Disability

by Kate Russell

Disability discrimination - legal framework

According to official figures, around one in five people of working age are considered to be ‘disabled’ within the meaning of the disability discrimination legislation.

General principles

The Equality Act 2010 (EqA) makes it unlawful for employers to discriminate against disabled employees because of something arising in consequence of that disability. Disabled employees will no longer be required to establish that their treatment is less favourable than that experienced by other non-disabled employees. An employee must simply establish that unfavourable treatment is because of something connected with their disability.

For example, an employee who is dismissed for long-term absence arising from depression will no longer need to compare himself with a non-disabled long-term absentee. This means that it will be easier to prove that his dismissal was discrimination arising from disability, if his absence was caused by depression.

Employers will be able to defend disability discrimination claims successfully if they did not know and could not reasonably be expected to know that the employee was disabled or if they can establish that the treatment was a proportionate means of achieving a legitimate aim.

This topic concentrates on protection in employment.

The EqA says that it is unlawful for an employer to discriminate against a disabled person whom he employs

  • In the terms of employment which he affords him
  • In the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit
  • By refusing to afford him, or deliberately not affording him, any such opportunity

or

  • By dismissing him, or subjecting him to any other detriment.

An employer should therefore not discriminate in relation, for example, to the following: terms and conditions of service, arrangements made for induction, arrangements made for employees who become disabled (or who have a disability which worsens), opportunities for promotion, transfer, training or receiving any other benefit, or refusal of such opportunities, pensions, dismissal or any detriment.

Protection against unlawful discrimination starts at the selection stage, in other words before employment, continues all the way through employment and continues even after the termination of employment (for example, with regard to references).

Disabled people have rights under the EqA, as do people who have had disabilities but have fully or largely recovered.

The following people and organisations may have obligations under the act:

  • Employers – irrespective of size
  • The Crown (including government departments and agencies)
  • Employees and agents of an employer
  • Landlords of premises occupied by employers
  • People who hire contract workers
  • Trustees or managers of occupational pension schemes
  • People who provide group insurance schemes for an employer’s employees
  • Trade organisations.

Direct discrimination

Direct discrimination occurs when a person is treated less favourably because of his disability. For example, an employer does not employ a disabled person just because it does not want disabled people in its workforce.

It breaks down into three different sorts of treating someone ‘less favourably’ because of:

  • his own disability (direct discrimination)
  • a perceived disability (direct discrimination by perception)
  • his association with someone who is disabled (direct discrimination by association).

Indirect discrimination

This can arise where a provision, criteria or practice (PCP) is applied to all employees, but the PCP has the effect of disadvantaging someone who is disabled.

A disabled employee or job applicant claiming indirect discrimination must show how he has been personally disadvantaged, as well as how the discrimination has or would disadvantage other disabled employees or job candidates.

In some limited circumstances, indirect discrimination may be accepted if the PCP is necessary for the business to work and there is no reasonable adjustment that can be made. For example, an employer may reject an applicant with a severe back problem where heavy manual lifting is an essential part of the job.

Harassment

Harassment is unwanted language or conduct related to a person’s disability which has the purpose or effect, either of violating a person’s dignity or creating an environment which is distressing, humiliating or offensive for that person.

Example

J had been employed by Legoland for a number of years. He had become an ‘attractions team leader’. Following a motorbike accident, his left arm was withered, and required the use of a sling.

Legoland operated a long-service award scheme, whereby employees with three years’ service were given personalised models to mark their service. J was one of 58 employees presented with such a model at the first award ceremony. Of the 58 employees receiving awards, all but three employees received models which represented their jobs in some way, J and two HR employees being the exceptions. The two human resources employees were presented as a ‘pregnant female model with dark hair’ and ‘a tall dark-haired female model with glasses’, respectively. The model of J comprised a man in blue with his right arm in a sling, and was the only model that showed unhappy and other-than-normal features. The model also incorrectly showed the right arm in a sling rather than the left arm.

Shortly after the award ceremony, J went off sick and did not return. His consultant psychiatrist concluding that he ‘...is suffering from a depressive episode triggered by an insensitive experience at his place of work’, J complained of disability discrimination to the employment tribunal.

The case eventually came before the EAT, who considered whether or not the failure to identify the model of J in a work-related environment, thereby highlighting his disability, was an act of discrimination on the grounds of his disability.

It was agreed that a detriment exists if a reasonable employee would or might take the view that the treatment accorded to him or her had been in all the circumstances to their detriment; an employer discriminates against a disabled employee if it treats that employee less favourably than it would treat an employee who is not disabled for a reason which relates to that person’s disability, and treating a disabled employee in a different way to other employees in relation to a long service award was, in the appropriate circumstances, capable of being a detriment.

The EAT assessed the evidence which had been before the tribunal. All but three of the 58 models in question showed the recipient in a workplace context. In few of those cases, however, did the element relating to the workplace ‘necessarily relate to the individual personally’. For example, three other members of the attractions team received a model with a clipboard, a traffic cone and a ‘racer’s car’ respectively. Similarly, all four of the reservations personnel had received a model with a telephone, and all 12 of the food and beverage personnel had received a model showing a pizza in one hand and a coffee cup in the other.

