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Disability discrimination - legal briefing

A brief legal guide to disability discrimination, including details of where you can go for further information or support

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Disability discrimination in employment

Overview   

England and Wales have had laws against discrimination since the 1960s. The Race Relations Acts of 1965, 1968 and 1976 outlawed race discrimination, the Equal Pay Act 1970 and the Sex Discrimination Act 1975 outlawed gender discrimination and the Disability Discrimination Act 1995 outlawed disability discrimination.

In 2010 all anti-discrimination laws were brought together under one Act: the Equality Act 2010 (EqA). The EqA has applied in England and Wales since 1 October 2010. Discriminatory acts that took place on or after 1 October 2010, or that started before 1 October 2010 and continued after that date, will be covered by the EqA. Discrimination that took place before 1 October 2010 is covered by the Disability Discrimination Act 1995. For information about discrimination under the Disability Discrimination Act 1995, please email us.

Under the EqA it is unlawful to discriminate against someone who has a disability. The EqA provides protection against discrimination that happens at work, in the provision of services, public functions and premises, and in education. The EqA also deals with discrimination in associations. It does so by making discrimination unlawful in a number of ways, and by providing legal remedies to individuals who experience discrimination.

Protected characteristics

The EqA makes it unlawful to discriminate against someone on the basis of any ‘protected characteristic’ set out in the Act. The protected characteristics are:

  • Disability
  • Age
  • Gender reassignment
  • Marriage and civil partnership
  • Race
  • Religion or belief
  • Gender
  • Sexual orientation
  • Pregnancy and maternity

What is a disability under the EqA?

Section 6 of the EqA provides a definition of disability. In order for someone to show that there has been disability discrimination, they first have to show that they have a disability. Mind’s 'Proving Disability Checklist' can help with this process. For a copy, please email legalunit@mind.org.uk.

Under the EqA a person will be considered to have a disability if they:

  • Have an impairment that is either physical or mental; and
  • The impairment has substantial adverse and long-term effects on their ability to carry out normal day-to-day activities.

Impairment: It is not possible to give a complete list of impairments recognised under the EqA but they include developmental impairments such as dyslexia or autism, learning difficulties and mental health conditions such as depression, schizophrenia and bi-polar affective disorder. The EqA does not require someone’s mental health problem to be a clinically recognised mental illness in order for it to count as an impairment.

The first step is to show that someone has an impairment. This is normally quite straightforward. The second step is to show what effect the impairment has on their ability to carry out normal day-to-day activities.

Substantial adverse effect: A substantial adverse effect is something that is more than minor or trivial. When deciding whether an impairment has a substantial adverse effect on someone’s ability to carry out day-to-day tasks the following should be taken into consideration (this is not an exhaustive list):

  • The time it takes them to complete a task, compared with the time it would take someone without the impairment
  • The way they would complete task, compared with how someone without the impairment would complete the task
  • The cumulative effect of the impairment on their ability to carry out everyday tasks.

Under the EqA a person only needs to show that their impairment gives rise to adverse effects, not that those adverse effects impact on any particular capacity, such as a person’s memory or their ability to concentrate.

If someone is receiving treatment or medication for their disability that helps them carry out their daily activities, they may still be a person with a disability protected by the EqA. This will depend on whether their ability to carry out day-to-day tasks would be affected in a significant and adverse way if they stopped taking their medication or having treatment. If this is in doubt at any stage it might help to get a medical opinion on what the consequences of stopping treatment or medication would be on someone’s day-to-day activities.

Long-term: A long-term impairment is one:

  • Which has lasted at least 12 months; or
  • Which is likely to last at least 12 months; or
  • Which is likely to recur.

If someone has a mental health problem that fluctuates over time they may still be regarded as having a long-term impairment. If someone has episodes of mental illness that have a serious adverse affect on their ability to carry out daily activities and those episodes could well occur again, their mental illness is considered long-term for the purposes of the EqA.

