Disability Discrimination
Are you an employer facing a disability discrimination claim? Do you need advice as to how to avoid potential claims?
The law protects individuals from discrimination on the grounds of disability. This is set out in the Disability Discrimination Act 1995 (as amended).
We successfully defended a claim for disability discrimination brought by a dock worker in respect of his employer's decision to remove him from operative duties when a spinal condition restricted his movement to such an extent that it risked placing him and colleagues at risk of an accident at work.
The Disability Discrimination Act ("DDA")
The DDA protects job applicants, employees and potentially ex employees. There is no qualifying period of employment.
The DDA applies to all workers and employees whatever the size of the employer and whether in the public or private sector.
Types of Disability Discrimination
The DDA sets out various types of discriminatory treatment: -
1. Direct discrimination
A person discriminates against a disabled person if on the grounds of that person's disability they treat that person less favourably than they would treat a person who does not have that disability.
2. Disability related discrimination
Disability related discrimination occurs if, for a reason which relates to a disabled person's disability, a discriminator treats them less favourably than he treats or would treat others to whom the reason does not or would not apply, and he cannot show that the treatment is justified.
3. Failure to make reasonable adjustments
Where a disabled person is at a substantial disadvantage an employer has a duty to take all steps as is reasonable, in all the circumstances of the case, to prevent that effect.
The duty to make "reasonable adjustments" arises when an employer's working arrangements or the physical features of an employer's premises place a disabled person at a substantial disadvantage.
The duty applies during recruitment and actual employment.
Some examples of reasonable adjustments:-
· Making adjustments to premises
· Allocating some duties to another person
· Transferring the disabled person to fill an existing vacancy
· Altering working hours
· Acquiring or modifying equipment
4. Victimisation
It is unlawful to discriminate against a person by victimising that person for either bringing or contemplating a claim under the DDA or for helping someone else to bring a claim.
5. Harassment
Under the DDA, harassment is unwanted conduct on the grounds of a person's disability that violates a person's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.
Definition of Disability
Disability is defined under the DDA as:-
"a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day to day activities".
"Long term" is defined as lasting or likely to last more than 12 months.
In order to affect normal day to day activities an impairment (if not treated) must have an impact on at least one of the following:-
a) mobility
b) manual dexterity
c) physical co-ordination
d) continence
e) ability to lift, carry or move everyday objects
f) speech, hearing or eyesight
g) memory or ability to concentrate
h) perception of risk or physical danger
An employer's liability for discrimination
An employer may well be liable for the discriminatory act of an employee, carried out in the course of the employment, whether or not those actions were done with the employer's knowledge or approval.
For example, if one employee is being treated les favourably by another because of their disability then the offender's employer may well be liable for failing to ensure that the treatment did not take place in the workplace.
Discrimination in practice
There are a number of contexts in which disability discrimination can affect employees in the workplace: -
· Recruitment
· Advertisements
· Arrangements for offering employment
· Terms on which employment is offered
· Promotion, transfer and training
· Bullying and harassment
· Dismissal
· "Any other detriment"
· Post employment discrimination
Complaints to an Employment Tribunal
If an employee feels they are being discriminated against on grounds of a disability by their employer or a co-worker then that employee can make a claim to an Employment Tribunal.
If a Tribunal finds discrimination has taken place then an award of compensation may be made. This may include an award for loss of earnings and/or injury to feelings.
In addition a Tribunal can make a declaration regarding the rights of the complainant and that the discrimination should cease.
Please note that this website is currently being worked on to update references to legislation following the introduction of the Equality Act 2010. Until this work is complete the site may reference to earlier legislation.
- Types of Discrimination
- Sex Discrimination
- Race Discrimination
- Disability
- Sexual Orientation
- Religion or Belief
- Age Discrimination
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