This occurs where someone is treated less favourably than someone else who is not disabled solely because of their disability. There is no defence to this form of discrimination. Direct discrimination includes associative discrimination (where an employee is treated less favourably because they are associated with another person who is disabled) and discrimination by perception (where an employee is treated less favourably because others perceive them to be disabled even if they are not).
Indirect Disability Discrimination
This occurs where a provision, criterion or practice is applied to all, but places those with a particular kind of disability at an unjustifiable disadvantage. An example would be where an employer releases a new staff handbook incorporating new company procedures, but fails to make it readable by blind and partially sighted staff (i.e. by, for example, failing to release a braille or audio copy and by failing to deploy other means of ensuring that blind and partially sighted employees were aware of its contents), thereby leaving those members of staff unaware of the company's new rules and procedures.
Discrimination Arising From Disability
This is a new type of claim which has been introduced by the EA 2010 in which those with a disability can bring a claim where they feel that they are being discriminated against by their employer in terms of being treated less favourably as a result of an issue arising in consequence of their disability. This was brought in to counter the problems caused by the decision in the case of London Borough of Lewisham v Malcolm (2008). As a result of the Malcolm case, disability-related discrimination (the old type of claim which has now been replaced by the new type of discrimination arising from disability) became much harder to prove because in that case, it was decided that the correct comparator was a non-disabled person with similar circumstances. Essentially, what this meant was that employers were able to defeat disability-related discrimination claims because they were able to show that a comparator would have been treated in exactly the same way. The new type of claim of discrimination arising from disability attempts to eliminate this problem. It removes the need for a comparator and the employee now simply needs to show that the less favourable treatment relates to something arising in consequence of their disability. Nevertheless, an employer will have a defence if they can demonstrate that the less favourable treatment is a proportionate means of achieving a legitimate aim or they were unaware of the disability.
Failure To Carry Out Reasonable Adjustments
Under the DDA 1995 and EA 2010, employers must make reasonable adjustments where a requirement or procedure and/or any aspect of their premises, place a disabled person at a substantial disadvantage in comparison with non-disabled persons. This obligation only applies where the employer is either aware of or reasonably ought to have been aware of the disabled person's disability. Accordingly, disability discrimination cannot be justified where a reasonable adjustment would have prevented the discrimination from occurring. Whether an adjustment is reasonable is determined by reference to its effectiveness, its cost, the practicability of implementing it, and the wealth and size of the employer. Employers can obtain assistance to fund reasonable adjustments, such as under the Access To Work scheme, and this must be taken into account when determining whether a potential adjustment is reasonable. Ignorance of sources of financial assistance is no defence as a prudent employer who would have been expected to have made reasonable enquiries.
This is defined as unwanted conduct that violates the victims dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment for them. Furthermore, with the introduction of the EA 2010, an employee can bring a claim of harassment even where it is not directed at them personally, so long as they can show that the harassment created an offensive environment for them to work in.
It is unlawful to treat a person less favourably because they have made allegations or brought proceedings under the DDA 1995, the EA 2010, or because they have helped another person to do so.
Bringing A Disability Discrimination Claim
A tribunal claim must be made within three months of the discriminatory act (or last discriminatory act) complained of. Unlike in unfair dismissal claims, employees do not have to have had at least 2 years continuous service with the employer to be entitled to bring the claim. Should the employees claim be successful, the tribunal can make recommendations and award compensation. Should the employer fail to comply with recommendations made by the tribunal for action to reduce discrimination without reasonable justification, the tribunal can award additional compensation on top of what it may have already awarded. Furthermore, for claims brought from October 2010 onwards, Tribunals can now demand that employers implement changes to prevent further discrimination taking place. Compensation awards in discrimination cases are unlimited and unlike in unfair dismissal cases, there is no such thing as a 'basic' or 'compensatory' award. Instead, the award normally comprises the following:
- Injury to Feelings: Comprise separate awards for hurt feelings, aggravated damages, and injury to health. The criteria for assessing compensation for hurt feelings were set out by the Court of Appeal in the case of Vento v Chief Constable of West Yorkshire (No.2) (2003), as amended by Da'Bell v NSPCC (2009). As a result of these cases, there is a top band of between £18,000.00 and £30,000.00 for the most serious cases, a middle band of between £6,000.00 and £18,000.00, and awards of between £500.00 and £6,000.00 for less serious and one-off cases. The Court in Vento stated that awards of less than £500.00 should be avoided. An injury to health claim can be incorporated into the injury to feelings claim, but should there be a separate award for it, the tribunal has to ensure that there is no element of duplication. Finally, aggravated damages can also be awarded as part of the injury to feelings claim, although awards for this element do not usually exceed £5,000.00 and are only awarded should the employers conduct have been especially cruel and malicious.
- Loss of Earnings: Normally makes up the bulk of the claim and includes both actual and future loss of earnings. Future loss can be extensive where psychiatric injury has been sustained as a result of the discrimination and makes it difficult for the employee to obtain new and appropriate employment.
- Injury to Health (Personal Injury): Is most commonly for psychiatric injury. Nevertheless, where a claim for personal injury is included, the employee loses the right to bring a claim in the civil courts for it.
- Ancillary Losses: These can be for items such as the cost of looking for alternative employment and pension loss.
- Interest: Interest on the compensation award can be claimed
What To Do If You Have A Disability Discrimination Claim
Should you require advice on any area of disability discrimination, then please do not hesitate to contact us. We can be contacted either by telephoning us on 0333 3010 700, or by completing the questionnaire on the right hand side of this page.
As a specialist employment law firm, you can rely upon us to provide you with quality advice from a leading employment law solicitor within the profession.
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How To Contact Us
To contact The Employment Law Solicitors about an employment law problem, please either telephone us on 0333 3010 700 or complete the short questionnaire above. Simply click the 'Send Now' button to submit the questionnaire once you have completed it. Upon receipt, it will be assessed by a solicitor who will then contact you to discuss the matter. The solicitor appointed to contact you, will be a specialist in your type of employment law issue. The Employment Law Solicitors handle cases on behalf of clients throughout the country. Headquartered in Wilmslow (Cheshire), we also have offices in Manchester, Liverpool, Warrington (Cheshire), Chester (Cheshire), Birmingham, Leeds, Sheffield, Exeter, London, Nottingham, Bristol, Stoke-on-Trent, and Preston.
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