If you believe you have been discriminated against in the workplace because of your disability, you should seek legal advice from a lawyer who specialises in disability discrimination claims because your employer or other person would be acting unlawfully if it can be proved to be the case. To find out more about how to establish whether you were treated unfairly and whether you have a valid disability discrimination claim as well as who could be held liable, please read on.
The Definition of Disability Discrimination in the Workplace?
If you are put at a disadvantage for any reason that is directly related to your disability or you are treated less well in any way that is covered by the Equality Act, you would be entitled to file a disability discrimination claim to seek compensation.
The disability discrimination that you experience while at work may be a one-off event or any of the following:
- An application of a policy or rule
- The existence of communication or physical barriers which makes it harder or impossible for you to access something
It is worth noting that disability discrimination is unlawful even if the action or actions are unintentional.
The Law Relating to Disability Discrimination
Under the Equality Act 2010, you cannot be discriminated against in the workplace or elsewhere for any of the following reasons:
- Because you are disabled
- Because someone believes you are disabled – in law this is referred to as discrimination by perception
- Because you are linked to someone else who has a disability – in law this is referred to as discrimination by association
It is also worth noting that treating a disabled person more favourably than another worker or person who is not disabled, is not deemed as being unlawful discrimination.
The Definition of Disability
The definition of a disability as described in the Equality Act 2010 is as follows:
- A physical condition that negatively impacts an ability to carry out normal daily activities whether long-term or which has a substantial impact on a person’s life
- A mental condition that negatively impacts an ability to carry out normal daily activities whether long-term or which has a substantial impact on a person’s life
The Equality Act protects you from being discriminated against if you suffer from any of the following conditions:
- You suffer from a progressive medical condition such as HIV
- You are suffering from cancer
- You suffer from multiple sclerosis
You are protected from being discriminated against if you suffer from any of the above even if you are able to carry out normal daily activities. You are also protected from the moment you are diagnosed as suffering from a progressive health condition.
It is worth noting that the Act protects you from being discriminated against should you have been disabled in the past. An example being if you suffered from a mental health condition and did so for over 12 months but are now fully recovered.
Are There Different Types of Disability Discrimination?
Under the Equality Act 2010, the six main categories of disability discrimination are as follows:
- Direct discrimination
- Indirect discrimination
- A failure to set in place reasonable adjustments
- Discrimination that arises from disability
- Harassment
- Victimisation
Direct Discrimination
- Direct discrimination is when you are treated worse than another work colleague or person because of your disability – an example being should you apply for a position and have the best qualifications for the job but are turned down because you told a potential employer that you suffer from multiple sclerosis. The potential employer would have assumed that you would need a lot of time off work because of your health condition
Indirect Discrimination
- Indirect discrimination is when a company/organisation/employer has a specific policy and/or working procedure in place that is more favourable to employees who are not disabled than to people with a disability. Unless an employer can show “good reason” for having a policy in place and that it is proportionate, it would be deemed unlawful and therefore indirect disability discrimination would apply.
- An example being if a job is advertised as being offered to applicants who hold a driving licence which would put some people with disabilities at a disadvantage because they may not have a driving licence due to suffering from epilepsy. However, if the advert happens to be for the position of “bus driver”, the job requirement would be deemed justified. Should the position be for a “school teacher”, the need for a driving licence would be much harder to justify
A failure to set in place reasonable adjustments
- The Equality Act stipulates that all organisations, companies and employers have a duty to ensure that people with disabilities have access to jobs, education and other services in the same way as people who are not disabled. This is referred to in law as a “duty to make reasonable adjustments”.
- If you are disabled you can be subjected to disability discrimination in the workplace should an employer, company or organisation not apply reasonable adjustments which is referred to in law as a “failure to make reasonable adjustments. An example being if your disability involves a mobility impairment and you need a parking space that is close to your office. Your employer, however, chooses to give this type of parking space to senior managers and refuses to offer you a designated parking space.
- With this said, what is considered “reasonable” would depend on a several factors which includes what resources are available that would allow an employer, company or organisation to make an adjustment. Should there be several parking spaces available, it would be deemed “reasonable” for an employer to give you space that is close to the business entrance
Discrimination that arises from disability
- You are also protected under the Equality Act 2010 from what is referred to as discrimination that arises from your disability. Should your disability mean you need an assistance dog or you need time off for medical treatment, you would be protected under the law from being discriminated against. However, this would not apply unless the person was aware of your disability or they should have been aware.