The Office of Disability Issues has published guidance on what may and may not be considered a disability under the EqA. Under section 6(5) of the EqA, courts and tribunals must take account of this guidance when they are deciding whether or not someone has a disability.

The Mind Legal Unit's 'Proving Disability Checklist' can help with proving whether someone has a disability. To request a copy, email legalunit@mind.org.uk.

Types of unlawful discrimination under the Equality Act

There are many situations in which someone may feel discriminated against because of their disability. In order to reflect this the EqA sets out different types of discrimination, referred to as ‘prohibited conduct’. Chapter 1 of Part 5 of the EqA sets out the duty on employers, service providers and others not to engage in prohibited conduct.

The EqA applies to all aspects of employment including recruitment, promotion, dismissal and redundancy. This means that employers must not discriminate in the arrangements made for deciding who should be offered a job, the terms on which the job is offered, access to opportunities at work, including promotion, transfer or training, and procedures for dismissal or redundancy.

If an employer discriminates against someone in any of the ways described below, they may face a legal claim from the person who has been discriminated against. The types of discrimination set out below are the ones that apply to disability discrimination (there are some variations for the other protected characteristics. It should be remembered that unfair treatment is not in itself discriminatory.  For unfair treatment to amount to discrimination, it must be related to a person’s disability in one of the ways described below.

Direct discrimination

Direct discrimination is where a person is treated worse than someone else because of their disability (section 13 EqA). In order to show that there has been discrimination, a person must show that there is a link between their disability and the way they were treated. For example, if a person is told that she will not be promoted because she has schizophrenia but that her colleague will be because she does not have any mental health problems, this would be direct discrimination. The person with schizophrenia has been treated less favourably than her colleague, and the reason for this is her disability.

In some cases there may not be any evidence that an employer has actually treated anyone else better than the person with a disability. In such cases the disabled person can still challenge the way that they have been treated by gathering evidence that shows how their employer would have acted towards a non-disabled person in that type of situation.

A person may be unlawfully discriminated against because of a disability even if they do not have a disability themselves. This might arise in two situations:

  1. A person may be discriminated against because of their connection or association with a disabled person. For example, if the non-disabled parent of a disabled child is treated less favourably because they have a disabled child
  2. A person may be discriminated against because there is a perception or belief that they are disabled, even if they are not. For example, if someone is assumed to have a mental health problem and is treated adversely as a result, this may amount to discrimination even if the person does not have a mental health problem.

Direct discrimination is difficult to prove. However, where there is evidence that direct discrimination has taken place, the discriminator will be held responsible for their unlawful action and will have no opportunity to justify why it acted that way.

A non-disabled person who is treated less favourably than a disabled person cannot bring a claim under the EqA. This recognises that in some circumstances disabled people may need to be treated in a more advantageous way than non-disabled people. It is never unlawful for a disabled employee or job applicant or applicant to be treated more favourably than a non-disabled employee or job applicant.

Discrimination arising from disability

Section 15 of the EqA prohibits the unfavourable treatment of a disabled person where the reason for the unfavourable treatment is not the disability itself, but something that arises in consequence of the disability. An example of this is where someone is given a disciplinary warning because they have to take sickness related absences. The person has been absent because of their disability and so the employer’s decision to treat this as a disciplinary matter rather than adapt the absence procedures to take account of the employee’s disability may be discriminatory. Unlike direct discrimination, in this case there is no need for the disabled person to compare themselves with anyone else; they just need to show that they were treated unfavourably and that this treatment was linked to their disability.

If someone shows that they have been discriminated against for reasons arising out of their disability the employer will have an opportunity to justify the discrimination. Discrimination arising from disability can be justified if it is a proportionate way of achieving a legitimate aim. This means that an employer can justify this type of discrimination by showing that there was a good reason for it and that the action taken was reasonable. For example, an employer may be able to justify managing long sickness absences if it would be unworkable for the company to have a fully paid member of staff absent for long periods. However, the company must also consider making reasonable adjustments (see below).

