Disability Discrimination

What is Discrimination? – Work Discrimination

The Equality Act 2010 states that where an employee has a disability s/he is considered to have a protected characteristic. An impairment (either mental or physical) can amount to a disability, when it adversely effects the employee’s ability to carry out their normal day-to-day activities.

Direct disability Discrimination – is when one person is treated “less favourably” than another on the grounds of their disability pursuan to s.13(1) of the EqA 2010. (EqA is short for the Equality Act 2010).

Discrimination arising from Disability – is where your employer treats you ‘unfavourably’ because of something arising in consequence of your own disability, which is not a proportionate means of acheiving a legitimate aim pursuant to s.15(1)(a)(b) of the EqA 2010 (Equality Act 2010). Discrimination arising from disability is easier to win at the Employment Tribunal, as you do not need a comparator as you do for direct discriimination (above). You only have to demonstrate to the Employment Tribunal that you have been treated “unfavourably” ‘because of’ your own disability, and not “less favourably” compared to another employee.

Indirect Disability Discrimination – is less obvious and inadvertent. In the field of employment, it exists where a “provision, criterion or practice” [pcp] is applied to a disabled person, which would not equally apply to non-disabled person and which puts you or would put you at a substantial disadvantage pursuant to s.19(1)(2)(3) of the EqA 2010 (Equality Act 2010).

Harrassment – A person harasses another if he “engages in unwanted conduct related to a disability, and the victim recipient finds the “unwanted conduct” either offensive, undignified, embarrassing, humiliating, intimidating or degrading. This is pursuant to s.26 of the EqA 2010 (Equality Act 2010).

Victimisation – In an employment context, means treating someone ‘less favourably’ than others because that person exercised a statutory right. Thus, if your employer subjects you to a ‘detriment’ for asserting your statutory right under the Equality Act 2010, this could amount to ‘unlawful victimisation’ pursuant to s.27(1)(2) of the EqA 2010 (Equality Act 2010).

Detriment – A detriment is where an employee is “disadvantaged”. It a less of a hurdle to prove than ‘less favourable treatment’.

A disability can also be an “impairment” (either mental or physical) when it adversely effects your ability to carry out normal day-to-day activities.

These six different types of discrimination are referred to as “prohibited conduct”.

For a list of disabilities, which Employment Tribunals recognise, clear here.

Triggers for Disabilities

An employee’s disability is often triggered or reoccurs due to either (i) harassment at work, or (ii) work-related stress.

In our own employment tribunal case, we established that it was the “accumulative effects” of both being a combination of  work-related stress and harassment which was the “causation” for my wife’s ‘panic attacks’ and ‘depression’ and the raison d’etre for my having more frequent ‘asthma’ attacks. Our consultations with our own doctor provided medical evidence which established and supported our employment tribunal claim that the “unwanted conduct” had been “prejudicial” to our occupational health. Therefore, the employer was under a “statutory duty” to make “reasonable adjustments”, which it had at all times omitted to do.

Prior to reading this segment, I want you take the time to read the through the segment on work-related stress. This segment outlines the steps your employer ought to take to both prevent and combat workplace discrimination, workplace stress and workplace harassment. It outlines your employment rights, and rights as an employee.

Establishing A Link Between Harassment at Work and Disability Discrimination

If the employee is able to establish a link between the causation and the injury, then the employer maybe liable to pay compensation. The Court of Appeal has established the following:

“The claimant must show (establish facts) that that the employers “breach of duty” has “caused” or “materially contributed” to the “harm suffered”. It is not enough to show that occupational stress “caused” the “harm” –  it must be linked with the ‘breach’.”

Employer’s Constructive Knowledge of Your Disability

Should your employer have instructed a third party occupational health provider to undertake a health questionnaire at the commencement of your employment, then it would very likely have asked whether or not you have a disability, either past or present. Should you have answered yes, then your employer would have “constructive knowledge” of your disability.

Your employer may also have enquired as to whether you have a disability (or whether it may need to make reasonable adjustment/s for your person) during the following times: (i) application for employment (ii) probationary review (iii) annual appraisal (iv) tax information (disability tax credits) (v) parking. Should your employer be aware that you have a disability, it has “constructive knowledge”.

