Workplace Disability Discrimination in Scotland January 2016

Summary of the law on

Workplace Disability Discrimination in

Scotland

Midgie Bite #62

January 2016

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2

Disability Discrimination

Contents 3. Time Limits For Lodging A Claim.

3. ACAS Early Conciliation.

4. Funding & Support

5. What Does The Act Cover?

5. Who Is Protected?

5. Who Is Liable?

5. Guidance available to employers

6. What Is The Public Sector Equality Duty?

7. Fit For Work

8. Workplace Discipline and Investigation.

9. The Investigation Stage.

12 Who Is Disabled Under The Act?

12. How Long Is Long Term

12. What Are Normal Day-To-Day Activities?

13. What Does The Act Outlaw?

14. What is positive action?

19. Duty To Make Adjustments

20. Untaken Holidays

21. Top issues for making reasonable adjustments to deal with Workplace Absences and Disability

Discrimination

21. Harassment

22. Victimisation

22. What Health Related Enquiries Can Employers Make?

22. Is It Easy To Prove A Claim?

23. How Do Claimants Gather Information From Their Employer?

23. What Remedies Are Available?

23. Recommendations.

24. Access to Work Scheme.

26. Work Choice Programme.

27. Other Medical and Employment Support Services in Scotland.

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Time Limits For Lodging A Claim There are strict time limits which apply to claims relating to discrimination claims. In particular, any claim

regarding discrimination, where the employment is in Scotland, must be lodged with the Central Office of

Employment Tribunals office in Glasgow within 3 months minus one day of the act of discrimination that the

person is complaining about. In exceptional circumstances the three month time limit may be extended if a

Tribunal believes it is just and equitable to do so. Internal appeals should not be relied upon as extending the

time limits.

When discrimination has occurred over a long period of time, this may amount to a continuing act extending

over a period. A claim must then be brought within three months less one day of the last act in the series of

acts.

If is useful to be able to demonstrate that a written grievance has been issued to the employer setting out the

complaint in order to prevent any possible reduction in any Tribunal award. However, lodging a grievance does

not alter the time limits.

ACAS Early Conciliation Any prospective Employment Tribunal claim must go through the ACAS early conciliation process before it can

be submitted to the Employment Tribunal. This free service aims to resolve more employment disputes before

they reach a Tribunal. You will get a certificate from ACAS if Early Conciliation is unsuccessful. You will need a

copy of this certificate to submit a claim to the Employment Tribunal.

The time limit for making a claim to the Employment Tribunal is extended by the amount of time your claim has

spent in ACAS Early Conciliation. For example, if your claim spent 3 weeks in Early Conciliation, the deadline

is 3 weeks later. You will always get at least one month to make a claim.

You should get legal advice on your situation before pursuing any case. Please contact our unique specialist

employment support team if you wish further details at [email protected]

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At Thompsons Scotland we recognise that almost as important as the time limit is looking at how to fund your

Employment Claim. We offer specialist Scottish Claimant Employment Law advice and Tribunal representation

to Claimants and may be able to offer the following options:

Funding & Support

Fixed Fee

Thompsons Scotland can offer a range of options to pay for and to progress your employment claim, we can

often provide initial legal advice on a fixed fee basis.

Hourly Rate

We can, like many other law firms, help you with your employment claim on the usual hourly rate basis.

Legal Expense Insurance

Thompsons Scotland can work with your Home Content or other similar Insurer who may offer legal expense

insurance who may offer to fund at least some of your fees. These policies will generally only provide some

funding for employment claims where they are satisfied that it has reasonable prospects of success and you

have exhausted your employer’s internal processes.

No Win No Fee Agreements

If you do not have access to legal expenses insurance, then once an Employment Lawyer has assessed your

claim, we may be able to offer you a form of No Win No Fee agreement, meaning that you don’t pay any

further sum to us if we can’t successfully resolve your claim and we will cap our fees based on a percentage of

the compensation secured.

We can look in some instances to combine the agreements referred to above to suit your particular claim, your

needs. Other funding options may be available. We do not offer the very limited form of Legal Aid [which

does not cover Tribunal Fees] in Employment Tribunal claims . Citizens Advice in Scotland may be able to

provide some advice to you. If you are currently a member of a Trade Union, we would recommend you

approach your Trade Union direct for advice and support.

Employment claims are subject to tight deadlines. For example the majority of claims must be brought within 3

months of the matter you are complaining about so it is important that you act quickly. Thompsons Scotland

will not be deemed to be acting for you, until there are signed terms of business and appropriate identity

checks in place.

*Please note, if you are receiving this leaflet along with a letter engaging you as a client of this firm, this leaflet forms part of our advice to you about your case. You

should read it carefully and raise any questions you have with your appointed adviser. If you are reading this leaflet and you are not a client of this firm, then the

information that follows does not constitute legal advice. You should always seek formal advice on your case before deciding what to do next.