An employer will not be found to have discriminated against a disabled person if they did not know about that person’s disability. However, if an employer had information that indicated that an employee had a disability, they will be treated as having known about that person’s disability at least from the time they had this information.

Understandably many people are concerned that disclosing a mental health condition will lead to discriminatory treatment. However, if a person does have a disability then they need to tell their employer about it in order to benefit from the protection of the EqA. This should serve as a reminder to an employer to treat the disabled employee fairly and appropriately and will put them on notice that failing to do so may be unlawful discrimination. For more on disclosing mental health problems to an employer, see How to be mentally healthy at work.

Indirect discrimination

Under section 19 of the EqA a disabled person can argue that a practice or arrangement which appears to be neutral and non-discriminatory does in fact put them at a particular disadvantage compared to people who are not disabled. This is a new type of discrimination that did not exist under the Disability Discrimination Act 1995. Unlike discrimination arising from disability (see above), it does not matter whether an employer knew about an employee’s disability. This means that employers need to think ahead about the impact that their policies, practices and arrangements might have on disabled people.

If it is shown that an indirectly discriminatory practice exists, the employer may be able to justify it if it is a proportionate way of achieving a legitimate aim. This means that an employer can justify this type of discrimination by showing that there was a good reason for it and that the action taken was reasonable.

The duty to make reasonable adjustments

The law recognises that adjustments may need to be made in certain areas to help disabled people overcome barriers not faced by people who do not have disabilities. This duty arises when an employer knows (or should know) that an employee is disabled.

An employer is then expected to take proactive steps to comply with the duty to make reasonable adjustments. If there is uncertainty about whether an employee is disabled, the employer should ask for a medical opinion from a GP or from an occupational health specialist. If it is established that an employee is or is likely to be disabled, the GP or occupational health specialist may be able to identify the disadvantages experienced by the employee in the workplace, and the steps that could be taken to overcome them.

Employees will usually be expected to cooperate with this process but in return they can expect their employer to consider making adjustments to their working arrangements to help them at work.

Where a disabled employee faces substantial disadvantages in the workplace, the employer will need to make changes to the extent that it is reasonable which would help a disabled person to overcome the substantial disadvantage.

The duty to make reasonable adjustments is a positive one and employers are expected to be able to show that they have paid careful attention to meeting it.

An employer should consider all adjustments that may help the disabled person. These may include:

  • Making adjustments to the working area
  • Changing an employee’s working hours
  • Allowing an employee to work from home
  • Allowing an employee to be absent during work hours for rehabilitation, assessment or treatment
  • Providing additional supervision or support
  • Acquiring or modifying equipment
  • Transferring the employee to a different post or changing aspects of their job description
  • Temporarily re-allocating tasks that the employee is finding difficult or stressful
  • Allowing for time out during the working day
  • Providing extra training
  • Appointing a mentor or buddy for the person.

The employee does not need to come up with suggestions, but it may help to do so, and the employer must consider any reasonable adjustments that the employee proposes.

What is reasonable for the employer to do will be judged according to the following factors:

  • The extent to which the adjustment will prevent the problem
  • The extent to which it is practicable for the employer to make the adjustment
  • The size of the employer
  • The financial and other costs of making the adjustment, including disruption to any of the employer’s activities
  • The extent of the employer’s financial and other resources
  • The availability to the employer of financial or other assistance (see below) to make the adjustment.

It is important that an adjustment will help the employee to overcome the disadvantage. If it does not, it may not be considered reasonable by an Employment Tribunal. It is therefore important for a disabled employee to explain what would help and whether particular arrangements are working.

The employer cannot require an employee to contribute to the cost of making the reasonable adjustments, but grants and other funding will often be available to an employer from the Access to Work scheme.

