Disability Discrimination

What you need to know about:

What it isWho is covered by the law

Who can help you

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www.pers.org.uk

PERS leaflet no 13May 2014Promoting, sharing and developing

opportunities for best employment practice

Disability and the law Up to 2010 disability legislation in UK stemmed from the Disability Discrimination Act (DDA) 1995. Between then and 2010 the scope of the DDA was widened and the law has been steadfastly strengthened to shield disabled people from discrimination. Now this legislation, along with all other UK discrimination legislation, has been incorporated in the Equality Act 2010. That means you now have more protection against disability discrimination.

What is meant by ‘disability’?You will be covered by the Equality Act if you have (or have had) 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." In practice, decisions about who is or not covered are made on a case by case basis. For example, cerebral palsy is normally covered, but hay fever is not. Not all mental illnesses are covered. Addiction to alcohol, nicotine or other substances is not covered unless it causes a further condition - for instance, liver disease caused by a drink problem.

It is likely that you will be protected by the law if the disability is long term - that is, has lasted for at least 12 months or is likely to last for more than 12 months or for the rest of your life - and if it has substantially affected your day to day activities. These activities do not need to be work related. For example, you will be covered by the law if you are unable to dress yourself or use a knife and fork.

If the impairment is overcome by physical aids (such as a heart pace-maker) or by medication (such as insulin or inhalers), you may still be considered to be disabled under the law.

People with a progressive condition such as HIV, MS, muscular dystrophy or cancer are classified as disabled as soon as there is a diagnosis of these conditions even if they do not have any disabling symptoms.

Equality law allows employers to treat a disabled person more favourably – than a non-disabled person. This recognises that

disabled people face a lot of barriers participating in work and other activities

What is meant by ‘discrimination’?The Equality Act makes it unlawful for an employer to discriminate against disabled job applicants, current and ex employees. Your employer can only discriminate against you if they know you are disabled – or could reasonably have known. However, they should take “reasonable steps” to find out if a worker is disabled. An employer can discriminate against a disabled person in various ways, e.g. if s/he:

treats you, a disabled person, less favourably than he/she treats another individual because of your disability. This is direct discrimination and cannot be justified.

treats you, less favourably than he/she treats another individual because you are associated with (including care for) someone with a disability. This is also direct discrimination and cannot be justified.

treats you, less favourably than he/she treats another individual because he/she thinks you are disabled, even if you are not disabled. This direct discrimination and cannot be justified.

applies a practice, condition, rule or policy that applies to everyone but has a disproportionate affect on disabled people. This is indirect discrimination which can be justified if it is a proportionate means to a legitimate aim, e.g. safe guarding, health and safety.

treats you, less favourably because of something relating to or arising from your disability. As above this can be justified.

fails to make a 'reasonable adjustment' in relation to a disabled person. This is only applicable if your employer has taken reasonable steps to determine if you are disabled. Examples of adjustments include alterations to premises,

modifying equipment, allocating some responsibilities to another worker, altering hours, allowing the disabled person to work at a different location, and providing support. Whether or not it is reasonable to expect an employer to make a particular adjustment depends on a number of factors including the extent of the employer’s financial resources. Note there is no duty to make adjustments for someone who is associated with a disabled person, e.g. a carer but carers do have rights to ask for flexible working and dependant’s leave. All employees will have this right after 30/6/14.

subjects you, disabled or not, to unfavourable treatment because you have given evidence in or made a previous claim or allegations of discrimination about you or someone else under any discrimination legislation. This is victimisation.

harasses you, a disabled person, because of your disability, or a reason connected with it, or harasses someone who is not disabled because they think the person is disabled or because of their association with a disabled person. Harassment is defined as unwanted conduct which has the effect of violating someone’s dignity or creating an intimidating, hostile, degrading or offensive environment. Employers are liable for harassment by their employees and others acting on the employer’s behalf, such as contractors.

3rd party harassmentYou are also protected from harassment by so called ‘3rd parties’ such as customers, or service users. So, if others parties harass you in connection with your work, you could take a case against your employer.

Examples of discrimination*Tracy has an impairment which requires use of a wheelchair. She applies for an office job but the employer assumes that the wheelchair will get in the way, so he gives the job to a person who doesn't use a wheelchair even though they are less suitable for the job. This is direct discrimination and is unlawful. It can never be justified.

* Faisal is undergoing a complex programme of treatment for rheumatoid arthritis that requires numerous hospital visits. His employer insists all medical and dental appointments are taken in employees’ own time. A ‘reasonable’ adjustment would be not including disability related medical appointments in this policy.

* Jack works as driver for a courier company. He has developed a condition which means he is no longer able to drive. His employer is currently looking to recruit an office worker but does not consider Jack even though he is capable of the work. Instead Jack is dismissed. This could be disability discrimination as the employer failed look at reasonable adjustments that would allow Jack to continue in work.

*Sharon has a hearing impairment. Mohammed notices that his colleagues are making fun of her behind her back. He complains about this to his manager. He is then harassed by his colleagues. Mohammed is also covered by the Equality Act as he is being victimised for making a complaint about treatment suffered by Sharon.

*Kyle has a past history of mental illness which he declared on the monitoring section of a recent job application. The interviewer was aware of this as this section was not detached from his employment history and declined to appoint him as he thought he would be disruptive to other staff. This is direct discrimination.