5


What does the Act cover?

The Act covers all forms of discrimination in the workplace, including recruitment, terms and conditions,

promotions, transfers, dismissals and training or any other detrimental treatment because of disability.

Discrimination can be “direct” or “indirect”. Later in this Guide we explore what these terms mean.

Who is protected?

The employee’s problem with his or her health has to satisfy the legal definition of “disability” “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”. That is discussed in more detail below. The protection covers all employment and

applies to apprentices, those working under a contract of employment and the self employed working under a

contract personally to do the work. The protection can extend to a perceived disability and or the employee’s

association to someone who is disabled (for instance the employee is a carer for a family member who is

disabled).

Who is liable?

The employer is generally liable for acts of discrimination, harassment and victimisation in the workplace.

However, individual employees may also be liable, for example if they have subjected a colleague to

harassment related to disability.

Ex-employees can also make a claim against a former employer, if they are complaining about something that

was closely connected to their employment.

Guidance available to employers. This guide is intended to provide advice and guidance to employees. It was worth noting that employers do

have a wide range of readily available guidance of how to comply with their obligations including free guides

from the independent conciliation service ACAS who have recently published 4 new guides on equality:-

* Equality and Discrimination: Understand the basics

* Prevent Discrimination: Support equality

* Discrimination: What to do if it happens

* Disability Discrimination

6


What is the public sector equality duty?

Public bodies in Scotland such as local government, the NHS and those carrying out public functions are

under a duty to consider equality when making day to day decisions both in terms of service delivery and

employment. This consists of a general duty and specific duties.

The general duty has three aims and requires public bodies to have due regard to the need to:

• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by

the Act.

• Advance equality of opportunity between people from different groups.

• Foster good relations between people from different groups.

The specific duties (which apply to most public authorities) are designed to help public bodies comply with the

general duty. Broadly, for Scottish Public Authorities these require specified public bodies to publish

information on how the general duty is being met, set equality objectives and engage with others such as

employees and unions when setting the objectives.

Whilst the specific duty to publish and report for Scottish public bodies such as local authorities is wider than

for UK based public bodies operating in Scotland otherwise broadly the public sector equality is comparable.

7


Fit for Work in Scotland The Scottish Government has set up a free scheme called Fit for Work operated in Scotland via the NHS

which aims to provide advice to employees and in certain circumstances to provide a referral to an

occupational health service. Once you have reached, or in the opinion of your GP, are expected to reach, four

weeks of sickness absence, you can be referred by your GP for a telephone assessment by Fit for Work.

Note that Fit for Work in Scotland is separate to the benefit system Work Capability Assessment although the

DWP’s system is sometime confusingly referred to as Fit to Work Test.

The purpose of the Fit for Work in Scotland telephone assessment service is said to be to give you, your

employer and your GP advice and recommendations to assist your return to work more quickly.

The scheme is voluntary. It may be that your employer has its own rules and occupational health service which

it prefers to use.

• Although employees will normally be referred by their GP, employers can also make a free referral

after 4 weeks of absence.

• To be eligible for referral by the employer, the employee must:

i) have 4 weeks absence from work;

ii) have a reasonable likelihood of making at least a phased return to work;

iii) not have been referred for a Fit For Work assessment within the last 12 months; and

iv) give consent.

• The Fit to Work assessment will consider the issues preventing the employee from attending

work and may make recommendations which would assist in a return to work and can include a

“Return to Work Plan”.

• While the scheme does not affect an employee’s entitlement to Statutory Sick Pay and an employer

cannot refuse to pay this if the employee does not consent to attend an assessment, refusal to

consent may have wider implications for an employee. Appropriate advice should always be

sought prior to making any decision.

The Report will be provided to the employer, subject to the consent of the employee.

Employer can claim a tax exemption of up to £500 per employee per year to pay for interventions

recommended by Fit for Work Scotland.

Once a Return to Work Plan has been issued this can be used in place of a Fit Note (which

replaced the GP based Sick Note several years ago).

GPs are not obliged to issue a Fit Note in these circumstances. However where the employee does not

consent to the Return to Work Plan being shared with the employer, or the employer does not accept a

Return to Work Plan as sufficient evidence of incapacity to work, it may be necessary for the employee’s GP to

provide him/her with a Fit Note. The GP should use their professional judgement to decide whether a Fit Note

is required.

It is useful for the employee to identify what any Fit For Work report issued to the employer says to ensure that

recommendations are acted on or otherwise that any reasons for not acting on recommendations are

appropriately considered. The recommendations of a Return to Work plan are not mandatory but they may be

significant evidence in the event of a dispute.