Harassment

Section 26 of the EqA prohibits the harassment of people with disabilities. If an employer’s behaviour amounts to harassment a disabled person will be able to bring a discrimination claim against them.

Harassment is defined by the EqA as acting in a way that violates someone’s dignity or creates an environment that is intimidating, degrading or humiliating. This action must relate to the victim’s disability in order for it to be covered by the EqA. This might involve someone making fun of a disabled person, using abusive or derogatory language, or making light of their disability. Employers are also under a duty to prevent the harassment of their employees by third parties. For example, if a disabled person worked in a shop, their employer would be under a duty to prevent customers from harassing the person.

If harassment in the workplace is linked to someone’s disability, the person will be able to include harassment in a disability discrimination claim.

Victimisation

Under section 27 of the EqA a person can bring a victimisation claim if they have been victimised because of their disability. Victimisation means a person being placed at a disadvantage by their employer because they have made an allegation of discrimination, or supported someone else who has made an allegation of discrimination.

Pre-employment health questions

Lots of people have understandable concerns about the common practice of asking health questions as part of a job application process. Job applicants who have experienced mental health problems can be concerned about how answers to health questions might be interpreted by employers.

Under section 60 of the EqA it is unlawful for an employer to ask health questions in the recruitment process before a job offer is made. Hopefully this will ensure that applications are treated on merit and are unaffected by hidden stereotypes or prejudicial assumptions. If an employer does ask health questions before a job offer is made the applicant cannot bring a legal claim against them. Only the Equality and Human Rights Commission can do this. If an applicant is asked questions about their health or disability during the recruitment process, they can complete a form on the Equality Advisory and Support Service (EASS) website to notify the EHRC.

However, if questions about a disabled applicant’s health have been asked at an interview and the applicant does not get the job, a court or tribunal will look very carefully at the employer’s decision making if the job applicant brings a legal claim. The employer will be required to prove that the decision not to employ the applicant was not linked to their disability. This should make it easier for an unsuccessful job applicant to win a discrimination claim using section 13 or section 15 of the EqA (see above).

There are certain circumstances where it is still permissible for an employer to ask job applicants about their health before a job offer is made. Those circumstances are:

  • Establishing whether the applicant will be able to comply with a requirement to undergo an assessment for the job or establishing whether the employer will be under a duty to make reasonable adjustments for the applicant.
  • Establishing whether the applicant will be able to carry out a function that is intrinsic to the job in question. However, questions that try to assess someone’s ability to do a particular task need to take account of whether reasonable adjustments could be made to the job role that would help the applicant.
  • Monitoring the diversity of the applicants.
  • Establishing whether the applicant has a particular disability if the job requires the presence of that disability.
  • Vetting the applicant for national security purposes.

It is still relevant for an employer to ask health questions after a job offer has been made and so the practice of job offers being conditional on references and health assessments will continue. If a job offer is then withdrawn following a health assessment and the applicant thinks this is because of their disability, they will have strong evidence to show that the employer was unlawfully discriminating. Contact Mind’s Legal Advice Service or seek advice from a solicitor.

Challenging discrimination in the workplace

If a person thinks that they have been discriminated against at work there are a number of options open to them. First, they may try to resolve the problem by talking informally with their colleagues, manager or human resources department. Trade unions may be able to help with this.

Secondly, they may want to raise a formal grievance using the employer’s grievance procedure. Finally, they may want to bring a legal claim in the employment tribunal.

Employees who want to bring a legal claim for discrimination against their employers must tell the Advisory, Conciliation and Arbitration Service (ACAS) first and complete an Early Conciliation notification form. ACAS will then offer the employee and employer a chance to conciliate. ACAS provide an information leaflet for employees.

There is also a useful flowchart to explain the process of conciliation.

Sometimes asking questions before taking action can clear up misunderstandings or make clear exactly where there are disagreements. Acas has produced a helpful guide entitled Asking and responding to questions of discrimination in the workplace. It gives guidance for job applicants and employees who may want to ask their employer written questions about discrimination related to the Equality Act 2010.

