Disability Discrimination Claims Leeds
What Is Disability Discrimination?
If an employee is treated less favourably due to their disability than other co-workers, whether as a single one-off act or on a regular basis—then this is disability discrimination.
There are six key areas of disability discrimination
- Direct discrimination
- Indirect discrimination
- Discrimination arising from disability
- Failure to carry out reasonable adjustments
The Equality Act 2010 outlined regulations to protect all employees from disability discrimination. This includes management, contract or agency workers, freelancers, self-employed staff, trainees, apprentices and also job applicants. Employees are not only covered within all areas of employment but also during training and when being considered for recruitment.
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The Equality Act 2010
The classification of disability and the acts defined as discriminating behaviour towards an employee in this area are set out in the Equality Act 2010 guidelines.
“A disability is a mental or physical impairment that has a substantial or long-term effect on your ability to perform normal day-to-day activities.”
A substantial effect is considered to be greater than minor or trivial but can vary over time. This means a substantial effect might not be continually demonstrated.
Long-term is considered as any condition with a duration in excess of 1 year (12 months).
Day-to-day activities are the types of act non-disabled people can carry out without any special attention, for example:
- Reading and writing
- Using a computer
- Following a timetable
- Sitting down
- Standing up
- Lifting, or otherbasic physical activities
Disability discrimination also includes progressive conditions and illnesses, for example:
- Multiple sclerosis
There are specific exceptions to illnesses classed as a disability; theseinclude:
- Addictions to alcohol, nicotine or other substance abuse—unless the addiction is the result of medically prescribed drugs or treatment.
Protection provided by the Equality Act applies as soon as an employee is diagnosed with a disability or progressive condition.
An employee is also covered by the guidelines set out by the Equality Act 2010 if they have experienced a disability in the past. Any discriminatory behaviour relating to a physical or mental health condition with a duration of over 12 months, where the employee made a full recovery, is liable for prosecution.
An employee must not be treated differently or unjustly because of a disability or that it is assumed they have a disability (this is known as discrimination or discrimination by perception) or if they have an association to somebody with a disability (this is known as associated discrimination or discrimination by association).
When treating a worker with a disability more favourably than a non-disabled worker, this cannot be considered as unlawful discrimination.
If an employee is treated unfairly because of their disability, this is direct discrimination.
Examples of direct discrimination include:
- An employee being overlooked for particular roles or positions, promotions or pay-rises because of their disability, despite being suitably qualified or experienced.
- An employer failing to employ disabled workers for personal or financial reasons.
- Failing to employ a disabled worker due to the additional time-off required to attend medical appointments or treatments.
- Failing to employ a worker due to the expense of creating a suitable working environment for their disabilities.
It is also considered discrimination if your employer treats you unfairly because you care for a disabled child, parent or other family member.
Direct discrimination can occur during recruitment, in interviews and on training courses. Any questions or enquiries into a possible employee’s health at application or at interview are considered exercises in screening out disabled applicants and are liable for prosecution.
Only conditions that relate directly to the role can be considered lawful practice; for example, if an employee’s disability or use of medication would affect their performance of machinery, causing health and safety issues for either themselves or to co-workers.
When rules or regulations set out by an employer do not at first appear to be discriminatory towards disabled employees, but the effect of those rules puts disabled employees at a disadvantage, this is considered indirect discrimination.
Examples of indirect discrimination can include:
- Holding meetings and creating deadlines in unsuitable locations,that could impact employees with mobility or physical impairments.
- Delivering important announcements only verbally,excluding those with hearing disabilities by not making suitable accommodations for them.
Any treatment intended to humiliate, offend or degrade a disabled employee is considered harassment. Action found to violate an employee’s dignity, to create an intimidating, hostile, degrading, humiliating or offensive environment in the workplace is classed as harassment and is liable for prosecution.
Other typical areas of harassment include:
- Making jokes or name-calling in regard to an employee’s disability
- Unwelcome discussion of the impact of the employee’s disability
- Refusing to work with a disabled employee
- Excluding disabled workers from training, meetings, social events or other gatherings
Employers are also liable to harassment or discriminatory behaviour towards disabled employees from third parties associated with the business. These can include:
- Clients and customers
- Delivery operatives
- Any other people in direct contact with the business
The employer should take appropriate action to prevent third-party harassment and to resolve any problems to the satisfaction of the employee.Whenever third-party harassment occurs on two separate occasions, it is considered that the employer hasn’t carried out appropriate steps to prevent harassment and may be liable for prosecution.
Victimisation is the delivery of unfair treatment resulting from an employee making a complaint about disability discrimination or helping a colleague to make a complaint of the same.
If an employer, manager or member of staff believe or assume that an employee has made a complaint of disability discrimination or has assisted another member of staff in doing the same, and subsequently treats them unfairly, then this is also considered victimisation.
Discrimination Arising From Disability
Discrimination also covers any actions arising from or connected to a disability but isn’t the disability itself. For example, this could include items such as:
- Not making accommodations for a guide dog
- Disallowing performance bonuses due to an employee’s time off for on-going medical treatment.
If an employer can show objective justification where discrimination arising from a disability negatively affects a role, this is not considered unlawful.
For example, if an employee’s deteriorating eyesight or hearing prevents them from being able to continue to carry out the role they were employed to perform. In situations such as these, the employer should make reasonable attempts to find a suitable alternative role for the employee. If this isn’t possible, as no such role is available, dismissal is considered a reasonable action.
Failure To Carry Out Reasonable Adjustments
In order for disabled workers to be able to carry out their role as easily as non-disabled workers, it is expected that the employer makes reasonable adjustments to the facilities. These areas can include:
- Parking priorities
- Seating arrangements
- Access facilities
The term ‘reasonable’ suggests a suitable provision, criterion or practice system. This is dependent on several factors and should also show consideration of the resources available to the employer.
Making A Disability Discrimination Claim
Any disabled employee who feels that they have suffered discrimination should follow the appropriate channels and complaints procedure as outlined by the business. The first step should be to complain to their manager about the inappropriate behaviour or system. If the matter cannot be resolved to the employee’s satisfaction, the next step would be to make a written complaint to the employer. A written complaint can be used as a record of the event if brought to a tribunal.
You may only raise an employment tribunal against an employer or colleague if you have followed the ACAS Early Conciliation process. Your claim must be made within 30 days of the discrimination or the most recent act of discrimination.
If successful, a tribunal will declare the rights of the claimant. It can be recommended that the employer implements key changes to their processes to avoid further issues and similar cases arising. The tribunal will also award compensation to the victim.
Awards to injury and feelings include hurt feelings, aggravated damages and injury to health. The Court of Appeal offers guidelines for the amounts of compensation—ranging between £800 for less serious cases to over £40,000 for the most serious. Awards can cover loss of earnings, additional losses and money lost from interest charges.