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The employee can withdraw consent at any point during the process. The employee can also request that

specific parts of the Return to Work Plan be removed before it is shared with the GP or the employer. If an

employee withdraws consent to a Return to Work Plan being shared with the employer or the employee

withdraws from Fit for Work altogether, the employer will normally still require the employee to provide

reasonable medical evidence of fitness to work if he/she does not return to work. The employer may tell you

what evidence they require in these circumstances.

Return to Work Plans can be accepted in place of a fit note for benefit purposes. Detailed advice about

entitlement to benefits should be obtained if the employee has any question about that issue.

There is detailed guidance on the scheme available from the government.

Workplace Discipline and Investigation

Some employees who are disabled are subject to discipline process within work for instance around absence

from work and it can be useful to understand the process as may be applied by an employer while the internal

process can be important it is important not to delay in submitting an appeal to the Employment Tribunal – an

employer who knows that they are already subject to an Employment Tribunal claim lodged within 3months

less one day of the original matter complained of may well look at an internal decision on appeal for instance

very differently than one where they are no longer at risk of being taken to tribunal.

The independent conciliation service ACAS has published a lengthy non-statutory Guide to good practice in

Discipline and Grievances at work and while this has no direct legal effect it sets out what is usually regarded

as good practice.

The ACAS Code recommends the following stages:

The Investigation Stage

The employer should carry out the necessary investigations to establish the facts without unreasonable delay.

The employer may just collect the evidence or may hold an investigatory meeting with the employee before

going to any disciplinary hearing. Different people should carry out the investigation and the disciplinary

hearing where that’s practical.

Suspension

In cases where the employer consider that suspension is necessary, this should be kept as brief as possible

and should not be used as a disciplinary sanction in itself. Suspension should be on full pay unless the

contract of employment allows.

9


The Disciplinary Stage

Following the investigation, the employer should give the employee written notification that there will be a

disciplinary hearing. The notification should contain:

date, time and venue for the disciplinary hearing

notification of the right to be accompanied to the hearing

enough details of the alleged misconduct or poor performance to enable the employee to prepare

for the hearing, usually including copies of any witness statements and other written evidence.

The disciplinary hearing should be held without unreasonable delay. It the meeting, the employer should

explain the complaint against the employee and go through the evidence which has been gathered.

The employee should be allowed to:

respond to the allegations

present evidence and call relevant witnesses

ask questions

bring a fellow worker or trade union representative as a companion

Both employer and employee should give advance notice of any witnesses they intend to bring to the hearing.

After the meeting, the employer must notify the employee in writing of the outcome and any disciplinary action.

If the employee is dismissed, s/he should be given the reasons for dismissal and told of the right to appeal.

The appeal stage

Employees should appeal where they feel the disciplinary action is wrong or unjust. Appeals should be heard

without unreasonable delay. Wherever possible, appeals should be heard by a manager who has not

previously been involved in the case. Employees also have the right to be accompanied at the appeal.

Employees should be told of the appeal outcome as soon as possible.

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The appeal procedure

The Code simply says appeals should be heard without unreasonable delay. They should be dealt with

impartially and where possible, by a manager who has not previously been involved in the case. Employees

have the right to be accompanied again by a fellow worker or accredited Trade union representative.

Employees should be informed of the writing in outcome as soon as possible. ACAS adds in its non-statutory

Guide that ideally the manager who hears the appeal should be more senior than the one who heard the

original hearing. But that is not always possible with small organisations. If an organisation is really tiny,

maybe the owner or member of any Trustee board could hear the appeal. The employer’s own disciplinary

procedure may set out procedure and time-scales. There is no general time-limit within which employees

should notify their appeal, but they should not wait too long. Be careful not to miss any time-limit set out in the

employer’s own disciplinary procedure.

ACAS says (in its non statutory Guide) that 5 working days would usually be appropriate, though sometimes

longer is appropriate. If the employer unreasonably insists on a shorter time-scale which the employee cannot

adhere to, e.g. 2 working days, the employee should at least give written notification within the 2 days of his/

her intention to appeal and say that the grounds will follow shortly.

Grounds of appeal

Remember that any appeal hearing may be delayed and the time limit for lodging at the Employment Tribunal

is not affected by the making of such an appeal. It is common for many employers to delay an appeal until

after the 3 month less one day time limit for lodging a Tribunal Claim. Where there is any possibility that an

appeal to Tribunal may be made it is always recommended that the internal appeal process is also used as the

Tribunal may well regard the failure by the employee to impact on it overall decision and may result in a

reduced award even if the case is otherwise successful the Tribunal indeed may consider the costs incurred

by the employer of the Tribunal could have been saved has the employee used the internal appeal.

Even where an employees doesn’t want to return to work (and it would almost never be recommended that an

employee should resign without obtaining detailed legal advice) an appeal would generally be recommended

to minimise the risk to a possible discrimination claim and it may mean that the employer can simply rely upon

the employee’s decision to leave as bringing matter to an end and avoiding any legal obligation to the

employee.

