SENIOR EXECUTIVE SERVICES
What is disability discrimination?
Disability discrimination at work is where someone is put at a disadvantage for a reason related to disability.
Under the Equality Act 2010 (which replaced, amongst other pieces of legislation, the Disability Discrimination Act 1995) there are six types of disability discrimination claims that can be brought in the employment tribunal:
- Direct discrimination is where you are treated less favourably because of the disability itself;
- Indirect discrimination occurs where your employer has, on the face of it, a neutral provision, criterion or practice (PCP) that it applies to everyone but that puts people with a particular disability at a disadvantage when compared with people who do not have that disability, you have that disability and have suffered that disadvantage, and that PCP cannot be objectively justified;
- Discrimination arising from disability occurs where you are treated unfavourably because of something arising in consequence of your disability (like poor performance or sickness absence) and your employer cannot show that it had a good business reason for the unfavourable treatment and that it acted proportionately;
- A failure to make reasonable adjustments claim arises where your disability means you are at a substantial disadvantage because of workplace policies or practices, physical features of the workplace and/or the lack of an auxiliary aid and your employer does not take reasonable steps to avoid that disadvantage;
- Disability discrimination harassment is where you are subjected to unwanted conduct related to disability (yours or that of someone else) and that conduct has the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for you;
- Victimisation is where you are subjected to unfavourable treatment because you have done something in connection to the Equality Act (e.g. making a complaint of discrimination).
Do I have a disability?
Not all health conditions qualify as disabilities.
To determine whether you have a disability for the purposes of the Equality Act you should ask these four questions:
- Do you have a physical or mental impairment?
- Does that impairment have an adverse effect on your ability to carry out normal day to day activities?
- Is that effect substantial (meaning more than minor or trivial)?
- Is that effect long term (meaning it had lasted or is likely to last for 12 months or for the rest of your life)?
Some conditions automatically amount to a disability from the point of diagnosis. These conditions are:
- blindness, severe sight impairment and partial sightedness (not including colour blindness);
- severe disfigurements (e.g. scars, birthmarks, limb or postural deformation or diseases of the skin), with the exception of unremoved tattoos and piercings;
- HIV; and
- multiple sclerosis.
This means if you have been diagnosed with one of these conditions, you do not need to meet the requirements of the definition of disability mentioned above.
Do mental health conditions count as a disability?
They can, provided they meet the definition above. It is not vital to get a medical diagnosis of a mental health condition in order to meet the definition of disability, although in practice it will often be easier to prove that you have a disability if you have a medical diagnosis. We are experts in mental health discrimination cases and have brought discrimination claims for many individuals suffering with mental health conditions, including stress, anxiety, depression, ADHD and Bipolar disorder.
What if I am getting medication or treatment? Am I still disabled?
When considering whether your condition meets the definition of a disability you should ignore any measures you are taking to treat or correct your impairment, such as medication or the use of a prosthesis, and instead assess the adverse effect of your condition as if you were not taking those measures.
I had a disability in the past, am I still protected?
The law protects people who have had disabilities in the past. For example, if you previously had a mental health problem that met the definition of disability while you were suffering from it but have since recovered and are no longer disabled, then you are still protected from being discriminated against because you have had a disability in the past.
If you have a recurring condition you may be considered currently disabled even if you are not symptomatic right now. BDBF is experienced in bringing claims involving such condition and was recently in the Court of Appeal fighting to clarify the law in relation to recurring conditions.
Does my disability need to have been caused by work for me to be protected?
No, it is not necessary to consider how an impairment is caused.
Should I tell my employer about my disability?
If your employer does not know about your disability, then you will generally not be protected from disability discrimination and your employer will not be obliged to make reasonable adjustments for you. However, given the sensitivities of discussing personal information with your employer, you may benefit from taking specialist advice before deciding how and when to raise this with your employer.
Do I have to fill in a pre-employment health questionnaire?
Save in certain prescribed circumstances, it is unlawful for a prospective employer to ask you questions about your health or disability unless they have made you a job offer. This includes questions about sickness absence.
It is lawful to make a job offer conditional on you undergoing health checks provided you are not disadvantaged as a result of your answers to those questions.
My employer wants me to attend an appointment with Occupational Health. Do I have to attend?
You have a duty to follow reasonable instructions given to you by your employer. In certain circumstances this can include attending an appointment with Occupational Health, for example if the purpose is to help the employer determine what adjustments should be made for you. If you are not sure about attending an appointment, we suggest you seek specialist advice.
Am I entitled to time off work to attend medical appointments?
You do not have a general right to take time off to attend a medical appointment unless you are not well enough to work or are pregnant. However, your employer may have a policy allowing you to take paid or unpaid time off to attend medical appointments during the working day. You should check your contract and your employer’s handbook or policies.
