Disability discrimination in the workplace

Examples of disability discrimination

The following are some examples (but not an exhaustive list) of when disability discrimination may occur in the workplace:

• Your employer makes you redundant because you have a disability
• Your employer has offices on the second floor of a building with no lift – this would be indirect discrimination if you were unable to properly climb stairs
• One of your colleagues says something about disabled persons which you find offensive (whether you’re disabled or not)
• Your employer dismisses you for a lack of punctuality but fails to investigate whether the punctuality issues had been caused by your disability
• Your employer fails to make reasonable adjustments in the workplace to accommodate your disability

The definition of disability under the Equality Act 2010

In order to make a claim for disability discrimination under the Equality Act 2010, you have to show that you are disabled for the purposes of the Act. This means that the burden of proof is on you to satisfy the Tribunal that you are in fact disabled and you must provide evidence to show this.

Under the Equality Act 2010 a “disabled person” is a person who has a “disability”. Section 6(1) reads:

Impairments which “automatically” qualify as disabilities

Cancer, HIV infection, and multiple scleroris are all “automatically” deemed to be disabilities under Schedule 1 of the Equality Act 2010. In some circumstances, partial sight may also be deemed to be a disability. Claimants who suffer from any of these impairments should obtain a letter from their GP or consultant (as relevant) to confirm that they suffer from the condition.

Did you know?

Direct disability discrimination

Direct disability discrimination occurs when your employer treats you less favourably than other non-disabled employees (or employees who do not possess that particular disability) because of your disability.

The definition of direct discrimination under the Equality Act 2010 is:

If you think that you have been discriminated against because of your disability then there are three important things that you must show:

1. That you have been subjected to some form of disadvantage – in the above example the employee’s dismissal is clearly a disadvantage
2. That you were subjected to this treatment because of your disability – causation is an extremely important issue and you must be able to link the manner in which you have been treated and the reason why you (think you) have been treated in that manner
3. That someone who doesn’t possess your disability (or particular disability) has or would have been treated more favourably than you – this may be an actual comparator (i.e. someone that you know has been treated more favourably) or a hypothetical comparator (i.e. a hypothetical employee who possessed similar attributes to you but not your disability or particular disability)

Associative or perceived disability discrimination

Employees may also be subject to disability discrimination even if they don’t possess a disability themselves. This can occur in the following circumstances:

1. You are treated unfairly because of a protected characteristic (in this case a disability) that someone that you are associated with possesses e.g. a friend or a relative – this is known as “discrimination by association”
2. You are treated unfairly because of a protected characteristic (in this case a disability) of someone that you do not even know i.e. customers or clients of the business; and/or
3. You are treated unfairly because you are (incorrectly) perceived to possess a disability

Indirect disability discrimination

Under the Equality Act 2010, indirect discrimination occurs when:

There are a number of stages that you must go through to prove that they have been indirectly discriminated against because of your disability:

1. You must show that a practice, criterion or provision (“PCP”) has been applied to you – a PCP is generally some form of requirement, condition or practice that your employer operates e.g. the requirement that you have particular qualifications, that you have certain types of previous work experience, or that the employer over-burdens employees with work (among other things)
2. That this PCP has been applied to you and other people who are not of your disability (or particular disability)
3. That the PCP puts people with a disability (or a particular disability) at a particular disadvantage as compared to those whom do not share the disability (or particular disability)
4. That the PCP does in fact put you at a disadvantage because you have that disability (or particular disability)

Defence to indirect discrimination

Unlike direct disability discrimination, there is a defence available for employers should an employee succeed with a claim for indirect discrimination. This defence is known as the “objective justification” defence. In order to succeed with an objective justification defence the employer must show that the PCP which put you at a particular disadvantage was a proportionate means of achieving a legitimate aim.

Indirect discrimination claims often tie in with failure to make reasonable adjustment claims. Indirect discrimination is a complex area of law

Discrimination arising from disability

Discrimination arising from disability occurs when a disabled employee is subjected to unfavourable for a reason arising in consequence of their disability.

Discrimination arising from disability is defined under s.15 of the Equality Act 2010:

Failure to make reasonable adjustments for disability

If you suffer from a disability then your employer has a duty to make reasonable adjustments for your disability if you suffer from a substantial disadvantage at work because of some facet of your workplace. A failure to make reasonable adjustments constitutes unlawful discrimination.

Under section 20 of the Equality Act 2010, the duty to make reasonable adjustments applies when:

Harassment because of disability

It is disability discrimination if a colleague is harassing you or anyone else because of a disability. You may be able to take action about this.

“Harassment” occurs under s.26(1) of the Equality Act 2010 when:

You can therefore make a claim for disability-related harassment if, for example, one of your colleagues makes a remark at work about disabled people (or about your particular disability) which you find violates your dignity or humiliates you.

Employers are also liable for the harassment of their employees under s.40 of the Equality Act 2010 (although there is a defence available to employers under s.109 Equality Act 2010).