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An appeal can be a full rehearing of all the facts or simply a review of the sanction. This depends on the

employee’s grounds of appeal. An employee may appeal on various grounds including:

the evidence did not support the manager’s conclusions at the original disciplinary

new evidence has emerged

the penalty is inconsistent with how others have been treated

the sanction is too severe

the disciplinary and investigation was handled in a way which was procedurally unfair

there was unlawful discrimination in the handling of the disciplinary or failure to make reasonable

adjustments

When drafting appeal it can be useful to consider who will be hearing the appeal and what arguments are

likely to appeal to them? How will they be thinking - consider what impression the letter will make. While an

appeal should set out the argument in a polite, firm and measured way appearing hostile will generally be

unhelpful and may well adversely impact at the stage of Employment Tribunal.

While pressure may need to be applied to the decision-maker this will generally be best achieved by using

persuasive arguments which the decision-maker knows would look powerful to a tribunal and which focus on

the strongest points. While the issues can be upsetting it can be counterproductive to suggest that the

employee was ‘set up’ without clear and objective evidence. After drafting an appeal it can be useful to seek

legal advice on the terms of the letter before issue.

Appeal outcomes

The decision of the appeal may be to confirm the previous decision, to reduce the sanction or to overturn the

decision altogether. Occasionally, the appeal may uphold the decision but change the basis on which it was

made. There is no guarantee that an appeal decision will not impose a worse sanction, e.g. dismissing an

employee who is appealing against a final written warning but that would be extremely unusual. It would also

be likely to be unfair, except in exceptional circumstances.

ACAS says in its non-statutory Guide that employees must not be punished for appealing and higher penalties

should not be imposed, because this may deter individuals from appealing.

Correcting earlier unfairness

A properly conducted appeal which considers the whole matter again can have the effect of correcting any

unfairness at earlier stages of the disciplinary process. For example, a dismissal might be unfair because the

employee was not told of all the allegations against him/her prior to the disciplinary hearing and, as a result,

did not put forward his/her defence.

However, if all the allegations have been clearly set out in writing prior to the appeal hearing, the employee

does then get a chance at the appeal to have a fair hearing. This can turn a dismissal from one which would

have been seen as unfair by an employment tribunal to one which is fair.

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Who is disabled under the Act? To be protected under the Act, workers have to show that they have a “physical or mental impairment which

has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”. People

do not lose their right to protection against discrimination because they have been able to control or correct

their disability - for example by medical treatment or the use of aids. So the effect of the treatment must be

disregarded when assessing whether or not someone is disabled. This provision does not apply to someone

who wears glasses or contact lenses.

People who have had a disability in the past are covered under the Act, as are people with progressive

conditions and anyone deemed to have a disability such as those who have been diagnosed with HIV

infection, cancer and multiple sclerosis.

Babies and children under the age of six who have an impairment are also covered. This is significant for the

purposes of associative discrimination so that the parent of a child with an impairment will be protected even if

the child’s condition does not yet have a substantial adverse effect on the child’s ability to carry out normal day

-to-day activities, but may do in the future.

How long is long-term?

To satisfy the definition in the Act, the disability must:

• Have lasted at least 12 months, or

• Be likely to last at least 12 months, or

• Be likely to last for the rest of the person’s lifetime (if less than 12 months).

The Act also covers people whose condition may involve periods of remission. Although the impairment may

no longer have an adverse effect, it will still be deemed to have that effect if it is “likely to recur”.

What are normal day-to-day activities?

The phrase “normal day-to-day activities” means those activities that are “normal” for most people in their

everyday lives, such as walking, driving, doing housework, shopping and forming social relationships.

13


What does the Act outlaw?

Direct discrimination

Direct discrimination is when someone is treated less favourably because of disability.

In order to determine whether someone is directly discriminated against a comparison has to be made with

someone without that disability but whose abilities and circumstances are the same or are not materially

different.

The definition is wide enough to cover those who are also discriminated against because they are perceived to

have a disability or because they are associated with someone who has a disability. Examples of direct

discrimination include:

• Someone who is not promoted because they are a wheelchair user.

• Someone who is refused flexible working to look after their disabled child although it has been

granted to other workers who do not have a disabled child.

• Someone who is prevented from attending a training session because they are thought to have

bi-polar disorder.

Indirect discrimination

Indirect discrimination arises when an employer applies a provision, criterion or practice which puts those who

share a disability at a particular disadvantage compared to those who do not share it and which the employer

cannot justify.

Employers can only justify indirect discrimination if they can show that it was "a proportionate means of

achieving a legitimate aim", for instance an employer may be entitled in some instances, to reject an

application with a severe back complaint. While heavy manual lifting is an essential part of the job although

the employer should always consider whether a reasonable adjustment to the role is available.