*Ayesha goes for a job interview but the interviewer notices a disabled badge on the car she gets into when leaving. She thinks Ayesha must either be disabled herself or be a carer and will need a lot of time off work, so recruits another candidate who is no more qualified for the post. This is discrimination by perception.

Who does the Equality Act apply to?The Equality Act applies to most workers - full-time, part-time, temporary, casual, self-employed or homeworkers. The Act also covers job applicants, prison and police officers, fire-fighters, and some office-holders. Discrimination in vocational training including practical work experience is

unlawful. It is also unlawful for the employer to discriminate against an ex-employee who is disabled by subjecting him or her to a detriment or to victimisation or harassment that arises out of the employment.

It is now unlawful to ask health and disability related questions at application or interview stage unless they are to determine if reasonable adjustments are required for the interview process, for monitoring purposes, for the purposes of positive action or to ensure the applicant can do intrinsic aspects of the job, e.g. a porter must be able to lift objects and carry them.

What action can you take?If you think you are being discriminated against in any way, you should first try to settle the matter informally. Find out if your company has an equal opportunities or anti-harassment policy. It will have a procedure to follow. If not ask your trade union or a colleague for support. If appropriate, approach the aggressor and ask them to stop. Explain how their action is affecting you.

If that does not resolve it, or if it is so serious or not applicable, you should formally write/submit a grievance to your line manager (provided he/she is not the cause of the problem in which case you send it to their line manager) outlining your concerns. Your employer can not protect you if they are unaware of the discrimination.

You should then be invited to a meeting by your employer. You must be given the opportunity to take a companion to the meeting. This can be limited to a colleague or Trade Union representative though a reasonable adjustment may be to widen this, e.g. to someone who usually helps you communicate, if your disability limits your ability to do so. If you decide to take a companion, it is polite to inform your employer whom you have chosen. Your companion can address the meeting and confer with you, but can not answer questions directly put to you.

At the meeting you should be permitted to explain your grievance and how you think it should be resolved. Your employer may then adjourn for an investigation or decide on what action if any to take. This decision should be confirmed to

you in writing.

If you feel the issue has not been satisfactorily resolved you should appeal following your employer’s procedure. If that does not resolve the issue, and you think you may have a claim against your employer you should first contact ACAS on 0300 123 1100 who will ask you to complete an Early Conciliation notification form. They will then contact you to gather information about the dispute you have with your employer. A conciliator will aim to make contact with both parties and talk through the issues to see if a solution can be found.

You must contact ACAS within three months of the incident. The earlier the better as that will give you time to consider your next step if conciliation fails. If discrimination occurred over a period of time, the 3 month period begins to run from the date of the last act of discrimination. You can contact PERS for advice on how time limits affect you.

ACAS will find out if your employer is prepared to offer you an out of court settlement for the alleged act of discrimination. If you accept the settlement, the case will be dropped. You should get advice before you accept a settlement to make sure that the offer is reasonable.

NoteYou do not have to resign before contacting ACAS unless you are claiming constructive unfair dismissal – see PERS leaflet Dismissal.The Employment Tribunal (ET)If the matter is still unresolved complaints under the Equality Act are dealt with through an ET but seek advice first as there are costs involved unless you qualify for a fee waiver. Further the process can be complex.

If you decide to take your case further, to an Employment Tribunal (ET), and have your Early Conciliation certificate, you need to fill in an ET1 form which is available online (Google ET1).

Who can help you?The Equality and Human Rights Commission (EHRC) can

provide information and guidance on discrimination and human rights issues.

Website www.equalityhumanrights.com

Post: Equality and Human Rights Commission HelplineFreepost RRLL-GHUX-CTRXArndale House, Arndale Centre Manchester M4 3EQ

EHRC’s helpline is now run by :

Equality Advisory Support Service (EASS)Telephone: 0800 444 205 Textphone: 0800 444 206Monday to Friday, 9am to 8pm Saturday, 10am to 2pmOr write to FREEPOST Equality Advisory Support Service FPN4431

Citizens Advice Bureaux (CABx) and Law Centres: Your local CAB or Law Centre will also be able to give you free advice.

Trade Unions: Your trade union should be able to help you.

Advisory, Conciliation and Arbitration Service (ACAS): ACAS can provide you with information regarding employment law issues. Contact ACAS on 0300 123 1100 or on the internet at www.acas.org.uk .

Disability Information Advice Line (DIAL): There are DIAL centres in most areas of this region. They provide free information and advice on the whole range of disability issues. Contact the national DIAL office for details of a DIAL branch in your area on 01302 310 123 (phone and textphone) or see http://www.dialuk.info/findadial/index.asp

Employment advice line 01924 428030 Monday and Friday10am to 1pm

Tuesday, Wednesday and Thursday10am to 4pm

Evening session Tuesday 5.30pm to 7.30pm

Our service is currently free to some disabled people in Yorkshire and Humber. Reasonable rates apply for other workers,

organisations and employers. Visit our website for details.www.pers.org.uk

Pay & Employment Rights Service is a registered charity providing advice, information, training and consultancy on pay

and employment rights. We depend on grant funding and donations to enable us to offer our free services and

publications. If you would like to donate, contact us or text PERS36 and the amount you wish to give to 70070. Thank you.

The information in this leaflet was accurate at the time of going to press. It is intended as a guide and is not a full statement of the law. Seek advice before taking action. You can feedback about our service by clicking on the link on our website.

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