- An example being if a privately run nursery refuses to give a place to a little boy due to the fact that he is not toilet trained even though his parents made the nursery aware that their son suffered from Hirschsprung’s Disease beforehand. This would be referred to in law as discrimination that arises from the young boy’s disability. Another example would be if you suffer from cancer and you are not offered a bonus because you took time off work to undergo necessary treatment
- It would be deemed unlawful unless an employer, organisation, company could show “good reason” for this type of treatment and that it is “proportionate” which is referred to in law as objective justification.
- An example being should your eyesight have deteriorated and you are unable to carry out the same level of work as a colleague who is not disabled. Your employer seeks to fire you having ruled out the possibility of alternative work being offered to you. Your employer must show that they have good reason and that their decision was proportionate
Harassment
- Harassment is when you are treated badly by a work colleague or other person because of your disability which results in you feeling degraded, humiliated or offended. An example being if as a disabled woman, you are called names or you are regularly sworn at by work colleagues
- The law clearly states that harassment in the workplace is never “justified”. With this said, should an employer, company or organisation show that they did every thing they could to prevent this type of behaviour from occurring, a claim would not be upheld. However, it is worth noting that you would still be able to file a claim against the person who harassed you in the workplace
Victimisation
- Victimisation in the workplace is when as a person with a disability files a complaint about being discriminated against, treated unfairly or badly in the workplace. The same applies if you are someone who supports a disabled person who lodged the complaint. An example being if as an employee who files a complaint about disability discrimination, your employer threatens you with the sack if you do not withdraw your complaint against them
- Another example being if your employer threatens another member with the sack because they supported your disability discrimination claim against them
With this said, it is lawful for you to be treated more favourably than an employee who is not disabled should you be disabled.
It may also be lawful to treat another disabled person more favourably than another employee with a disability. An example being should a specific disability be deemed essential for the job you do which is referred to an “occupational requirement”. If you work for an organisation that supports deaf people, you may be required to provide counselling to people who use British Sign Language and as such be a deaf BSL user yourself.
How Does the Equality Act Protect You?
The Equality Act also protects you from the following:
- Being asked specific health questions that are intended to “screen out” applicants with disabilities. An employer can not ask you health related questions prior to offering you a job. There are exceptions which includes when the information is a job requirement or a necessary part of the application process. An example being if you have to fill out an application form which asks you to reveal whether you take any medication. An employer must provide proof that there is “good reason” for asking the question and if they cannot, the question must not be asked
Should I File a Disability Discrimination Claim Against My Employer?
Before filing a disability discrimination claim against your employer, you should attempt to solve the problem with them first. This can be done in an informal manner by lodging an informal complaint whether in writing or in a meeting. Should this prove ineffective, there are other routes you can take having first collected the following:
- As much evidence as you can as quickly as possible and to keep all messages that you sent to an employer relating to the problem of being subjected to disability discrimination in the workplace
- Write down details of the instances where you felt you were being discriminated against because of your disability
The routes you can take if you feel you have been subjected to disability discrimination at work are as follows:
- Raise a grievance against your employer – this is a formal complaint
- Try to negotiate an agreement with your employer which is known as “settling”
- Try mediation by contacting an independent professional mediator who would try to help you reach an agreement with your employer which could avoid going to court
- If mediation does not work, you should file legal action against your employment through an employment tribunal – bearing in mind that you must have attempted all of the above for your case to be heard by an employment tribunal
- Seek the help of a solicitor who specialises in disability discrimination claims against employers
Should your employer make your working life difficult and you feel you have to resign from your job because of their unfair behaviour towards you, it is worth noting that you could be entitled to claim constructive dismissal. As such, you should discuss things with a lawyer who would tell you on how best to proceed.
It is also worth noting that if you choose to take legal action out against your employer for disability discrimination and they treat you unfairly, your employer would be acting unlawfully. In law, their actions would be considered as being “victimisation”. The Equality Act protects you from being victimised and as such your employer’s actions could be added to your claim.
What is the Time Limit to Filing a Disability Discrimination Claim Against an Employer?