Discrimination arising from disability

This occurs when an employer treats a disabled person unfavourably “because of something arising in

consequence of” the disabled person's disability.

As with indirect discrimination, employers can justify the treatment if it can be shown to be a proportionate

means of achieving a legitimate aim.

Similarly an employer can defend a claim on the ground that they did not know, or could not be reasonably

expected to know, that the person has a disability.

14


What is positive action?

As well as the duty to make reasonable adjustments for disabled people, the Act allows employers to treat

someone with a protected characteristic more favourably than those who are not disabled during the process

of recruitment and promotion.

If employers "reasonably" think the person with a protected characteristic was disadvantaged because of that

characteristic (or there are fewer people with a particular protected characteristic employed), they can choose

that person over someone who does not have the characteristic provided that:

• The person is “as qualified” as the other candidate.

• The employer does not have a recruitment or promotion policy of treating people of the

underrepresented group more favourably.

• The more favourable treatment is a proportionate means of achieving a legitimate aim (the

legitimate aim being encouraging participation and overcoming disadvantage).

Any action taken by an employer must be proportionate to these aims. Examples include the provision of

training and encouraging applications for posts but the types of positive action measures employers can take

are not limited to these two examples.

These provisions are voluntary. An employee cannot bring a claim because the employer did not apply

positive action during the recruitment or promotion process, although they may still be able to bring a claim if

they were discriminated against during it.

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Duty to make adjustments When an employer knows or reasonably ought to know of the disabled person’s disability they are under a

duty to make a reasonable adjustment.

The duty arises when either a provision, criterion or practice of the employee or physical feature of the

premises places a disabled person at a substantial disadvantage in comparison to those who are not disabled.

The duty also applies when a disabled person would be put at a substantial disadvantage because an auxiliary

aid was not provided. In that case the employer must take reasonable steps to provide the auxiliary aid.

The duty on the employer is to take such steps as it is reasonable to have to take to avoid the disadvantage.

What is reasonable may depend on whether the step would remove the disadvantage, the cost and whether

there was any financial assistance available, for instance from the government-run Access to Work Scheme.

An employer cannot require a disabled worker to pay for the cost of any reasonable adjustment.

Examples of reasonable adjustments include:

• Altering working hours.

• Allowing time off for rehabilitation or treatment.

• Allocating some of the disabled person’s duties to someone else.

• Transferring the disabled person to a vacancy or another place of work.

• Giving or arranging training for the disabled person or others.

• Providing a reader or interpreter.

• Acquiring or modifying equipment or reference manuals.

• Adjusting the premises.

• Providing supervision or other support.

• Providing information in accessible formats.

Although the duty lies with the employer, it an be useful in most cases for the employer to make a

recommendation requesting a specific reasonable adjustment in order to ensure the employer has considered

this.

An employer who fails to comply with the duty to make a reasonable adjustment will be discriminating against

a disabled worker. An employer cannot argue that they were justified in not making the reasonable adjustment

where the duty arises.

Note that the application of an absence policy to people who are disabled may on the facts be capable of

placing the disabled person at a disadvantage so triggering the employer’s duty to make reasonable

adjustments to overcome that disadvantage. However, this does not mean that employers are always

required to ignore periods of absence caused by disability when applying their polices or that they would never

be entitled to take disability action where an employee’s absence became in the view of the employer. Each

case will turn its own focus and much will depend on whether it can be shown there was some possible and

indefinite action that the employer could have taken which would have assisted the employee in returning to

work. This is an area where early engagement by an employee will generally be useful and early specific legal

advice should be sought.

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Untaken Holidays

The law on Holiday leave entitlement is complex particularly around disability and it would always be

recommended that specific legal advice be sought however in broad terms an employee may be entitled to

“carry-over” their basic statutory entitlement to four weeks’ annual leave in each year if the employee does not

take this leave while on sick leave, whether through choice or inability to take leave because of ill-health. The

employer should also pay the employee for accrued annual leave entitlement on termination of employment.

If the employee is not permitted under his or her contract of employment to take annual leave during a period

of sick leave, the employee may be entitled to take annual leave in a subsequent leave year.

If the employee is permitted to take annual leave while on sick leave, he or she can choose to take annual

leave during the period of sick leave, but is not required to do so, and may take the annual leave at a later

date.

The relevant regulations (The Working Time Regulations) may be interpreted to permit a worker to take annual

leave within 18 months of the end of the leave year in which it was accrued where the worker was unable to

take annual leave because they were on sick leave and, as a consequence, did not exercise their right to

annual leave and it would not be consistent with the underlying purpose of sick leave (to enable recovery from

illness) and annual leave (to enable a worker to enjoy rest and relaxation) to compel a worker on sick leave to

take annual leave at the same time.

