Recognising disability discrimination in the workplace - Palmers Solicitors

Recognising disability discrimination in the workplace

Recognising disability discrimination in the workplace

With poor treatment of disabled workers being increasingly recognised as an issue across many sectors in the UK, it is unsurprising that more workers are seeking justice following instances of discrimination.

Given that discrimination doesn’t necessarily have to be deliberate you may be wondering how to recognise disability discrimination when it happens.

Our employment law expert, Lisa Judd, outlines some of the key rights of disabled workers:

What are your rights?

Under the Equality Act 2010, job applicants, current and former employees and certain other workers (e.g. some contractors  agency workers  franchisees) in the UK have the right to not to be subject to ‘direct or indirect discrimination, discrimination arising from their disability, harassment and victimisation’ in the workplace.

Let us take a brief look at each type of discrimination

Direct discrimination occurs when someone is treated less favourably than others because of disability. It may include, but is not limited to:

  • Making jokes or offensive remarks about disability
  • Being explicitly denied a job or opportunity because of disability
  • An employer explicitly refusing to consider any adjustments regardless of how reasonable they are

Indirect discrimination is harder to recognise because it is generally more a structural, policy-driven issue. It typically occurs where an employer applies a requirement to everyone (not just its disabled employees) but where the requirement puts some at particular disadvantage because of disability.

So, a company-wide policy requiring office-based working might be harder to comply with for employees with agoraphobia, or disabilities making commuting difficult.

It is open to the employer to argue that their requirement can be objectively justified (see below).

Associative Disability Discrimination occurs when you are subject to direct and indirect discrimination because you are Associated with someone with a disability is also prohibited. So, for example this might include: –

  • Refusing home working to a worker who is a disabled person’s main care giver
  • Making adverse comment about the parent of a disabled child requesting time off for the child’s medical appointments or disability related ill health.

You might have a claim for Failure to Make Reasonable Adjustments where an employer refuses to make reasonable adaptations and cannot justify its refusal. You are able to request adaptations which would allow you to do your job without being ‘substantially disadvantaged’ compared to others without the same disability. These might include: –

  • Being allowed more time off sick before absence management sanctions are applied
  • Flexible or remote working arrangements
  • Adaptation to premises e.g. to provide a wheelchair-accessible working space
  • Auxiliary aids e.g. a special chair / mouse or IT software
  • Adapted safety equipment such as visual fire alarms
  • Light duties or a reduced workload

Discrimination Due to Something Arising from Disability occurs when someone is treated unfavourably due to something arising from disability e.g. being issued with attendance warnings or dismissed due to sickness absence. Again, the employer can argue that its action was justified e.g. they had made as much adjustment to their absence management trigger points as they could accommodate.

Harassment occurs where someone engaged in conduct related to disability which has the purpose or effect of intimidating or humiliating or creating an offensive environment for someone else (who need not be disabled themselves to be offended).

Objective justification

On some occasions, your employer may need to make a decision that may place someone at disability related disadvantage, but it might still be permitted if there is an ‘objective justification’.

In effect the employer would need to be able to show its actions were “a proportionate means of achieving a legitimate business aim”, any unfavourable treatment would need to be an appropriate and reasonably necessary means of achieving its aim, and the Tribunal would then have to balance the reasonable needs of the business against the discriminatory effect of the employer’s actions. This defence might fail where the employee could point to a less discriminatory method of achieving the same aim.

For example, if you drive often as part of your job but are diagnosed with an eye condition which means it is no longer safe for you to drive, then you may be dismissed but only if it is not possible to move you to an alternate role you could do safely.

Victimization occurs where you are subject to detriment for having done a protected act e.g. making a complaint/grievance/Employment Tribunal claim alleging discrimination.

I think I’ve been discriminated against – what can I do?

Take advice quickly. Many employment claims need to be commenced within 3 months less one day from the act (or omission) complained of and it is not always easy to identify all relevant dates in discrimination claims.

Sometimes reasonable adjustments are not made because an employer does not understand enough about the effect of a particular disability, what adjustments are needed and why they are needed. We can assist you with making a request for any adjustments you need and in how to go about getting Occupational Health to make similar recommendations.

We can also advise you on your options e.g. on raising a grievance and /or mediating to reach an informal solution or more formal settlement agreement.

If this is not effective at resolving the issue, we can also represent you within ACAS Early Conciliation and then in bringing an Employment Tribunal claim.

If the Employment Tribunal finds that discrimination has taken place, your employer can be ordered to compensate you for any financial loss you have suffered (e.g. loss of earnings, pension or any other benefits, as well as any damages for injury to feelings and the Tribunal can make a recommendation or declaration). In rare cases, you may also receive a payment towards your legal costs.

We appreciate that pursuing litigation in addition to managing a disability and potentially seeking new employment can be challenging, so we provide all-encompassing support that prioritises your needs.

Contact us to find out more.