What qualifies as disability? And what legal protection do people who experience discrimination at work have under the Equality Act?
Though many employers are taking steps to improve workplace diversity and increase awareness around mental health, disabled people continue to face discrimination at work.
Over half of disabled people have been bullied or harassed in the workplace because of their impairment, whilst 21% try to hide their disability from their employers, according to new research. However, cuts to legal aid and the introduction of tribunal fees in 2014 has meant a drop in claims, making it an even more challenging climate for disabled people who face unfair treatment.
With the workplace far from equal, it is vital that disabled people – as well as their employers – know their legal rights. Here’s what you need to know:
What amounts to a disability?
Under the Equality Act 2010 (“the Act”), the main definition of disability is a “physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-today activities.”
“Substantial” means something more than minor, but that could fluctuate and change and may not be present all the time. “Long term” means the effect of the impairment has to last, or is likely to last, for at least 12 months. “Day-to-day activities” means everyday activities for most people, such as using a computer, writing, sitting down, standing up, driving and lifting.
There are some conditions such as cancer, and multiple sclerosis, where you are automatically treated as disabled and entitled to protection as soon as the diagnosis is given, regardless of how the disability manifests itself.
Who is protected?
The Act applies to all employees, job applicants, trainees, contract workers, office holders (including company directors and managers), those who are on secondment and the self-employed. All areas of employment are covered, including recruitment, selection and promotion, training, pay and the provision of benefits, retirement, dismissal, redundancy and occupational pensions.
What legal protection do you have?
If you are found to have a disability, this amounts to a “protected characteristic” under the Equality Act. This means that you must not be discriminated against because you have a disability or someone thinks you have a particular disability (regardless of whether you do have that disability), known as “discrimination by perception”. You must also not be discriminated against if you are connected to someone with a disability, such as a child or parent. This is known as “discrimination by association”.
What forms can this discrimination take?
The several ways that your employer can be found to have discriminated against you because of your disability.
The first is direct discrimination. This is where you have been treated less favourably because of your disability than someone without a disability would be treated in the same circumstances.
Indirect discrimination when there is a policy, procedure, rule or requirement that applies to everyone, but has a worse impact on you because of your disability, compared to those who don’t have a disability. Indirect disability discrimination can, though, be permitted if your employer is able to show that there is a good reason for such a policy. This is known as “objective justification”, but is often difficult for employers to prove.
Failure to make reasonable adjustments is another form of discrimination. There is a duty on your employer to make reasonable adjustments to help you overcome disadvantage resulting from an impairment. For example, your employer should consider providing nearby parking facilities if available, suitable seating, and flexible working. In other cases, providing a mentor, a piece of equipment, and allowing for regular breaks may be appropriate.
The final form is discrimination arising from a disability. For example, if you are treated unfavourably because of disability related ill-health absence or because of slower typing speeds.
What can you do if you have been discriminated against?
If you cannot resolve the situation informally with your line manager, then it is best to first lodge a formal grievance which is usually with HR. If the matter remains unresolved, you can make a claim in the employment tribunal. You need to commence the process no later than three months less one day from the last act of discrimination – which may be a one off or continuing act. Many employees consider resigning at the same time due to a breach of trust and confidence and bring a claim for “constructive dismissal”.
If you are dismissed, you can lodge a claim for unfair dismissal and/or discrimination in the Employment Tribunal. It is now mandatory to go through ACAS’s early conciliation scheme before you can submit any claim to the tribunal.
If conciliation fails and you need to proceed to tribunal, there is an issue fee of £250 and a hearing fee of £950 which you will need to pay, although you may be entitled to a fee remission.
There is no ceiling on tribunal awards in disability discrimination cases – unlike in other kinds of unfair dismissal cases. Awards can therefore be very costly for employers who get it wrong.
Written By: Philip Landau