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Top issues for making reasonable adjustments to

deal with Workplace Absences and Disability

Discrimination

Remember the duty is on the employer and they are the ones who make the adjustment. However, it helps to

be able to identify adjustments to an employer so they cannot say later than these were not raised with them.

Make sure that adjustments are practical and effective. For example, having disability awareness training is a

laudable aim but if it doesn’t remove the disadvantage to the disabled person then it’s not of itself a reasonable

adjustment.

Produce and keep evidence to support the argument that adjustments can be made. For example, if asking

for alternative employment, keep job adverts and vacancy lists that show that viable alternative roles exist.

Start from the basis of adjustments to keep the member in their substantive role. For example, adjustments to

working patterns or practices, additional support from other staff, any additional equipment etc. If there is

nothing that would allow the member to retain their job then ask employer to look at alternatives.

Alternative employment is not just jobs of similar nature or on same grade but can include jobs on higher

grade or ones which involve different duties. If training is needed for member to do a different job then this is

part of the adjustment. It’s not enough for employer to place member on redeployment register or allow them

to apply for alternative roles. The duty is to make adjustments and this can require that the employer provides

a job and not just the chance to apply for one.

Harassment

This occurs when one person subjects someone else to unwanted conduct related to disability that has the

purpose or effect of violating a person’s dignity or of creating an intimidating, hostile, degrading, humiliating or

offensive environment.

The definition of harassment also applies to those subjected to unwanted conduct because of another

person’s disability. So, for example, an employee who is subjected to offensive comments about their disabled

daughter will be protected under the Act.

Unwanted conduct includes the spoken or written word, jokes, graffiti or other behaviour.

In determining whether the conduct amounts to harassment, the Tribunal will take into account the perception

of that person and whether it was reasonable for them to consider the comments or behaviour to be offensive.

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Victimisation

This occurs when an employer subjects a person to a detriment because they have done or may do a

protected act.

A protected act includes:

• Bringing proceedings under the Act, or previous discrimination legislation.

• Making allegations of a breach of the Act or previous discrimination legislation.

• Giving evidence or information in connection with proceedings that someone else has brought.

• Doing anything else such as raising a grievance or giving evidence in someone else’s grievance.

The person complaining of victimisation does not need to show they have a disability in order to bring a claim.

However, they do have to have acted in good faith when doing a protected act. An allegation of discrimination

which the person making knew to be false will not amount to a protected act.

What health-related enquiries can employers

make? An employer must not ask about a job applicant’s health or whether they have a disability until they have either

been offered a job or been included in a pool of successful applicants.

However, this is not a blanket ban and an employer can ask questions about whether a person has a disability

before offering a job to an applicant if it will help them to:

• Make a reasonable adjustment to the selection process.

• Decide whether an applicant can carry out a function that is essential to the job.

• Monitor diversity among applicants.

• Take positive action to help the disabled.

• Ensure that the candidate actually has the disability if the job genuinely requires the jobholder to

have a particular disability.

Is it easy to prove a claim? Someone complaining of discrimination has to prove, on the balance of probabilities, that their employer

discriminated against them because of their disability.

Tribunals are aware that it can be difficult for claimants to provide clear evidence of discrimination so once an

employee has established facts from which a Tribunal could conclude that there had been discrimination then

the burden shifts to the employer to show that they did not discriminate against them.

This is known as the reversal of the burden of proof.

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How do claimants gather information from their

employer? Workers can no longer use standard forms (the questionnaire procedure) when requesting information from

their employer about their complaint. They can still ask their employer to provide them with information, but

there is no obligation on the employer to provide it. Employment Tribunals have powers to grant requests for

documents or information in the course of an employment tribunal claim if they consider if appropriate to do so.

What remedies are available? There are three remedies available to a Tribunal :

• A Declaration that discrimination has occurred.

• Compensation.

• Limited recommendations.

Declaration

A declaration is a statement of the rights at the end of a claim, for instance that a worker has been subject to

direct discrimination.

Compensation

Compensation can be awarded for injury to feelings and financial losses, if there are any. There is no limit to

the amount of compensation which can include loss of earnings (past and future), loss of pension, interest

and any other outlays associated with the discrimination. The amount of compensation for injury to feelings

can vary widely. The person’s age and vulnerability may be considered, and also the severity of the

discrimination.

Claimants can also ask for compensation for personal injury if they have been seriously affected by the

discrimination, particularly in harassment cases which can lead to illness and depression. If so, claimants need

to produce a medical report to support their claim.

Recommendations

The Tribunal can make recommendations that will benefit the individual employee. If the employer fails to

comply with a recommendation, then the Tribunal may order the compensation to be increased.

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Access to Work Scheme This is Government backed scheme operated by the Department of Work & Pensions and is intended to

provide some practical advice and support to assist overcome work-related obstacles, it can also make

provide grants towards some extra employment costs.