Harassment need not be related to your disability – you can claim that you have been harassed if, for example, you are not disabled but a colleague makes a derogatory remark about disabled people which offends you.

Victimization

It is unlawful for you to be victimized because you have done a “protected act” (i.e. because you have complained of discrimination in any way).

Victimization is defined under s.27 of the Equality Act 2010:

If you are subjected to any detriment because you have brought a claim under the Equality Act 2010, because you have given evidence in any claim for discrimination or, for example, you have made an allegation that your employer has breached the Equality Act 2010, then you may be able to make a claim for victimization to the Employment Tribunal.

Pre-employment health questions and disability discrimination

You may have been discriminated against because of your disability if a prospective employer asked you questions about your health before offering you a job.

Except in the specific circumstances set out below, it is unlawful for an employer to ask any job applicant about their disability or health until the applicant has been offered a job (on a conditional or unconditional basis) or has been included in a pool of successful candidates to be offered a job when a position becomes available. This includes asking such a question as part of the application process or during an interview. Questions relating to previous sickness absence are questions that relate to disability or health.

When it might be lawful for your employer to ask about your disability or health

However, there are six situations in which it may be lawful for an employer to ask you questions relating to your disability or health:

1. To ask questions relating to reasonable adjustments that would be needed for an assessment designed to assess a person’s suitability for the job
2. To ask questions to determine whether you can undertake an assessment as part of the recruitment process
3. To ask you questions about disability and health for the purposes of monitoring the diversity of applicants
4. To ask you if you have a disability for the purpose of determining whether you may benefit from any measures aimed at improving disabled people’s employment rates
5. If a job has an occupational requirement that means a person with a particular impairment then the employer can ask you questions to determine whether you have that impairment
6. To ask questions about health and disability can be asked where there is a requirement to vet applicants for the purposes of national security

Applying for jobs if you are disabled

It is unlawful to discriminate against you because you are disabled if you are applying for a job. Your employer can only ask you questions about your health in limited in circumstances (see above) and must not make a decision not to employ you because of your disability. If you do think that you have been discriminated in a job application because of your disability then you may have a claim for disability discrimination in the Employment Tribunal.

Action you can take if you think that you’re being discriminated against

If you think that you are being discriminated against or harassed because of your or another person’s disability then you should take action as soon as possible. Below are some examples of what you can do:

• Inform your line manager that you believe that you are being discriminated against. Make sure that you put a complaint in writing (preferably by email so that there is a time and date stamp on the complaint and you can prove that it has been sent to the relevant person) and keep a copy. If you think that it is your line manager who is discriminating against you then make a complaint so someone else in a position of authority in your organisation.
• Make a formal complaint (known as a “grievance”) to your HR department and also keep a copy of this
• Obtain specialist advice from a qualified person – you can either consult a lawyer directly or make an appointment with the Citizens Advice Bureau to obtain initial advice
• Collect evidence of the incidents that you think are discriminatory. An important thing to do is to keep a diary of all of the incidents of discrimination that you think that you have suffered and to record exactly who was involved and what happened. Try and obtain any witness evidence that you can from colleagues who have seen or heard things. Keep any letters, emails, minutes of meetings etc. that you think are relevant.

Making an Employment Tribunal claim for disability discrimination

If you want to make an Employment Tribunal claim for disability discrimination then you must do the following:

• Make your claim within three months of the last date of discrimination (this is also known as the “limitation date”). The last date of discrimination can often be difficult to pinpoint so you must be extremely careful that you do not fall outside of the three-month period
• Since May 2015 you must also apply to ACAS for a certificate of early conciliation – if you fail to do so then you will not be able to bring your claim in the Employment Tribunal (unless very limited exceptions apply)
• Obtain evidence from a relevant medical professional that you are in fact disabled
• Gather enough evidence to allow you to prove your case in the Tribunal – this includes both documentary evidence and, if applicable, witness evidence.

It’s important to note that (unlike, for example, unfair dismissal claims) you don’t need to have worked for your employer for any particular length of time to make a claim for disability discrimination – you have the right to do this from “day one”.

What happens if you’re victimized for making a complaint of disability discrimination?

If you do any of the acts listed below (known as a “protected act”) and are then subjected to any form of detriment or dismissal because you have done so then you may be able to make a claim for “victimisation” under the Equality Act. A protected act can include:

• Making or threatening to make an informal or formal complaint about disability discrimination within your organisation
• Helping a colleague to make a complaint or helping them with their Employment Tribunal claim regarding disability discrimination
• Making or threatening to make an Employment Tribunal claim for disability discrimination

The tactics of bringing a claim or reaching a negotiated settlement

If you have been subjected to disability discrimination at work then how you react to this can be a difficult decision: you may be reluctant to make a complaint about the discrimination for fear of ‘rocking the boat’ (particularly if the harasser is a senior colleague), or causing you more stress than you are already suffering, and you may not wish to risk damaging your career.

