Workplace & civil discrimination lawyers

Discrimination arising from a disability

A claim for discrimination arising from a disability can be brought when an individual is treated less favourably because of something arising out of their disability. This would include the dismissal of an employee who required time off work in order to undergo medical treatment for their condition.

An employer or organisation may have a defence to such a claim if it can justify their actions by demonstrating that their conduct was for reasons other than the individual’s disability or that such action was proportionate and was taken in order to achieve a legitimate aim. 

If an employer or service provider can demonstrate that an individual received the alleged unfavourable treatment for reasons other than this, then they may be able to demonstrate that their action was proportionate means of achieving a legitimate aim.

Harassment

An individual is a victim of harassment if, as a result of their protected characteristic, they are subjected to unwanted conduct, (whether this be verbal or physical), which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Such harassment can occur in the workplace or in general day to day life.

A Harassment claim can be brought against the individual who conducted themselves inappropriately  and their employer or the organisation with whom they are associated because the employer or associated organisation can be held responsible for the discriminatory acts of their employees or associate which took place during the course of their employment or association. However, it must be noted that such claims cannot be made in the employment tribunal or the County Court against an individual alone.

In some circumstances, an employer or organisation does not have to have known about or approved the acts of the individual harasser and will only have a defence to the claim if they can show that have taken all reasonable preventative steps to stop discrimination taking place.

Victimisation

An individual can be subjected to victimisation if they are disadvantaged in any way as a result of having alleged or reported discrimination, issued tribunal or court proceedings as a result of discrimination or if they have assisted another individual in doing so.

An individual does not necessarily have to have reported discrimination, assisted another to do so or issued proceedings to bring a victimisation claim, if it can be proven that they have been subjected to a detriment because they are believed to have done so. 

What can the court or an employment tribunal do?

There are a wide range of remedies which the county courts and the employment tribunals can order should a finding of discrimination be made.

If the employment tribunal makes a finding of discrimination, it can:

• Issue a declaration that the employer has committed an act of discrimination;
• Issue a recommendation that the employer takes steps to reduce the adverse effects of the discriminatory acts going forward;
• Order the payment of compensation to the claimant for the injury to feelings caused by the act or acts of discrimination.

Similarly, if the county courts make a finding of discrimination it can also issue declarations, recommendations and orders for the payment of significant sums of compensation in lieu of the injury to feelings caused to the claimant by the act or acts of discrimination.

However, in cases involving findings of discrimination, the courts can also make orders for injunctive relief.

These orders require that the perpetrator of the discrimination takes measures to ensure that the discrimination immediately ceases against the claimant and against others in the future. 

What can you do?

If you believe that you have been the victim of discrimination or you and/or your organisation have been accused of acts of discrimination and would like to discuss this with a member of our team, please call us on  01616 966 229 or complete our online enquiry form without delay.

Direct discrimination

Direct discrimination is easy to recognise. It occurs where an individual has been treated less favourably than another because they hold a protected characteristic, namely age, gender, race, disability, sexual orientation, marital status, pregnancy or maternity, gender reassignment status, and/or religion or belief.

An employer or other organisation cannot provide a defence to such a claim once it has been established that they have directly discriminated against an individual.

In establishing less favourable treatment the ‘but for test’ is applied. This means that it must be proven that but for the individual’s characteristic, he/she would not have been subjected to that treatment. 

Indirect discrimination

Indirect discrimination will occur if an employer or organisation applies a policy, condition or requirement across the board, which puts a person/people who hold one of the protected characteristics at a disadvantage.

An employer or organisation may have a defence if it can objectively justify that the discrimination is a proportionate, (i.e. there is no reasonable alternative), way of achieving a legitimate aim (e.g. genuine health and safety reasons). In order to utilise this defence, they would need to show clear evidence that it had conducted a balancing exercise between it’s business needs and the discriminatory effect and had given consideration to alternatives that might achieve the same result without being disadvantageous to the individual/individuals.

Failure to make reasonable adjustments

Employers and other organisations have a duty to make reasonable adjustments when a provision, criteria or practice/physical feature of their premises puts a disabled person at a substantial disadvantage in comparison with others who are not disabled.

The duty is to take such steps as it is reasonable to have to take to avoid the individual being subjected to the disadvantage.

The aim of this duty is to ensure that a disabled person’s employer or organisation’s policies, practices and premises are adjusted as far as is reasonably possible to provide for them to be as close to the standard enjoyed by others without their disabilities.

The duty recognises that this should include the removal of physical and non physical barriers encountered by disabled individuals to enable them to engage in employment and access other services with as much ease as non disabled members of the workforce or community.

The test applied by the tribunal and the court is reasonableness. In gauging the reasonableness of a suggested adjustment to accommodate disabled employees or consumers, a number of factors including the nature of the organisation involved, their financial resources and the cost of the adjustment, will be considered. These factors will then be considered against the nature of the adjustment proposed and the extent of the disadvantage caused to the disabled individual due to the failure to implement the suggested amendment. The disadvantage will need to be proven to be more than minor or trivial.

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