I frequently receive enquiries from employees and workers suffering disability discrimination at work. Recent studies have identified that almost half of disabled people in employment consider they have been bullied or harassed in the workplace because of their disability. Many also report that they have tried to hide their disability from their employers. Such information is extremely concerning, but from my client’s problems, I suspect this only touches the surface of widespread discrimination against disabled people.
When I receive enquires about disability discrimination, I always try to assist my clients in explaining what elements are necessary for a disability discrimination claim at the Employment Tribunal. I would always advise any person who believes they are suffering disability discrimination to obtain independent legal advice and, of course, I hope they would contact me at Lincs Law Solicitors. However, if you are considering raising your own complaint or representing yourself at the Employment Tribunal, I set out below some general guidance.
What is a Disability?
The Equality Act 2010 states that a disability is a ‘physical or mental impairment which has a substantial and long term adverse effect on [the disabled person’s] ability to carry out normal day to day activities’.
Substantial means something more than a minor impact or inconvenience. The Employment Tribunal are aware that medical impairments can fluctuate. Symptoms may come and go completely or increase and decrease in their severity. The Employment Tribunal are also aware that people with medical impairments may have their symptoms alleviated through medication or, indeed, through their own coping strategies. The ability of a disabled person to cope with a medical impairment does not mean that the impact upon them is not substantial.
The medical impairment also has to be long term, which means the effects must have lasted (or be likely to last) for at least 12 months.
The reference to day to day activities refers to normal everyday activities. The Employment Tribunal have considered activities such as using a computer, writing, mobility, driving etc to be day to day activities.
There are some conditions, such as cancer, where the person is automatically considered to be disabled and entitled to protection. This is even if the effects of that person’s condition are not yet substantial in their impact on day to day activates. The fact of the diagnosis is sufficient for the person to be considered a disabled for the purposes of the Equality Act 2010 and disability discrimination protection.
Who is protected from Disability Discrimination?
In the employment sphere employees, workers, job applicants, trainees, Company Directors etc are protected from disability discrimination by their employer. All aspects of the relationship are covered. For example, an employee who is discriminated against in the recruitment process would be able to bring a claim against their prospective employer even if they never worked a day for that business.
How do you know if you have suffered Disability Discrimination?
The Equality Act 2010 sets out various ways in which an employer’s treatment of a disabled person is unlawful. Briefly, it is likely you have suffered disability discrimination if any of the following have occurred: –
This is where you have been treated less favourably because of your disability than someone without your disability would have been treated. For example, if an employee with a disability was refused training because of their disability.
This is where the employer has a policy, procedure or similar which appears to apply to everyone but has a detrimental impact upon someone with a disability. For example, giving a written test to all applicants for a position may have a detrimental impact upon people with dyslexia.
Failure to make Reasonable Adjustments
The employer has an obligation to make reasonable adjustments to assist disabled people overcome disadvantages they suffer because of their disability. Taking our example above, if the employer believed it necessary to test all applicants for a position, they should have considered what reasonable adjustments (for example software, additional time etc) should be made to remove the disadvantage suffered by dyslexic candidates.
Discrimination Arising from a Disability
This is where a disabled person is treated unfavourably because of something related to their disability. For example, if they are off work for an increased period of time due to ill health as a consequence of their disability and are dismissed. This could be discrimination arising from a disability.
This is where a disabled person suffers unwanted conduct which causes a distressing, humiliating or offensive environment for them. Situations such as jokes about someone’s disability which causes them distress could be a type of disability harassment.
If you believe you are suffering Disability Discrimination what action should you take?
The Employment Tribunal will expect you to raise your concerns with your employer. This will usually be done through your employer’s grievance procedure. For more information about how to raise a grievance or complaint, please see my blog post https://lincslaw.co.uk/blog/how-do-i-raise-a-complaint-or-grievance-at-work Any evidence you can gather to assist in your grievance will be extremely helpful. If the matter can be resolved at that stage, then all to the good.
If your employer continues to discriminate against you because of your disability, you may have to consider submitting a claim to the Employment Tribunal. You will need to begin the ACAS Early Conciliation process within three months less one day from the last act of discrimination. The time limit for submitting your Employment Tribunal claim will depend upon the dates of your ACAS Early Conciliation. However, it is important that you begin the ACAS Early Conciliation process within the three month deadline as to fail to do so may render your claim out of time.
Help from Lincs Law Solicitors
If you believe you have suffered disability discrimination at work, please call us on 01522 440512 for a free, no obligation, telephone consultation. Alternatively, for more information about Lincs Law Solicitors, please visit our website at www.lincslaw.co.uk.
Sally Hubbard, Specialist Employment Law Solicitor
Lincs Law Solicitors, Lincoln.