Employment Law Solicitors: Disability Discrimination Claims   The Disability Discrimination Act 1995 (DDA) made it unlawful to discriminate against disabled people in employment. The legislation protects disabled persons against the following: direct discrimination, disability related discrimination that cannot be justified, failure to carry out reasonable adjustments, harassment, and victimisation

Direct Discrimination
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.

Disability Related Discrimination That Cannot Be Justified
This outlaws discrimination which occurs where someone is treated less favourably due to a disability than others are or would be treated to whom that reason does not or would not apply, and where such treatment cannot be justified. The burden to prove justification is on the employer but discrimination would only be considered justifiable if "the reason for it is both material to the circumstances of the particular case and substantial". What is considered material and substantial is a matter for the tribunal.

Failure To Carry Out Reasonable Adjustments
Under the DDA, 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 would have been expected to have made reasonable enquiries.

Harassment
This is defined as unwanted conduct that violates the victims dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment for them.

Victimisation
It is unlawful to treat a person less favourably because they have made allegations or brought proceedings under the DDA, 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. Before bringing the claim, the employee must set out their grievance in writing to their employer and wait 28 days before commencing their tribunal claim. Unlike in unfair dismissal claims, employees do not have to have had at least 1 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. 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). In that case, the Court stated that there should be a top band of between £15,000.00 and £25,000.00 for the most serious cases, a middle band of between £5,000.00 and £15,000.00 for serious cases, and awards of between £500.00 and £5,000.00 for less serious and one-off cases. The Court 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