Disability Discrimination

Our experienced Employment team provides guidance on preventing and addressing disability discrimination, helping both employers and employees understand their rights and obligations under equality legislation.

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Disability Discrimination

The Equality Act 2010 is designed to protect individuals with disabilities from less favourable treatment in workplaces, education, and in access to goods and services. Disability discrimination is governed by the Equality Act 2010. 

What is a 'Disability'?

From a legal perspective, the definition of disability under the Equality Act 2010 is:

“A person (P) has a disability if—

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

Some medical conditions are expressly deemed to be disabilities, including blindness, severe disfigurements, cancer, HIV and multiple sclerosis.

If a condition is not a deemed disability, it is for the tribunal to decide whether it meets the definition of disability under the Equality Act 2010 on the balance of probabilities. Expert medical evidence may assist a tribunal in making that determination.

Conditions which are excluded from the definition of disability are tendencies to set fires, steal or physical or sexual abuse of other persons, exhibitionism, voyeurism, tattoos and piercings, or hay fever.

Forms of Discrimination

  • Direct Discrimination – treating someone less favourably than others because of their disability
  • Indirect Discrimination – imposing a provision, criterion, or practice that applies to all but disproportionately disadvantages disabled people
  • Discrimination arising from disability – treating a disabled person unfavourably because of something arising from, or in consequence of, their disability. This is a form of discrimination which arises as a symptom of the person’s disability
  • Failure to make reasonable adjustments – failure to accommodate the needs of a disabled person, where such adjustments would prevent a substantial disadvantage
  • Harassment – unwanted behaviour or conduct related to a person’s disability that either violates their dignity or has the purpose or effect of creating an intimidating, hostile, degrading, humiliating, or offensive environment
  • Victimisation – subjecting someone to a detriment because they have done a protected act (brought a claim) about disability discrimination or are considered likely to do a protected act (i.e. bring a claim)

The time limit for bringing a claim

Claims of disability discrimination in the employment tribunal should normally be brought within three months of the date of the alleged act of discrimination. Any “act extending over a period” (commonly referred to as a “continuing act”) is treated as having been done at the end of that period.

Consequences for an employer being found to have discriminated against a person

Consequences for an employer being found to have discriminated against a person

If an employer (or individual working for an employer) is found to have discriminated against a disabled person, they may be ordered to pay compensation, which is uncapped. Compensation is based on financial losses and an injury to feelings award. An injury to feelings award is based on the “Vento” bands (which are updated each April).

From April 2024, these bands are:

  • Lower band: £1,200 to £11,700 (less serious cases)
  • Middle band: £11,700 to £35,200 (cases that do not merit an award in the upper band)
  • Upper band: £35,200 to £58,700 (the most serious cases)

Additionally, the tribunal may also make a recommendation, aimed at reducing the effect on the employee, and / or a declaration. An employer may be required to make changes to their policies or practices to prevent future discrimination.

How we can help

Employees

We support employees from beginning to end. We can provide employees with initial advice, and can support them all the way through the tribunal process.

To bring a claim, employees must notify Acas within the time limit (usually 3 months less a day) to engage the Acas early conciliation process.

Early conciliation is where Acas attempts to contact your employer on your behalf and facilitate settlement. The “clock” is stopped during early conciliation on the 3-month time limit to bring a claim.

If early conciliation is unsuccessful, Acas will issue the employee with an early conciliation certificate. An employee will need to have the early conciliation certificate number in order to submit their form ET1 (the form an employee needs to complete to bring a claim in an employment tribunal). Until Acas has provided the early conciliation number, an employment tribunal will have no jurisdiction to hear the claim.

Once the ET1 has been submitted by the employee, the tribunal will notify the employer of the claim. The employer then has 28 days from the date that it receives a copy of the claim from the tribunal to submit its defence.

If an employee would like support during or after the process of submitting a claim, please do contact our employment team.

Employers

If an employee (or ex-employee) has made a claim against an employer, the employer will have 28 days from receipt of the claim from the tribunal to submit its defence. The deadline ends at midnight.

A defence must be submitted using, or alongside, Form ET3. This is the opportunity for an employer to consider the employee’s initial claims and examine the legal basis on which they are made and consider whether there is any basis to strike out the claim.

There are some circumstances where the time limit for responding to a claim can be extended. However, if an employer does not respond by the deadline, the employment tribunal will issue judgement in default against the employer.

If judgement in default is issued against an employer, the employer may be liable to pay a sum of money, and / or something else, including an injunction or declaration.

We support employers at every stage of the process. We also assist employers in facilitating commercial settlement, and preventative measures such as advice on an employer’s obligations under the Equality Act 2010, drafting policies tailored to the employers, and bespoke training.

From a legal perspective, the definition of disability under the Equality Act 2010 is:

“A person (P) has a disability if—

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

Some medical conditions are expressly deemed to be disabilities, including blindness, severe disfigurements, cancer, HIV and multiple sclerosis.