Examples of the kind of help available through Access to Work could be:

A communicator, advocate or BSL interpreter for a job interview, if you have communication

difficulties.

Specialist equipment (or alterations to existing equipment) to suit your particular needs.

Alterations to premises or a working environment to make it more accessible

Help towards the additional costs of taxi fares if you cannot use public transport to get to work.

However, the fact that Access to Work funding is not available does not mean that your employer does not

have to make an adjustment; the Equality Act places a duty to make adjustments where a policy, criterion or

practice operated by them, or a physical feature of the workplace, places a disabled person at a

disadvantage. The employer must either make the adjustment or be ready to show that there was no

adjustment which would overcome the disadvantage that was reasonable for the employer to make.

You can get help if you are disabled or have a health condition that impacts your ability to work; and aged 16 or over and any of the following apply:

be in need of help at a job interview with an employer

be about to start employment or

be about to start a Work Trial

be about to start a Department for Education supported internship or BIS traineeship

be about to start self-arranged work experience or young person’s work experience

be in employment, whether as an employed or self-employed person

‘Disabled’ has the same meaning as in the Equality Act 2010. This defines disability as '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'.

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Access to Work can pay upto 100% of the approved costs, subject to a cap, for travel to work, a support

worker/reader or a communicator for support at job interviews if you are;

unemployed and starting a new job;

working for an employer and have been in the job for less than 6 weeks;

self-employed; or

setting up your own business through the new enterprise allowance.

If you have been in your job for 6 weeks or more when you first apply for help, Access to Work can pay a

proportion of the costs of support as follows:

Employers with less than 50 staff – Access to Work can pay 100% of the approved costs.

Employers with 50 to 249 staff – employer will have to pay the first £500 and Access to Work can

then pay 80% of the approved costs up to £10,000.

Large employers with 250 or more staff – employer will have to pay the first £1,000 and Access to

Work can then pay 80% of the approved costs up to £10,000.

Since 1 October 2015, if you make a new claim for help under the Access to Work Scheme you can only be paid a maximum yearly award limit of 1.5 times what is described as the national average salary – currently £40,800. This amount will be reviewed annually from April 2016.

If you were already getting Access to Work before the cap applied the level of your award will be protected until 1 April 2018 as long as your needs remain the same.

As this guide describes the Equality Act 2010 places a duty on an employer to make reasonable adjustments for disabled employees. Access to Work funding is not available to support these adjustments. In addition access to work will not fund items which are regarded as standard equipment, standard business costs or standard health and safety requirements.

Contact the Access to Work by calling: 0345 268 8489 (Textphone: 0345 608 8753). www.gov.uk/access-to-work/how-to-claim. You can also contact your local Jobcentre Plus office for advice and an application form.

Access to Work funding agreements can cover up to 3 years. Reviews will normally take place annually to assess if continued or further funding is required. As long as you can demonstrate the need for the funding you may continue to get it.

Note that the Access to Work Scheme in Scotland includes the Workplace Mental Health Support Service

advice line [0300 4568114]. This free and confidential support service is available to anyone with a mental

health condition who is absent from work or finding work difficult and is provided via Remploy in partnership

with Access to Work. It is aimed at helping people to remain in, or return to, their role. This service has been

designed to support those feeling depression, anxiety, stress or other mental health issues that are affecting

their work and is provided by trained and experience advisers who support mental health at work and provide:

Work focused mental health support for 6 months tailored to the needs of the user

Assessment of a person’s needs to identify suitable coping strategies

A personal support plan, listing the steps needed to remain in, or return to work

Ideas for adjustments in the workplace, or in working practices, that could help people to fulfil their role

Advice and help for employers on how they can support those who have a mental health condition.

http://www.gov.uk/access-to-work/how-to-claim

http://www.gov.uk/access-to-work/how-to-claim

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To benefit from this service people must meet the following criteria:

Be in permanent or temporary employment (attending work or signed-off sick)

Have a mental health condition (diagnosed or undiagnosed) that has resulted in workplace absence, or is making it difficult to remain at work

The service can also be accessed via Access to Work at their Operational Support Unit, Harrow Jobcentre Plus, Mail Handling Site A, Wolverhampton WV98 1JE Telephone: 0345 268 8489 / http://www.remploy.co.uk/info/20137/partners_and_programmes/227/workplace_mental_health_support_service

Work Choice Programme Work Choice is a separate DWP Government presently supported employment programme designed for

people who due to their disability, may find it difficult to find or keep a job subject to a requirement that they

work a minimum of 16 hours a week.

Work Choice in intended to enable people to find and retain work by identifying their needs and providing the

necessary support to fit their requirements.

You may qualify if:

You are disabled as defined by the Equalities Act 2010 and your disability means that you face

significant barriers to keeping a job.