It is very important to contact ACAS as soon as possible as there are strict time limits for making a claim to the Employment Tribunal.

The Employment Tribunal

The Employment Tribunal can be contacted here.

Who can bring a discrimination claim?

An employee, apprentice, former employee, contract worker or job applicant who feels that they have been discriminated against by their employer, a colleague or a third party in the course of their employment, can bring a discrimination claim in the Employment Tribunal.

Volunteers are not generally protected from discrimination under the EqA although they might be able to argue that they should be in certain cases, for example if they receive a fee or certain employment benefits. However, recent case law has not been helpful in extending protection to volunteers.

Time limits

An application to the Employment Tribunal must be made within three months less one day of the discrimination that is being complained about. This is particularly important if there is a single discriminatory act on a particular date. In some cases there may be a series of matters or ongoing poor treatment that amount to discrimination, the three month time limit will run from the last of these.

An application to the Employment Tribunal after the three month time limit has passed may occasionally be possible. The person bringing the claim will need to show that there are good reasons for the claim being late, for example, by showing that the effects of their disability prevented the claim from being brought sooner. The Employment Tribunal may allow a late claim to be brought if it thinks it is fair to do so.

Legal aid is no longer available for employment problems but legal aid is available for advice and representation for discrimination problems at work if a person meets the financial critieria and has a good case. Access to legal aid for discrimination problems is through the Civil Legal Advice Services which can be contacted by email or telephone (see contact details).

If someone feels that they may have been discriminated against by their employer they should seek legal advice as soon as possible.

Getting legal advice

A person bringing a discrimination claim may be able to obtain legal advice and/or representation through their trade union or their insurance policy (for example, home contents), which may cover legal expenses. Not all policies will cover employment legal advice but a surprising number do.

Otherwise, free legal advice may be available from one of the following organisations:

  1. ACAS offers free legal advice on employment issues: www.acas.org.uk and 08457 474747.
  2. A Citizen's Advice Bureau that offers emplyment advice. Most towns have a CAB. They will be listed in the telephone directory, or you can contact the National Association of CABx on 020 7833 218 or at www.citizensadvice.org.uk.
  3. A disability advice centre, which is part of the DIAL network. They should be listed in the telephone directory, or can be contacted through DIALUK on 01302 310 123 or at www.dialuk.info.
  4. A local law centre with an employment or disability adviser. Law centres tend to be located in major towns and will be listed in the telephone directory or online. The Law Centres Federation can be contacted on 020 7842 0720 or at www.lawcentres.org.uk
  5. LawWorks, which offers legal advice to individuals who are not eligible for public funding: www.lawworks.org.uk/
  6. The Disability Law Service, which offers legal advice about discrimination in education and can offer casework support. They can be found at www.dls.org.uk or contacted on 020 7791 9800 or emailed at advice@dls.org.uk.
  7. The Free Representation Unit, which provides free legal representation for employment cases that are referred to it by other legal services providers (such as a law centre or Citizens’ Advice Bureau): www.thefru.org.uk.

Legal aid is no longer available for emplyment problems but legal aid is available for advice and representation for discrimination problems at work if a person meets the financial criteria and has a good case. Access to legal aid for discrimination problems is through the Civil Legal Advice Service which can be contacted by email or telephone (see contact details below).

However, publicly funded representation is not available at any employment hearing. Solicitors may consider a ‘conditional fee agreement’, often known as a ‘no win, no fee’ agreement, if you have a strong case but cannot afford to pay privately.

Compensation and recommendations

If someone wins their discrimination claim in the Employment Tribunal they may be awarded financial compensation. This may be for financial loss, injury to feelings and/or injury to health.