Before taking legal action against an employer you would need to contact Acas and enter into a procedure known as “early conciliation” which must be done within the strict 3 month less 1 day time limit. The time limit starts from when you were discriminated against in the workplace. An example being as follows:
- If you were discriminated against in the workplace because of a disability and the event occurred on the 14th of July, you must file your formal complaint by the 13th October
Should the deadline fall at a weekend or a bank holiday, the best course of action is to start your legal action on the last working day before the strict deadline ends.
The date of the discrimination could be determined as follows:
- When your employer made a decision to not promote you or turned down your request for flexible hours
- When a work colleague or other person discriminated against you in the workplace because of your disability
Should you have requested “reasonable adjustments” be made, it can make it more challenging to determine when the event occurred, but you can find out more about time limits for reasonable adjustments by following the link at the bottom of the page.
What to do If an Employer Asks You to Resign Because You Filed a Disability Discrimination Claim
If your employer asks you to resign because you seek compensation and have filed a disability discrimination claim against them, you should seek legal advice at the earliest opportunity. The reason being there is a very strict time limit associated with all discrimination and unfair dismissal claims which is 3 months less 1 day from the time an incident occurred. You must also follow the correct procedure which involves making either an informal or formal complaint about disability discrimination at work to your employer.
You should keep note of all your expenses and loss of earnings. You should also keep all receipts for expenses you incurred through looking for another job. This includes all your travel costs to interviews.
How to Make an Informal or Formal Complaint About Disability Discrimination in the Workplace
If you feel that you have been discriminated against in the workplace because of a disability, the best course of action is to lodge an informal complaint to your employer first before taking any further action. You can either approach your employer directly or if here is an HR department, you can file an informal complaint with them. If discussing your concerns with your employer makes you feel uncomfortable, you can choose to lodge a formal complaint to them in writing which is referred to as “raising a grievance.
It is worth noting that there may be a deadline to abide by when raising a grievance which should be written into your employment contract or handbook. Alternatively, you could ask your employer for the information. Other things you can request that your employer does includes the following:
- To offer you an apology
- To ensure that the disability discrimination stops
- To compensate you for the harm and damage you sustained because you were discriminated against at work because of your disability
- To raise awareness and to change any policies that may be in place
- To review a decision whether they sacked you or refused a request for reasonable adjustments to be made in the workplace
- To offer you a reference should you have quit your job due to the disability discrimination you experienced in the workplace
Should you be worried about the deadline associated with filing an informal or formal complaint with your employer, you have the option to begin a tribunal process while waiting for a response to your grievance.
How to Attempt a Settlement to Disability Discrimination in the Workplace
Before taking your disability discrimination claim to a tribunal, you should always try to negotiate with your employer first and it is important to note that you can continue negotiating with an employer with an end goal being to come to a compromise even if you file a claim against them.
How to Attempt Mediation Before Filing a Disability Claim Against an Employer
A mediator is an independent fully trained professional who remain neutral when attempting to reach a compromise with your employer. It is worth noting that an employer must agree to mediation and that they may need to pay the costs of having a mediator attempt to resolve the issue thus avoiding any legal action.
Taking Your Disability Discrimination Claim to a Tribunal
Tribunals are less formal than court hearings, but you can only file your case in a tribunal after you have tried to resolve the problem in other ways and you must have gone through the Acas process of early conciliation. You must be able to provide as much evidence as you can that you attempted to solve the problem without success. Another thing to bear in mind, is that a tribunal may not come to a decision for anything up to 6 months and that your hearing may last a few days or it can go on for weeks.
It is also worth noting that you can only be awarded specific things when you take your claim to a tribunal. These are as follows:
- Rule that an employer pays compensation to you
- Recommend that your employer gives you a reference or change a policy that is in place – bearing in mind that an employer cannot be forced to do either by a tribunal
- Recommend that an employer state they discriminate against an employee and to explain to them how the law had been broken
If you have to take your disability discrimination claim to an employment tribunal, it is best to seek the advice of an experienced personal injury solicitor because if you don’t have a strong enough case, your claim may not be upheld which in short, means that you may not receive the disability discrimination compensation you sought.
Informative Links
If you would like to know more information on the process of mediation, please follow the link below:
More about the mediation process in a disability discrimination at work claim
If you would like to know more about “reasonable adjustments”, please click on the link below:
More about reasonable adjustments for the disabled in the workplace