Bromley Solicitors

DISABILITY DISCRIMINATION

• The Equality Act 2010 protects the rights of individuals who are disabled and prevent discrimination against people who have an association with a disabled person. The legislation deals with recruitment, selection, and promotion and applies to self-employed and employed workers. It also applies to dismissal, including constructive dismissal.

• The Act states that people must not be discriminated against or harassed because they are wrongly perceived to be disabled. It also covers post-termination discrimination and states that it is unlawful to discriminate against a disabled person where it is closely connected to his employment.

• Under the Act, a person is disabled if ‘they have a physical or mental impairment’ and ‘the impairment has a substantial and long-term adverse effect on their ability to perform normal day-to-day activities’.  Conditions such as dependency on alcohol, tobacco and drugs are not under the protection of the Act.

Justification

• An employer can justify the indirect disability discrimination on objective grounds.  The treatment must be ‘a proportionate means of achieving a legitimate aim’.

• An employer must make reasonable adjustments in order to be able to justify the treatment.

• Prospective employee cannot be asked about their health before offering him work

• This includes pre-employment health questions, either in written or oral form

• However, it is allowed to ask health questions which are directly related to the job.

• If unlawful questions are being asked and the prospective employee does not get the job, the burden of proof is on the employer to convince the court that there was discrimination.

Remedies

• The time limit for making a claim is three month of the date of the discrimination

The tribunal can:

1.       Specify the rights of the disabled employee

2.       Make the employer to compensate the disabled employee ; or

3.       Suggest what could benefit the employer’s wider workforce in order to prevent similar discrimination

How has the Equality Act 2010 impacted on disability discrimination law?

The Equality Act 2010 was passed to consolidate a wide variety of discrimination laws as well as make some stand alone substantive changes to the law. The Disability Discrimination Act and other relevant pieces of legislation are now included in the Equality Act 2010.

How is disability defined by the law?

In the Equality Act 2010,  “a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse affect on their ability to carry out normal day-to-day activities.”  In the original Disability Discrimination Act, day-to-day activities were defined according to a pre-determined list of things.  However, with the passage of the Equality Act 2010, the definition of normal day-to-day activities is left open to wider interpretation.  The impairment must last for longer than 12 months or be a terminal illness.  Irrespective of the impact the illness has on a person’s life, persons who are diagnosed with cancer, MS, HIV or AIDS are covered from the date of their diagnosis.

What type of discrimination is outlawed under the Equality Act 2010?

• Direct discrimination – treating one person or a group of persons less favourably than others on the grounds of disabilities.

• Indirect discrimination – conditions or circumstances which are less favourable to persons with a disability, provided there is no rational or legitimate aim or explanation.

• Discrimination arising from a disability – this was a special class of discrimination introduced in the Equality Act.  It prohibits behaviour which treats someone less favourably than other because of something connected to their disability.

• Associative discrimination – prohibits behaviour which discriminates against someone who associates with someone with a disability.

• Perceptive discrimination – treating someone less favourably because they are perceived to have a disability.

• Victimisation – treating a person with a disability less favourably as a result of them raising a concern or claim connected to discrimination or where it has been believed a complaint has been raised, when it has in fact not.

• Harassment – ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’.

I am being harassed by a customer because of my disability and my boss refuses to do anything about it.  Do I have a claim under the Equality Act 2010?

Your boss will be liable for the harassment of persons with disabilities by third parties, including customers, where your boss or the employer has not made any reasonable efforts to prevent the harassment happening again.  The harassment must have happened on two or more occasions for a breach of the Act to occur.

I have requested that my employer makes certain changes in the work place, but nothing has materialised.  What does the law say about this?

Your employer is required to make ‘reasonable adjustments’ to the workplace in order to allow you to carry out your work.  ‘Reasonable adjustments’ will depend on your disability.  For blind persons, for example, the employer may be required to produce reading materials in Braille.  The employer may also be required to make adjustments to the nature of your work, the times at which you work and allow for flexible working.

Click here for further assistance with disability law.