If you have a disability and your appointments relate to that disability, then it could be a reasonable adjustment to be allowed to take time off to attend them.
What kinds of adjustments should my employer make?
There is no exhaustive list of adjustments and what is reasonable will depend on the circumstances, including your disability and its effect on you, your role and the nature of your business. What is reasonable for one person will not necessarily be reasonable for the other, even if they have the same or a similar disability.
Some of adjustments we often help clients to achieve are:
- providing a standing desk;
- allowing an employee to work from home for part of the week;
- altering working hours so an employee can for example, start later if they find it difficult to get up in the morning or travel during rush hour;
- discounting absence due to a disability from a sickness absence record which affects pay and promotion or selection for redundancy;
- assigning a buddy or mentor;
- adjusting performance targets and performance outcomes during appraisals to take account of the impact of a condition;
- reduce or remove disciplinary sanctions to take account of the impact of a condition on conduct; and
- monitoring disciplinary, grievance and performance procedures, for example conducting the process in writing or allowing the employee to be accompanied to meetings by a friend or family member.
What should I do if my employer refuses to make adjustments?
In the first instance it may be sensible to speak to your employer about the effect your disability is having on your ability to do your job and why you think that this adjustment would help reduce the adverse impact. It may be helpful to seek support from Occupational Health or your medical advisers about the kinds of adjustments that could help you.
If your employer still refuses, you may need to formalise your concerns through a written grievance under your employer’s grievance procedure or the ACAS Code of Practice on Disciplinary and Grievance Procedures. We can help you with formulating your concerns and we often draft grievance letters on behalf of our clients.
What should I do if think I’ve been discriminated against because of my health?
You may want to raise your concerns informally initially about the treatment you have suffered directly with your employer. This could be done by speaking to your line manager, HR or someone else you trust. If this does not work or does not seem appropriate, you may need to submit a written grievance under your employer’s grievance procedure or the ACAS Code of Practice on Disciplinary and Grievance Procedures. This gives your employer an opportunity to resolve matters internally.
If your employer does not resolve your grievance satisfactorily, you may be able to bring an employment tribunal discrimination claim against both your employer and the employees who have caused you harm. Failure to follow the grievance procedure may mean that any compensation you are awarded is reduced.
Important: time limits for bringing disability discrimination claims are strict and you should not delay submitting a claim because you are going through an internal process.
What is Early Conciliation and when do I need to do it?
Acas Early Conciliation is a confidential process, lasting up to six weeks, which gives you the opportunity to try and resolve your discrimination claim with your employer without the need to issue Employment Tribunal proceedings.
We recommend you obtain early legal advice on time limits for commencing ACAS Early Conciliation.
How do I bring a claim for disability discrimination?
An application to ACAS to conciliate a disability discrimination case must be brought within three months less one day of the date of your dismissal or the act of discrimination/failure to make a reasonable adjustment. There are very limited exceptions to this, and extensions of time are rarely granted so it is important to act promptly and take specialist advice if you need to.
You must obtain an Early Conciliation Certificate before you can lodge a disability discrimination claim at an Employment Tribunal. The Early Conciliation Certificate will be issued automatically at the end of the six-week ACAS Early Conciliation period if you and your employer are unable to reach a settlement of your claim. We can assist you with identifying the time limit for bringing your claim once you have the certificate and can prepare your claim. We recommend obtaining expert legal support with bringing a claim.
How much is disability discrimination compensation?
Disability discrimination compensation awards are uncapped. This means that you are entitled to claim unlimited compensation for the losses you have suffered as a consequence of the discrimination. Your financial losses may include loss of salary, bonus, shares, options, benefits and pension. You will be under a duty to mitigate your financial losses. This means that if you have been dismissed you must take reasonable steps to find a new job.
The Tribunal may also make an injury to feelings award to recognise that you have been a victim of discrimination. It can also make an award for injury to health if your health has suffered as a result of discrimination.
If your disability is caused by treatment you experienced at work, then you may also be able to bring a claim for personal injury in the civil courts. We are experienced in bringing workplace stress cases.
How can BDBF assist me?
We are a niche employment law firm focused on employment law. Our team are specialist disability discrimination solicitors. Our clients are from sectors such as finance, insurance, law, healthcare and technology. We regularly advise clients on all forms of disability discrimination cases and our solicitors know how to win a disability discrimination employment tribunal case, if litigation is appropriate in your case. We also have extensive experience of helping clients with physical and mental health conditions secure early and favourable settlements, assisting clients to negotiate reasonable adjustments, or who need advice on permanent health insurance.
By instructing us, you can be confident that we have the knowledge, experience, and insight to protect your best interests. We have extensive experiencing of advising clients with a variety of physical and mental conditions and understand the sensitivity required. We understand how stressful it can be to bring discrimination claims of any nature, but particularly so if you have a disability and we will work with you to achieve the best possible result.