PLEASE NOTE: This page is intended to give general information about the law but is not intended as legal advice and you must not rely on it as such, nor is any liability accepted if you do rely on it. The law may change from time to time and we cannot include all elements of the law and its application in this summary. For further advice relating to your circumstances, please contact us.
What is disability discrimination?
Disability is one of nine "protected characteristics" under the Equality Act 2010, the others being age, race, gender reassignment, marriage and civil partnership, pregnancy and maternity, religion or belief, sex, and sexual orientation. The regime concerning discrimination in employment set out in the Equality Act takes a consistent approach across the protected characteristics where possible.
Disability discrimination claims can be pursued by people who have conditions that meet the definition of disability as set out in Schedule 1 of the Equality Act. This is a wider category than people might associate with the term “disabled”. It includes physical and mental impairments which are long term (lasting or likely to last at least 12 months) and substantial (i.e. the effects are more than minor or trivial).
Part 5 of the Equality Act protects both job applicants and those "in employment" (under a contract of employment, a contract of apprenticeship or a contract personally to do work). This includes employees, workers and a wider category of individuals who might otherwise be regarded as self-employed, provided that they are "in employment" and that their contract places them under a personal obligation to perform the work in question. Post-employment acts (such as a former employer giving someone a bad reference because they brought a claim) are also covered.
Types of discrimination
There are broadly six types of disability discrimination:
Direct discrimination – where a person is treated (or would be treated) less favourably than another person in similar circumstances, because of disability.
Indirect discrimination - where policies, criteria or practices (“PCPs”) that are ostensibly neutral, in reality have the effect of disadvantaging a disabled person, unless the employer can show that they are justified as a proportionate means of achieving a legitimate aim.
Failure to make reasonable adjustments –where an employer has failed to make reasonable adjustments to their PCPs where it is necessary to do so in order to minimise a disability related disadvantage for a person with a disability.
Discrimination arising from disability – where a person is treated unfavourably (without justification) because of something arising from their disability.
Harassment – where one person, engages in unwanted conduct related to a protected characteristic (here, disability) which has the purpose or effect of violating another person‘s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that other person.
Victimisation - where one person subjects another person to a detriment because the other person has done, intends to do, or is suspected of doing or intending to do, a “protected act” which in summary, is an act involving asserting rights under the Equality Act (such as raising a grievance or submitting a claim) or assisting someone else to do so (such as being a witness in a claim).
Discrimination by colleagues
If a person harasses another person or discriminates against them, then the employer will be held liable unless it has taken reasonable steps to prevent such conduct from occurring. The discriminating employee may also be held personally liable.
Deadlines for bringing a claim
A claim for disability discrimination (or any discrimination) must normally be brought within 3 months of the act that you want to complain about.
Where there is a series of acts, or “conduct extending over a period” the three month period runs from the end of the last act in the period. It can sometimes be difficult to identify whether particular acts amount to conduct extending over a period, particularly if the period is long or there are lengthy gaps between the acts.
An employment tribunal has discretion to extend the time limit to pursue a discrimination claim where it considers that it is just and equitable to do so. However, you should not rely on getting such an extension and should be mindful of potential deadlines when seeking advice.
If a successful disability discrimination claim is made, an employment tribunal will generally make an award of compensation for any financial loss suffered as a result of the discrimination, and an award for injury to feelings. Occasionally an employment tribunal may also make an award for personal injury arising from the discrimination. Injury to feelings awards are in three bands, known as the Vento Bands, which set out the range of injury to feelings awards for varying levels of seriousness. The employment tribunal may also make an appropriate recommendation.
There is no cap on compensation in discrimination claims but that does not mean that all claims are valuable. The amount of an award will often largely be determined by the level of financial (usually pay) loss suffered, or likely to be suffered in the future, as a result of the discrimination.
To speak in confidence regarding any concerns you may have regarding sex discrimination, please contact us.