If you have a mental or physical impairment (disability), you need to let your employer know in your letter of grievance; otherwise your employer might not realise it has a [duty] to make a ‘reasonable adjustment’ for your person, and would later argue in the Employment Tribunal that you had failed to inform them of this fact. The judge would unlikely hold an employer liable for disability discrimination in circumstances whereby the employer did not know the employee had an ‘impairment’ or ‘disability’.

Eastern and Coastal Kent PCT v Grey (IDS 875)
“The duty to make adjustments does not apply if the employer does not know, and could not be reasonably expected to know, that the employee has a disability and is likely to be placed at a substantial disadvantage.”

Employers Duty to Make Reasonable Adjustments

Employers must make reasonable adjustments to prevent disabled people from being put at a “substantial disadvantage” in comparison with people who are not disabled. An employer’s failure to make “reasonable adjustment/s” for an employee who has an impairment, which adversely effects their ability to carry out their normal day-to-day activities, would likely be acting in contravention of the Equality Act 2010. However, the employers duty does nor extend to just “recognised disabilities”.

What Constitutes Having An Impairment or Disability?

In the case of J v DLA Piper UK LLP [2010] IRLR 936), it was held that when deciding whether an employee has an “impairment” Employment Tribunals do not have to be stead fast or rigid in their approach, and can first consider whether the employees’ ability to carry out normal day-to-day activities has beenadversely affected. Given the aforementioned, employees’ have been successful in winning Employment Tribunal claims for impairments, which would not otherwise be obvious, having established that (i) a knee injury (ii) back problem, and (iii) having heavy menstrual cycles have “substantially impaired their ability to undertake their normal day-to-day activities” and which have impacted upon either their mobility or concentration. This is important, as you will have to establish in the Employment Tribunal how your impairment has “substantially effected” your “day-to-day activities”. In addition, the effect of your impairment must last (or likely last) for a period of no less than twelve months.

Establishing Facts

In our own case, my wife established that her impairment (panic attacks) meant she was prone to fainting. This posed a “significant risk of harm” to her health, especially given the nature of her occupation, whereas a bout of fainting within the working environment would likely amount to a “danger” under the auspices of  the Employment Rights Act 1996 S.44 & S.100. In addition, her depression also impeded her ability to concentrate. The cumulative effects of both “impairments” substantially effected her “abilities and capabilities” to undertake her job role.

As for myself, I established a link between the stress and the harassment, insofar that it triggered my having more frequent asthma attacks. This necessitated the need to take my medication more frequently, which was potentially ” injurious” to my health. Consultations with my own doctor established the fact(medical evidence) that the over use of my medication induced adverse health effects such as heart palpitations, rapid heartbeat and high blood pressure. Not only was this ‘injurious to my health’, but substantially effected my ability to concentrate, and also impaired my mobility within the working environment to perform my duties (difficulty breathing).

The Health and Safety Executive states:

“A person is defined as disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The key thing is not the impairment but its effect. Some people don’t realise that impairments such as migraines, dyslexia, asthma and back pain can count as a disability if the adverse effect on the individual is substantial and long-term.

‘Normal day-to-day’ means things that people do on a regular or daily basis, such as reading, writing, using the telephone, having a conversation and travelling by public transport .

‘Long-term’ usually means the impairment should have lasted or be expected to last at least a year.

‘Substantial’ means not minor or trivial.”

