non-disabled people, so the occupational requirement exception is unlikely to have much impact in disability discrimination claims. However, an employer who treats a person with one disability more favourably than a person with a different disability might need to rely on it.

Positive action – where an individual with a disability, has a particular need or is disproportionately under-represented, an employer can take certain actions to address these problems without opening themselves up to discrimination claims brought by persons without a disability.

What is indirect disability discrimination?

Indirect disability discrimination occurs where:

• your employer applies to you a provision criterion or practice (PCP)
• you have a disability
• your employer applies (or would apply) that PCP to persons who do not have your disability
• the PCP puts or would put you at a particular disadvantage when compared to other persons who do not have your disability
• your employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate.

There will be no indirect discrimination if your employer’s actions are justified. To establish justification, your employer will need to show that there is a legitimate aim (i.e. a real business need) and that the PCP is proportionate to that aim. Justification must be on objective grounds with an objective balance between the discriminatory effect and the reasonable needs of your employer, there is no margin of appreciation.

In other words, indirect disability discrimination occurs where your employment is subject to an unjustified condition, which because of your disability, you find more difficult to meet.

What is the duty to make reasonable adjustments?

Employers (and service providers) are under a duty to make reasonable adjustments to individuals with a disability where a PCP applied by an employer or physical feature, places the disabled person at a substantial disadvantage.

The duty is also engaged where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with those who are not disabled.

The duty to make reasonable adjustments applies to employers in selection and interview procedures and the premises used for such procedures, as well as to job offers, contractual arrangements and working conditions.

Service providers are under a duty to make reasonable adjustments to customers, clients and [prospective] workers or employees with a disability where any physical feature of the premises occupied by an employer or an organisation, places the disabled person at a substantial disadvantage.

The EqA envisages reasonable adjustments being made in the following ways:

• changes to policies, practices and procedures
• providing auxiliary aids and services
• overcoming barriers caused by physical features.

When considering if services are unreasonably difficult for disabled people to use, service providers should take account of whether the: time; inconvenience; effort; discomfort or loss of dignity in using the service would be considered unreasonable by other people if they had to endure similar difficulties.

Failure to make reasonable adjustments cannot be objectively justified.

Can employers ask pre-employment health questions?

The EqA prohibits employers from asking questions about health, other than for prescribed reasons to applicants. If you are an applicant, the EqA states that your health must not be questioned:

• either before offering work
• where the employer is not in a position to offer you work
• before including you in a pool of applicants from whom the employer intends (when in a position to do so) to select a person to whom to offer work.

It also applies whether the employer (or someone acting on behalf of the employer) asks a question about you from a third party (e.g. for your former employer by way of a reference request).

What is disability harassment?

Harassing you for a reason related to your age is unlawful, if the conduct is unwanted and has the purpose or effect of:

• violating your dignity or
• creating an intimidating, hostile, degrading, humiliating or offensive environment.

Such conduct will only amount to harassment if in all the circumstances, your perception of the conduct, is reasonably considered to have that purpose or effect.

Your employer will be able to avoid liability for harassment if it can show it took reasonably practical steps to prevent it from happening.

What is victimisation?

Victimisation occurs where you are treated less favourably than another person whose circumstances are the same because you:

• brought claim under the EqA
• gave evidence or information in connection with a claim under the EqA
• did any other thing for the purposes of or in connection with the EqA
• alleged that your employer or another person has committed an act that contravenes the EqA.

Less favourable treatment means a detriment (see above).

What remedies are available for disability discrimination?

If you are an employee, worker or job applicant who believes your employer (or another worker) has discriminated against you then you can bring an employment tribunal claim.

If you who believe that an organisation has discriminated against you in the provision of goods, facilities and services, you can bring a claim in the county court.

Tribunals and courts can award unlimited compensation, which can include an award for injury to feeling and financial loss because of the discrimination.

How long do you have to bring an employment tribunal claim?

An employment tribunal claim under the EqA relating to disability discrimination must be received by a tribunal within 3 months of the complaining act (i.e. 3 months less 1 day). This can be the last act in a series of detrimental acts over a period of time. The time limit is a strict one and will only be extended in certain circumstances.

The time limit can be extended during Acas early conciliation, which must be started before the time limit has expired.