If you believe you have been discriminated against on grounds of disability or you have a query which you wish to discuss on a confidential basis with specialist solicitors, then please complete our online enquiry form or call us on 0844 488 9090.
Am I able to bring a claim for disability discrimination?
The Disability Discrimination Act 1995 (“DDA”) applies to the whole of the UK and protects people with disabilities (including employees, job applicants, apprentices and contract workers) against discrimination in all aspects of employment.
What is a “disability?”
You may be classed as suffering from a disability if you have a physical or mental impairment which has a substantial and long term adverse effect on your ability to carry out normal day-to-day activities. This can include (amongst other things) learning disabilities, mental illness such as depression, cancer, aids or HIV infection, impairments which come and go if the actual effect is likely to recur (e.g. rheumatoid arthritis) and severe disfigurements.
If you suffer from a progressive condition you will be covered from the moment your condition leads to the impairment of your ability to carry out day-to-day activities.
The impairment must affect your ability to carry out day-to-day activities (e.g. mobility, ability to lift, carry or move everyday objects, physical co-ordination, eye-sight or hearing, speech, memory, manual dexterity, ability to concentrate, learn or understand, continence or perception of risks).
The effect on your ability to carry out day-to-day activities must be more than trivial and the effects must have lasted or be likely to last at least 12 months or for the rest of your life unless the condition will not be classed as a “disability.”
What is classed as discrimination?
There are five types of discrimination that are covered by the disability discrimination laws:
- Failure to make reasonable adjustments
- Direct discrimination
- Disability related discrimination
Duty to make reasonable adjustments
If any physical feature of your employer's premises or other arrangements relating to recruitment or your working conditions cause you a substantial disadvantage then your employer is under a statutory duty to make reasonable adjustments to prevent it.
The following are examples of reasonable adjustments that may be made:
- Altering premises
- Improving access to buildings
- Re-allocating duties
- Transferring staff to fill an existing vacancy or assigning someone to a different place of work
- Altering working hours
- Acquiring or modifying equipment, instructions or manuals
- Modifying procedures for testing or assessment and providing a reader, note-taker or supervision
Your employer is under a duty when they are aware, or should be aware, that you are suffering from a disability and that you are likely to suffer a disadvantage because of your disability. Therefore, if there are adjustments that you require to be made it is recommended that you put these in writing and bring them to your employer’s attention.
If an adjustment is reasonable and your employer failed to make the adjustment then they cannot rely on a defence to justify their failure.
Direct Discrimination is easy to recognise: it occurs where an individual has been treated less favourably than a person who does not have the same disability as the individual.
An employer cannot provide a defence once it has been established that they have directly discriminated against an individual.
Disability related discrimination
This occurs where an individual is treated less favourably because of a reason connected to their disability (e.g. they are not promoted because they cannot type as fast as a colleague but the reason why they cannot type faster is because of their disability).
Your employer may also offer you less favourable terms of employment if there is a substantial reason for doing so and no reasonable adjustments can be made. For example, if, despite any reasonable adjustments, a disabled employee has a significantly lower output than other employees, the employer can pay that employer less than the others.
You may be able to bring a claim for harassment if you have been subjected to unwanted conduct which has violated your dignity or created an intimidating or offensive environment.
Your claim can be brought against the harasser and your employer as they can be held responsible for the discriminatory acts of their employees which took place during the course of employment. Your employer does not have to have known about or approved the acts and will only have a defence if they can show that have taken all reasonable preventative steps to stop discrimination taking place.
You may be able to claim that you have been victimised if you are punished or treated differently because you have made a complaint about disability discrimination (formal or informal) or supported a colleague in their complaint.
It is usually difficult to prove victimisation claims as the employer will often deny that the treatment was due to the fact that the individual had been involved in a complaint about disability discrimination and allege that the treatment was due to another reason. An employer will have a defence to a victimisation claim if the allegation made by the individual was false and in bad faith.