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Disability Discrimination

Protection against disability discrimination at work is given under the Equality Act 2010. This effectively replaced the Disability Discrimination Act 1995 in 2010. However, any incident that occurred before them was still covered by the Disability Discrimination Act.

The Equality Act, and its predecessor the Disability Discrimination Act 1995 with its subsequent amendments, protects employees, workers, business partners, and job applicants from discrimination in the workplace. There is no longer any minimum threshold number of staff in a business before this legislation applies to them.



It is important to note that the definition of “disability” in the law varies in different contexts. So a person may qualify as being “disabled” for the purposes of their employment rights while not qualifying as “disabled” for purposes of welfare benefits, or for a “blue-badge” and driving purposes. Under section 1 of the Disability Discrimination Act a person was classed as disabled if he/she has:-

  1. A physical or mental impairment,



    Which has-



    i. A substantial, and

    ii. Long term adverse effect,



    on his/her ability to carry out normal day-to day activities.

The relevant cases indicate that “substantial” simply means something more than minor or trivial. Long-term is taken to mean that the impairment has lasted at least 12months,mor is likely to last at least that long, or is likely to last for the rest of that person’s life, or  is likely to re-occur (if currently in e-mission). These requirments have, in the main, been replicated in the Equalty Act.



The legislation does not require a “mental impairment” to be clinically well-recognised before coming within the definition of a “disability”. This does not mean that every such condition will amount to a disability. As always it will be a question of fact for the tribunal in each case to determine, and in any event such a condition must have or be likely to last for 12 months. So, most causes of “stress” or “anxiety” are unlikely to amount to a disability, but clinically diagnosed depression may do so. The term “mental impairment” has been ruled to include dyslexia, so employers need to be prepared to accept that tribunals may take a wider view of the term “disability” than they might do. Furthermore employers do need to be aware that protection under the legislation is given to those that have had a disability but subsequently recovered.



Some progressive conditions constitute a disability from the point of diagnosis, e.gs multiple sclerosis, HIV, and some cancers.



The Disability Discrimination Act protects against;



A. “Direct” Discrimination



Against an individual i.e. where an employer treats a person less favourably than he/she treats or would treat a person not having that particular disability in similar circumstances.



B. “Disability –Related discrimination



In this type of case there is no need to identify an able-bodied person with which to compare (or a person with a different disability). The disabled person needs to demonstrate that, for a reason related to his/her disability, he/she was less favourably (i.e. in some way detrimentally) treated than another person to whom that reason, i.e. the reason for the treatment, does not apply.The approach taken by the courts and tribunals to this form of discrimination has changed in 2008, as a consequence of a decision of the House of Lords. 



Example



An employee has particularly poor timekeeping which is due to his/her disability. The employer dismisses him/her claiming that it was because of the poor timekeeping.  

The "old" analysis of these facts is as follows:-

A person to whom “that reason” did not apply is a person who did not have poor timekeeping. This second person would obviously not be dismissed, and so the disabled person will establish a “disability-related” act of discrimination.



The "new" analysis of these facts is as follows:-

The employer can establish that it would dismiss a non-disabled employee because of the poor timekeeping. Therefore, in dismissing a disabled employee for the same reason it has not treated that disabled employee less favourably, and there has been no disability discrimination. This applies even though the employee has been dismissed (ultimately) because of the disability as the poor time keeping was a reason for dismissal related to (and highly likely to be caused by) the disability.



This "new" approach is likely to significantly reduce the number of successful claims of "disability-related" discrimination in the Employment Tribunals. However, there still remains the statutory obligation to make "reasonable adjustments." see below.



In any “disability-related” discrimination case, such as the above example, the employer can defeat the claim in the tribunal if it can demonstrate that its conduct was “justified”. This needs to be a reason that is both material in the circumstances and substantial. So, treatment caused by a mere assumption about a particular disability will not amount to justification, as it is not material to the particular case in question and the disabled person’s particular circumstances.



In the case of JP Morgan v Chweidan the Employment Appeals Tribunal ruled that where a claim of "Disability-related discrimination" fails, the same facts should not support a finding of "Direct discrimination".This case illustrates the fact that the most helpful source of protection for workers under the Disability Discrimination Act really is the duty it places on employers to make "reasonable adjustments" (see below).



Other obvious areas where disability discrimination is prohibited are: - dismissal due to disability, subjecting them to any other detriment; subjecting (or allowing them to be subjected to) harassment, and victimisation.



C. The duty to make "Reasonable Adjustments"



A distinct duty imposed by the legislation is that employers are under a duty to make reasonable adjustments to prevent any provision, criterion, or practice, or any physical feature from placing the disabled worker at a substantial disadvantage compared to those that are not disabled. This is a very broad obligation. It means that employers might have to consider making changes to internal policies and procedures, working hours and practices, as well as to physical and structural alterations to assist a disabled worker. This could involve offering the person a new job (if possible) or significantly altering the content or scope of the existing job. It is important that medical advice is sought on these issues, and that any such advice given is considered seriously by the employer.



Under the Equality Act 2010, a  number of alterations to the law on disability discrimination have been be made. The alterations include the introduction of a new concept of "Discrimination arising from disability". This is intended to reverse the  effect of the case in the House of Lords which, in 2008, almost completely removed any real protection against "Disability-related discrimination" (see above). It introduced protection against "Discrimination arising from disability". The names of these types of protection may to many seem very similar. However, in the latter case there should be limited scope for any employer to argue that because it has treated a disabled person in the same way as a non-disabled person, it can avoid the claim of unlawful discrimination arising on detrimental treatment to a disabled person, where the treatment in question occurred as a consequence of the person's disability. This part of the Equality Act 2010 came into effect on the 1st October 2010.



There is no upper limit on compensation that can be awarded in cases of disability discrimination. This highlights the importance of good practice, and following proper procedures, as well as giving very careful thought to the situation posed by each individual “disabled” employee. 

 

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