Disability discrimination

Your employer cannot discriminate you if you are a “disabled” person – it does not matter whether you work for an agency or directly for the company.

Am I disabled?

First of all, in employment law “disability” is a legal concept, not a medical one. It is therefore possible that your company’s occupational health specialist is of the opinion that you are not disabled; however an Employment Tribunal Judge would disagree.

Also, disability does not mean that you have to be using a wheelchair. In theory, almost every illness can be a disability, with a few exceptions. There are cases where gallstones and depression where successfully argued to be a disability. So, before you decide not to start a case for discrimination because you don’t think you are disabled, contact us, and we will help you.

Disability

Disability is a physical or mental condition which:

• Is fairly serious
• Has a long-term negative impact on your everyday life.

Certain conditions are automatically classified as disability, such as as cancer, HIV and multiple sclerosis. There are also a few conditions, which would never be held to be a disability, such alcohol addiction or hay fever.

Disability Discrimination

If you are a disabled person, your employer (or manager, supervisor etc) cannot:

• Discriminate you directly
• Discriminate you indirectly
• Discriminate you because of something arising from the disability
• Harass you
• Victimise you
• Fail to comply with his duty to make reasonable adjustments at work for you

Direct disability discrimination

This happens if a person (or for example the employer in general terms, or a manager etc) treats you worse than another person because of your disability, or because of a disability of a person closely associated with you, such as partner or child.

The duty to make reasonable adjustments

If you are disabled and you require certain adjustments to your position, whether physical or administrative, your employer must implement them as long as the adjustments are reasonable and your employer knows (or should know in the circumstances) that you are disabled and need them.

What is reasonable depends on the situation and will be different in each case. This includes:

• Physical features of the workplace
• Auxiliary aids, which for example means equipment
• Company practice and rules

Here are only a few examples of adjustments – there are many more:

• Providing you with a desk closer to the entrance
• Placing you in an office on the ground floor
• Allocating some of your duties to another person
• Offering you another position
• Changing your working hours
• Providing you with a chair
• Allowing you a higher number of sickness absences

Discrimination because of something arising from a disability

This applies where you are treated badly not because you are disabled but because of something which relates to your disability, for example:

Because of his disability, Tom missed 3 months of work. As a result, he was dismissed.

He was not dismissed because he was disabled – he was dismissed because of his absences caused by the disability.

Harassment

This takes place where somebody subjects you to conduct which:

• you do not want,
• it is related to your disability,
• it has the purpose or effect of violating your dignity, or
• it has the purpose or effect of creating a hostile or humiliating environment for you.

Victimisation

This is a tricky one. If you assert your rights in connection with discrimination or harassment (in court of unofficially,) or if somebody agrees to help you in such case for example by giving evidence as a witness, and you or this person is treated badly as a result – this is victimisation.

For example:

Liz submitted an official grievance at work against Anna, her manager, for disability discrimination. Tony agreed to act as Liz’s witness in the proceedings and as a result Anna sent him home without pay. Tony has been victimised.

Indirect disability discrimination

This covers situations where all workers are treated the same, but some aspect of this treatment affects one group worse because of their disability.

For example:
An employer decided that all his workers must work on the 5^th floor in a building without a lift. This would put disabled workers in a worse position than non-disabled ones.

Defence to indirect disability  discrimination

On the other hand, if the person discriminating you can show that the provision/decision/practice is proportionate to achieve a real aim, he has a potential defence.

For example:

An employer decided that all his workers must hold a full driving licence. This would put disabled workers who cannot drive for medical reasons in a worse position. However, if this employer specifically employs lorry drivers, he can possibly show that the requirement of a full driving licence is essential to do the job.

Protection

The law not only protects existing workers but also covers job advertisements, the recruitment process as well as after employment.

Time limit

Remember, that you only have 3 months minus 1 day from the last act of discrimination to commence the legal process against the discriminator.