Have you suffered from disability discrimination in the workplace?

If you have a disability, you are protected against discrimination. Discrimination in the workplace occurs when an employee with a disability is treated unfairly because of, or as a result of, their disability.

What constitutes a disability?

Disability is defined under the Equality Act 2010 and can be broken down into the following elements:-

1. A physical or mental impairment;
2. The impairment must be substantial and long term; and
3. The impairment must have an adverse effect on your ability to carry out normal day-to-day activities.

The definition covers those who have mental health conditions as well as those with physical impairments. There are also conditions which are automatically considered to be a disability from the moment of diagnosis. This includes HIV, cancer or multiple sclerosis.

How am I protected if I have a disability?

If you have a disability, this is known as a protected characteristic. You are protected from unlawful discrimination on the grounds of a protected characteristic.

If you are disabled, your employer has a duty to make reasonable adjustments to ensure that you are not put at a substantial disadvantage when compared to a non disabled person. For example, where an employee has a physical condition which affects their back, a reasonable adjustment may include providing suitable equipment them to the employee to work at his/her desk. Or, where an employee is suffering from a mental health condition, a reasonable adjustment may be to reduce the employee’s workload or to allow for flexible working to attend therapy appointments, or work at different times. What will be considered a reasonable adjustment will depend on each of the employee’s individual circumstances, medical condition and the size and resource available to the employer.

How can I tell if I have suffered from discrimination?

There are different types of discrimination that apply to disability. These are as follows:-

1. Direct disability discrimination – this is where an employer treats a disabled employee less favourably than a non-disabled employee or an employee who does not possess the same disability as a result of the employee having a disability. An example is where you have been dismissed as a result of your disability.
2. Indirect disability discrimination – this is where an employer has a particular policy or practice which causes a group of people with a protected characteristic to suffer a disadvantage when compared to employees who are not disabled. For example, if you are in a wheelchair and your office is located on the second floor in the building that has no lift, this could amount to indirect disability discrimination.
3. Discrimination arising from disability – this occurs where a disabled employee is treated unfavourably because of something arising from, or in consequence of his/her disability. This may occur where as a result of your condition, you are required to take a number of toilet or rest breaks but are dismissed by your employer for taking additional breaks.
4. Victimisation – if you have suffered from a detriment due to asserting your rights, this is known as victimisation. This may occur where you have made a complaint that you did not receive a pay rise as a result of your disability and are therefore dismissed as a result of you raising a complaint of discrimination.
5. Harassment – this is defined as unwanted conduct and must be relevant to an employee’s disability. It must also have the purpose or effect of violating a persons dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim. This includes bullying, threats or inappropriate questioning in relation to your disability.
6. Failure to make reasonable adjustments – this applies where the employer has a practice, criteria or provision that puts you at a disadvantage due to your disability. An employer is expected to consider and make reasonable adjustments to alleviate the disadvantage. For example, a failure may include an employer’s refusal to modify equipment or adjusting redundancy selection criteria for a disabled employee.

It can often be difficult to determine the type of discrimination which you have suffered and therefore you may require assistance to determine this.

How can I make a claim for disability discrimination

You can present a claim for discrimination at the Employment Tribunal. The claim must be made within 3 months less a day from the last date of discrimination. You do not need any set length of service to make this type of claim, and the claim can be made from the point of job application.

You must contact ACAS prior to issuing a claim and must be in receipt of ACAS’ certificate of early conciliation. A link to Acas’ website can be found here.

Once you have issued a claim, you will need to prove to the Employment Tribunal that you suffer with a disability in accordance with the Equality Act 2010. This will involve collecting documentary evidence and witness evidence to prove your disability.

How can we help?

Our experienced employment team would be happy to assist you determining whether you have a claim for discrimination and with bringing a claim to the Employment Tribunal. Please contact our Trainee Solicitor for an initial chat on 01202 057747 or email rebeccca.bennett@ellisjones.co.uk