Discrimination by judges or tribunals

Courts and tribunals must not discriminate in the way that they provide services. This means that they must make reasonable adjustments if required. However, judges in courts and tribunals are not bound by the EqA. If someone is concerned that a judge has acted in a discriminatory way, they can either make a complaint or, if the discrimination makes the judge’s decision in the case either legally inaccurate or biased against the disabled person, appeal the decision.

The Public Sector Equality Duty

Under Part 11 of the EqA public sector employers (such as NHS hospitals, government departments, local authorities and the police) have a duty to try and eliminate discrimination, harassment and victimisation, to advance equality of opportunity for people with a protected characteristic and to foster good relations between people who have a protected characteristic and people who do not.

The duty requires public sector employers to have regard to the need to promote equality of opportunity by:

  • Removing or minimising disadvantages suffered by people who have a protected characteristic
  • Taking steps to meet the needs of people who share a protected characteristic that are different from the needs of persons who do not have a protected characteristic
  • Encouraging people who share a protected characteristic to participate in public life or in any other activity in which participation by such people is disproportionately low. 

If someone is bringing a disability claim against a public sector employer they should consider whether the employer has complied with their public sector equality duty. If they have not, this can form part of the discrimination claim.

Human rights and discrimination by public bodies

Public sector employers must act in accordance with human rights (see Mind legal briefing Human Rights) and the prohibition of discrimination under Article 14 of the European Convention on Human Rights. This prohibition covers disability discrimination. This means that whenever the actions of a public sector employer engage human rights (such as the right to a private life under Article 8 or the right to practise a religion under Article 9), they must not behave in a discriminatory way.

If someone thinks that they are being discriminated against by a public sector employer they should seek legal advice as soon as possible.

The Office of Disability Issues

The Office of Disability Issues (ODI) was set up in 2005 to coordinate disability policies across government. It is part of the Department of Work and Pensions and works closely with the Minister for Disabled People. The ODI drafts policies, advises the government on disability issues, undertakes research on disability issues and promotes the principles set out in the EqA, the Human Rights Act 1998 and the UN Convention on the Rights of Persons with Disabilities.

The Equality and Human Rights Commission

The Equality and Human Rights Commission (EHRC) is a statutory body. This means that it was established by legislation and has a specific function. The EHRC is responsible for monitoring and protecting human rights in Britain, including by equality for people with disabilities or other protected characteristics. The EHRC does research, promotes good practice, takes legal test cases on human rights and discrimination. The EHRC also has the power to challenge employers who ask unlawful pre-employment health questions (see above). The EHRC has a helpline (until September 2012) for those with dealing with human rights or discrimination issues (see below for details).

A detailed Code of Practice on the EqA in the context of employment has been produced by the Equality and Human Rights Commission.

Further information

This legal briefing attempts to outline the key concepts of discrimination in employment, as defined by the EqA. It is not a substitute for advice in any particular case. As mentioned above, there are some differences in the way that the law will apply depending on the circumstances and background to the alleged discrimination.

Please read more about the work of Mind’s Legal Unit, or ask for a hard copy by calling 020 8519 2122. For details on the kinds of cases that Mind might be able to help with, please read our Casework Criteria.

For general advice about discrimination and difficulties at work, please email the Mind Legal Advice Service or call us on 0300 466 6463.

For more detailed advice on any of the issues discussed in this briefing, please consult a solicitor specialising in employment law.

More specialist advice can be obtained from the following four organisations:

The Law Society
www.lawsociety.org.uk

0870 606 2555

Civil Legal Advice Service
www.gov.uk/civil-legal-advice
0345 345 4345

The Equality and Advisory Support Service - can offer advice on discrimination and the Equality Act    
www.equalityadvisoryservice.com
FREEPOST, Equality Advisory Support Service, FPN4431
Telephone: 0800 444 205
Textphone: 0800 444 206
Monday to Friday, 9am to 8pm; Saturday, 10am to 2pm.

ACAS
www.acas.org.uk

08457 47 47 47

 

Mind Legal Unit
June 2014

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