In addition you may have:

Complex work-related support needs arising primarily from disability

Requirements in work which cannot immediately be overcome through the employer carry outing

out what are reasonable workplace adjustments

A need for support in work as well as help with finding work and cannot be helped through other

DWP programmes.

Work Programme is a general term for a number of DWP Schemes aimed specifically assisting long term job seeker allowance claimants to find employment by a number of different providers from the public and voluntary sector. The Government has announced that the Work Programme and Work Choice are due to be merged into a Work and Health Programme from 2017.

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Other Medical and Employment Support Services

in Scotland include:

Working Health Services Scotland advice line [0800 019 2211, option 3] is an NHS service that aims to

assist Scottish based self-employed and employees in Scotland of small enterprises employing less than 50

staff who are experiencing injury or ill health and having difficulty remaining at work.

A telephone interviewer will ask some questions about yourself, your work and your health condition. This

information will be passed to an NHS Case Manager. You would then be contacted by a Case Manager

within 2 working days of your referral. Your Case Manager will conduct an initial assessment of your

condition and work with you to design and agree a personal action plan for you. Depending on your

condition, you and your Case Manager can decide a course of action. You may be referred to physiotherapy

services, occupational therapy, counselling or to one of a range of services available in your Scottish Health

Board area.

Throughout your programme of treatment your Case Manager will be in regular contact with you to monitor

and review your progress. If you are still at work your Case Manager will assist you to remain at work. If you

are absent from work your Case Manager will discuss plans on how you can be helped to return to work.

Whether you are at work or absent from work the programme may last 2-12 weeks depending on your needs,

and on completion of the programme, the case manager will make contact to review progress and discuss

staying at work or return to work plans.

The programme is based on telephone case-managed multidisciplinary support for the employees' recovery.

It provides help and advice on a range of healthcare, employment, skills, housing and personal issues, for

example debt management, ensuring access to the most appropriate forms of support for the individual.

http://www.healthyworkinglives.com/advice

Healthy Working Lives Freephone advice line [0800 019 2211] can offer advice to both employers and

employees on a whole range of issues around health and the workplace, including stress management,

sickness absence management, the Fit Note, etc. Healthy Working Lives also offer free and confidential

workplace visits, offering advice on making the workplace healthier and safer: It is designed to offer

immediate, free and confidential help and information on any matter concerning health and wellbeing in the

workplace, including health and safety, occupational health and health promotion. It can help with issues

such as: stress management sickness absence management the Fit Note (replacing the Sick Note); risk

assessments; bullying and harassment; lone working; health surveillance; health & safety, smoking, alcohol

and drugs policies. http://www.healthyworkinglives.com/contact/adviceline

Musculoskeletal Advice and Triage Service advice line [0800 917 9390] offers advice and support on musculoskeletal issues and can include referral to physiotherapy services

To use this service you must be aged 16 or over Live in Ayrshire and Arran, Dumfries and Galloway, Grampian, the Highlands, Lanarkshire, Lothian or Tayside although it is planned to roll out to other Scottish Health Boards

Be registered with a GP. If you're not eligible, but need advice about a musculoskeletal problem, speak to your GP to find out if you can refer yourself directly to a local musculoskeletal service. http://www.nhsinform.co.uk/msk/overview/helpline/

http://www.healthyworkinglives.com/contact/adviceline

http://www.nhsinform.co.uk/msk/overview/helpline/

http://www.nhsinform.co.uk/msk/overview/helpline/

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Thompsons can do more for you and your family

At Thompsons Solicitors we offer a whole range of legal services which can support you and your family.

Injury

Thompsons’ award winning solicitors are experts in personal injury law. If you’re hurt at work, in a road traffic accident or anywhere call us. With Thompsons, if you have an accident you get: • A 100% no win no fee service

• Expert Solicitors who will fight to get the maximum compensation in the shortest possible time.

For accident advice or to make a claim CALL FREE on 0800 089 2060 or text “CLAIM” to 60155.

Accident Management Service

When you crash your car or motorbike there’s a lot to sort out like the hire of a replacement vehicle and organising repairs. If the crash wasn’t your fault, one simple call to Thompsons and we’ll do it all for you for free. With this free service you will get: •A like for like replacement vehicle delivered to your door within 24 hours.

•Your vehicle recovered and repaired.

•No win no fee legal representation to recover your losses.

For more information or to arrange your hassle free accident management service CALL FREE on

0800 089 2060 or text “INJURY” to 60155.

Bereavement Services

Thompsons is there for you and your family should the worst happen. Our expert bereavement services will give you clear peace of mind. We offer: •Wills

•An expert service dealing with all the complicated administrative and legal requirements after

death for no more than 3% of the estate’s value when death occurs.

For more information or to let Thompsons give you peace of mind should the worst happen CALL

FREE on 0800 089 2060 or text “EXECUTRY” to 60155.

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Workplace Disability Discrimination in Scotland January 2016

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