We find that clients often find it difficult to return to their job after they have been discriminated against and, further, most of our clients who have experienced such conduct want justice – they want to hold the person discriminating against them to account for what they have done and to stop them from doing the same thing again to another person in the workplace.

Aside from trying to resolve the problem internally (see Action you can take if you are being discriminated against at work) you generally have two options:

1. Bring a claim in the Employment Tribunal; or
2. Try to negotiate a settlement

Bringing an Employment Tribunal claim

Bringing an Employment Tribunal is normally a ‘last resort’, given the uncertainty of success of a claim in the Employment Tribunal, the stress caused, the time that such a claim takes, and the potential cost of the claim (if you instruct lawyers to help you). Equally, the Employment Tribunal is a public forum.

An Employment Tribunal is always an option, and it is a useful option, but it is normally the best option if you cannot resolve matters internally with your employer and/or cannot reach a settlement with them.

Negotiating a settlement

We normally recommend trying to see if a negotiated settlement can be reached with your employer, and we recommend that you try this before resigning from your job (if you feel that you can no longer continue to work for your employer). You are always going to be in a stronger negotiating position if you negotiate before resigning.

If you are successful with negotiating a settlement with your employer then a settlement agreement would normally be agreed – under this settlement agreement your employment will normally terminate (although this is not always the case) and, in return for you agreeing to not pursue any claims against your employer, you would normally be provided with financial and non-financial benefits – this includes

• Financial benefits: payment of your notice pay; any outstanding salary and holiday; plus compensation for termination of employment & injury to feelings (which can normally be paid tax-free to you up to a maximum of £30,000);
• Non-financial benefits: this normally includes (among other things) your employer providing you with an agreed reference, an agreed announcement, mutual confidentiality clauses, and allowing you to retain company property (such as, for example, your company laptop or mobile phone)

It is always a good idea to seek expert legal advice from a solicitor before taking any steps (whether this is negotiating a settlement or bringing an Employment Tribunal claim), as any mis-steps (such as, for example, resigning before trying to negotiate) could damage your prospects of reaching a settlement that you are happy with.

What compensation can you receive in a claim for disability discrimination?

If you are successful with a claim for disability discrimination in the Employment Tribunal then you can normally pursue the following kinds of compensation:

1. Any loss of earnings that you have suffered as a result of the discrimination that you have suffered (for example, if you’ve lost out on a bonus or you have had to resign because of the discrimination);
2. Any injury to feelings that you have suffered due to the discrimination;
3. Any personal injury that you have suffered
4. Aggravated damages (this is a rare award and is normally relevant if there has been particularly bad behaviour on your employer’s part)

Examples of compensation awarded in disability discrimination claims

• Mrs J Marsden v Department for Work and Pensions (ET2405365/2018) – in this case the Employment Tribunal awarded the Claimant almost £70,000 in compensation after finding that she had been subjected to disability discrimination by her employer (read our analysis of this case here)
• Flemming v East of England Ambulance Services NHS Trust – ET/3400184/2016 – in this case the Employment Tribunal the Employment Tribunal awarded the Claimant over £90,000 after finding that he had been subjected to disability discrimination and unfairly dismissed (read our analysis of the case here, read the decision of the Employment Tribunal here)
• Austin v The Leeds Teaching Hospitals NHS Trust – ET/180139/2017 – in this case the Employment Tribunal held that an employee with 25 years’ service with the NHS who was dismissed for checking her medical records had been subjected to a discriminatory dismissal, and awarded her almost £300,000 in compensation (read our analysis of the case here, read the decision of the Employment Tribunal here)
• Mr A Singh v NFT Distribution Operations Ltd – ET/1401292/2018 – in this case the Employment Tribunal held that an employer had discriminated against an employee by withholding employer’s sick pay  (read our analysis of the case here, read the decision of the Employment Tribunal here)
• H v Partnerships In Care Ltd – 3323674/2019 – in this case the Employment Tribunal found that the Respondent’s withdrawal of a job offer based on the Claimant’s medical condition amounted to discrimination, awarding the Claimant almost £35,000 in compensation (read our analysis of the case here, read the decision of the Employment Tribunal here)
• Nurse suffering from depression wins case for disability discrimination (Ms CC McKenzie v University Hospitals of Leicester NHS Trust – 2603829/2020 – in this case a nurse who was suffering from depression was unfairly dismissed and subjected to disability discrimination after she was dismissed for the period of time she had time off work due to sickness absence (read our analysis of the case, read the decision of the Employment Tribunal)

How we have helped clients with disability discrimination claims

We have included below details of case studies where we have helped clients that have been sexually harassed in the workplace:

• Redmans wins disability discrimination claim for client with Multiple Sclerosis – Chris Hadrill, a specialist employment solicitor at Redmans, represented a client in their disability discrimination claim and won over £30,000 for the client (read the case study here)