If a condition is not a deemed disability, it is for the tribunal to decide whether it meets the definition of disability under the Equality Act 2010 on the balance of probabilities. Expert medical evidence may assist a tribunal in making that determination.

Conditions which are excluded from the definition of disability are tendencies to set fires, steal or physical or sexual abuse of other persons, exhibitionism, voyeurism, tattoos and piercings, or hay fever.

  • Direct Discrimination – treating someone less favourably than others because of their disability
  • Indirect Discrimination – imposing a provision, criterion, or practice that applies to all but disproportionately disadvantages disabled people
  • Discrimination arising from disability – treating a disabled person unfavourably because of something arising from, or in consequence of, their disability. This is a form of discrimination which arises as a symptom of the person’s disability
  • Failure to make reasonable adjustments – failure to accommodate the needs of a disabled person, where such adjustments would prevent a substantial disadvantage

Harassment – unwanted behaviour or conduct related to a person’s disability that either violates their dignity or has the purpose or effect of creating an intimidating, hostile, degrading, humiliating, or offensive environment

Victimisation – subjecting someone to a detriment because they have done a protected act (brought a claim) about disability discrimination or are considered likely to do a protected act (i.e. bring a claim)

Claims of disability discrimination in the employment tribunal should normally be brought within three months of the date of the alleged act of discrimination. Any “act extending over a period” (commonly referred to as a “continuing act”) is treated as having been done at the end of that period.

Consequences for an employer being found to have discriminated against a person

If an employer (or individual working for an employer) is found to have discriminated against a disabled person, they may be ordered to pay compensation, which is uncapped. Compensation is based on financial losses and an injury to feelings award. An injury to feelings award is based on the “Vento” bands (which are updated each April).

From April 2024, these bands are:

  • Lower band: £1,200 to £11,700 (less serious cases)
  • Middle band: £11,700 to £35,200 (cases that do not merit an award in the upper band)
  • Upper band: £35,200 to £58,700 (the most serious cases)

Additionally, the tribunal may also make a recommendation, aimed at reducing the effect on the employee, and / or a declaration. An employer may be required to make changes to their policies or practices to prevent future discrimination.

Employees

We support employees from beginning to end. We can provide employees with initial advice, and can support them all the way through the tribunal process.

To bring a claim, employees must notify Acas within the time limit (usually 3 months less a day) to engage the Acas early conciliation process.

Early conciliation is where Acas attempts to contact your employer on your behalf and facilitate settlement. The “clock” is stopped during early conciliation on the 3-month time limit to bring a claim.

If early conciliation is unsuccessful, Acas will issue the employee with an early conciliation certificate. An employee will need to have the early conciliation certificate number in order to submit their form ET1 (the form an employee needs to complete to bring a claim in an employment tribunal). Until Acas has provided the early conciliation number, an employment tribunal will have no jurisdiction to hear the claim.

Once the ET1 has been submitted by the employee, the tribunal will notify the employer of the claim. The employer then has 28 days from the date that it receives a copy of the claim from the tribunal to submit its defence.

If an employee would like support during or after the process of submitting a claim, please do contact our employment team.

Employers

If an employee (or ex-employee) has made a claim against an employer, the employer will have 28 days from receipt of the claim from the tribunal to submit its defence. The deadline ends at midnight.

A defence must be submitted using, or alongside, Form ET3. This is the opportunity for an employer to consider the employee’s initial claims and examine the legal basis on which they are made and consider whether there is any basis to strike out the claim.

There are some circumstances where the time limit for responding to a claim can be extended. However, if an employer does not respond by the deadline, the employment tribunal will issue judgement in default against the employer.

If judgement in default is issued against an employer, the employer may be liable to pay a sum of money, and / or something else, including an injunction or declaration.

We support employers at every stage of the process. We also assist employers in facilitating commercial settlement, and preventative measures such as advice on an employer’s obligations under the Equality Act 2010, drafting policies tailored to the employers, and bespoke training.

FAQs

Yes, indirect discrimination and discrimination arising from disability can sometimes be objectively justified if the person or employer applying the provision, criterion or practice can show that it is a “proportionate means of achieving a legitimate aim”.

The Equality and Human Rights Commission Code suggests adjustments that might be reasonable for an employer to make:

  • Making adjustments to premises (physical or structural)
  • Acquiring or modifying equipment
  • Providing information in accessible formats (e.g. braille, audio)
  • Allocating some of the disabled person’s duties to another worker
  • Employing a support worker to assist a disabled worker
  • Transferring the disabled worker to fill an existing vacancy
  • Modifying disciplinary or grievance procedures
  • Adjusting redundancy selection criteria

Adjustments are not limited to just one adjustment.

Yes, if they meet the definition of disability under Section 6 of the Equality Act 2010.

Yes, an employer may request a medical examination to understand the nature of an employee’s disability and determine what reasonable adjustments might be necessary. However, any such request must be reasonable and handled sensitively. Employers should also obtain the employee’s consent before conducting or requesting such an examination.

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