Employers Duty To Make Reasonable Adjustments

1. You can now see how important it is to establish in your letter of grievance that you have an impairment/disability. Your employer’s duty to make a reasonable adjustment for your person only exists if (i) it is made aware of the fact that you have an impairment, and (ii) that making an adjustment would do some good.
2. Your second step, should be to provide your employer adequate information about your impairment, so that it can decide what adjustments might be beneficial for you. The *onus is on your employer to make an assessment – Tarbuck v Sainsburys Supermarkets Ltd [2006] IRLR 664. It would be good business practise’ for the employer to discuss and assess with you what it can do to alleviate the effect your impairment is having upon your abilities to perform your duties. You do not need to elaborate or go into any great detail about your impairment. Your employer is obliged to take what you tell it at “face value”.
3. Your third step (very important) is to state within your letter of grievance how your impairment effects your ability to carry out your day to day activities. This is imperative, as it places the burden upon your employer to “act”. An “omission” to make a “reasonable adjustment” may amount to a contravention of the Equality Act 2010 pursuant to s.21 and s.39(5). It also makes it very difficult for an employer to rid themselves of an employee it no longer wants to employ. It is common practise for an employer who wants to rid itself of an employee, to allege that the employee was not up to the job, or by calling into question the employee’s “abilities and capabilities” to perform his or her duties. This practise would most certainly amount to “victimisation” where the employee had established within their letter of grievance that their ‘impairment’ impeded their ability to undertake their day to day activities, or perform their duties. It would be incumbent upon the**employer to make an ‘assessment’.
4. Further, by stating that the discriminatory act is “prejudicial” to your health, you are letting your employer know that a “foreseeable risk of harm” exists. A failure to act would likely amount to both a breach of the “duty of care” and of the “mutual trust and confidence“.

Example paragraph you could include within your grievance letter to elucidate this point:

By reason that I have an “impairment” I am asking that (company name) comply with its statutory duties under the auspices of the Equality Act 2010 to make a reasonable adjustment for my person pursuant to s.21 and s.39(5). As an asthmatic, the triggers within my working environment are the causation of my having asthma attacks. This necessitates the more frequent use of my inhalers, the combination of which is materially injurious / prejudicial to my health. As a consequence of the aforementioned, the effects of my impairment impedes both my ability to concentrate, and my mobility. This substantially affects my ability to perform my day to day activities, and undertake my duties.

The important thing to do in your letter of grievance, is not to hold anything back, which you could later use in an Employment Tribunal to draw inference against your employer. You have to ‘place the burden‘ on your employer to make an assessment of your abilities and capabilities. Any “omission to act” by your employer would have to be explained by them (or their solicitors) in an Employment Tribunal.

The following applies:

1. I would strongly suggest that you put in your letter of grievance some suggestions of reasonable adjustment/s which the employer could make for you. This puts the onus on the employer to ‘consult’ you.

2. The employer is not legally obligated to consult you, but a failure to do so would [demonstrate] to the Employment Tribunal poor managerial practises within the organisation, especially where you have made a suggestion of an adjustment, and the employer had not even bothered to discuss that adjustment with you.

3. Establish within your letter of grievance, what the triggers are for your having more frequent asthma attacks. (see the example in the grievance letter sample).

*Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 567 –
It was established that a statutory duty to make reasonable adjustments includes a [duty] to carry out a [proper assessment of the employee’s condition]. A failure to carry out a proper assessment can itself amount to a breach, even if there are no adjustments that can reasonably be made for the employee. This case precedent has been superceded by Sainsbury v Tarbuck (see above).

**Archibald v Fife Council [2004] IRLR 651 HL –
An employer has a positive duty to make reasonable adjustments for the benefit of an employee who by reason of disability has become incapable of doing the job for which he or she is employed, if he or she could do another job within the same organisation.

Detriment “Arising From” Disability

A detriment is where an employee is “disadvantaged”. “Detriment arising from disability” will occur if an employer treats an employee in a detrimental way due to something that is as a consequence of their disability. A ‘one off act’ act of harassment can amount to a discriminatory practise, if it is serious enough.

Detriment Arising From Health & Safety – The Employment Rights Act 1996

The Employment rights Act S44.(1) states:

“An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that;-“

(c) he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or.

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.”

With regard to (c-e) above, should your employer ‘fail to act’ upon the information contained within your letter of grievance, where you have made it clear that you are being subjected to “prohibited conduct” it could be argued that the conduct in question was injurious to your health, which may constitute a “danger”. This gives the employee the right to make what is known as a “protected disclosure”. I have this topic within the segment on “whistle-blowing“.