The EAT concluded that if those workplace connections were appropriate, it was impossible to see why J’s model could not have been shown with a team leader’s radio. It went on: ‘...the only available explanation is that he was shown as he was because he was disabled and an identifiable model could be made by reference to his disability. A person who was not disabled occupying his position would not have been represented simply as a person in blue.’ In light of this evidence, the EAT ruled that the tribunal’s finding, to the effect that the lack of work-related items in the model was due to J’s workplace and work functions, rather than to his disability, was unsustainable.

Whether or not J had been subjected to a detriment, and discriminated against by this difference in treatment, had to be answered by reference to the perception that a reasonable employee would, or might, take of the treatment accorded to him. In the court’s view, a reasonable employee in J’s position would or might well have taken the view that he had been subjected to a detriment by the way in which he had been singled out from their colleagues at a substantial presentation ceremony to be identified by a (wrongly characterised) disability.

The EAT upheld J’s appeal, finding that he had suffered disability discrimination.

Note that a person who knowingly helps another to do something made unlawful by the act will also be treated as having done the same kind of unlawful act.

For example, a recruitment consultant engaged by an engineering company refuses to consider a disabled applicant for a vacancy, because the employer has told the consultant that he does not want the post filled by someone who is ‘handicapped’. Under the act, the consultant could be liable for aiding the company.

It is important to note that such claims will be subjected to an objective view so that claims are assessed to be reasonable and appropriate in respect of their individual circumstances.

Victimisation

Victimisation is less favourable treatment of an individual consequent upon an earlier complaint of unlawful discrimination.

Example

In any misconduct case, the tribunal must be satisfied that:

  • the employer had a genuine belief in the employee’s guilt;
  • that belief was reasonable for the employer to hold;
  • it was reached after the employer had carried out as much investigation as was reasonable in the circumstances.

Mr Benali was employed as a pastry chef by The Carmelli Bakery, a family-run business licensed by Jewish authority Kedassia to sell kosher food. The employer was subject to regular, often unannounced, inspections into its food preparation practices, and employees were apparently aware that the employer could lose its licence if it did not adhere to the strict requirements of Kedassia.

Mr Benali suffered from sciatica and had a long period of sickness absence in 2007-2008. On his return to work, a dispute arose surrounding his requests for reasonable adjustments. He issued tribunal proceedings for disability discrimination, which his employer settled. Matters did not improve, however, and the employer continued to ignore Mr Benali’s continued requests for adjustments.

In June 2011 one of the owners, Mrs Carmelli, found a Tesco receipt for two jars of non-kosher jam. Mrs Carmelli asked her son, David Carmelli, to conduct an investigation. David discovered that one of the cleaners had bought the jam. The cleaner claimed that Mr Benali had told him to buy it from Tesco, and had told him that the purchase was authorised by David Carmelli himself. Another employee told David that he had seen Mr Benali with the jam. David wrote a statement denying that he had given his authority to buy the jam and concluded the investigation within an hour. He did not interview Mr Benali, nor did he interview any other members of staff.

Mrs Carmelli held a disciplinary hearing a week later. Mr Benali admitted to having used the jam knowing it was not kosher, but claimed that he had been told by management on previous occasions to use whatever was available when there was a shortage. He maintained that David had told him to ask a cleaner to go out and buy the jam, but he denied sending the cleaner to Tesco.

Mrs Carmelli summarily dismissed Mr Benali without further investigation. His appeal was dismissed by Mr Carmelli, who considered the appeal process to be no more than a formality.

Mr Benali claimed unfair dismissal and victimisation.

The inadequate investigation surrounding the disciplinary process convinced the tribunal that the employee’s misconduct was not the main reason for his dismissal. It held that Mr Benali’s dismissal did not arise from the act of gross misconduct, but rather amounted to victimisation. It is unlawful victimisation for an employee to suffer detriment or dismissal because of a protected act. In this case, the protected acts included Mr Benali’s earlier discrimination claim and his on-going requests for reasonable adjustments in relation to his disability, which his employer had ignored. The tribunal held that Mr Benali was considered a ‘problem employee’ because of these protected acts, which ultimately affected the management of the disciplinary process and the sanction imposed.

The tribunal made an award for unfair dismissal which included a basic award and one year’s loss of earnings. It also awarded £14,000 injury to feelings arising out of the victimisation.

Even where the employee admits an act of gross misconduct, it is incumbent on the employer to carry out a reasonable, impartial investigation, which includes further investigation into any issues raised in the disciplinary hearing or appeal, to justify the penalty imposed. Where there are failings in this regard, it is open to the tribunal to consider a possible underlying reason for the dismissal - in this case, an act of victimisation - and compensate the claimant accordingly.

Associative Discrimination

Associative discrimination is where a person is treated less favourably because of an association with another person who has a protected characteristic under the Equality Act 2010 (other than marriage and civil partnership, and pregnancy and maternity). The person who brings an employment tribunal claim would not have the protected characteristic himself. Associative discrimination is limited to claims of direct discrimination and harassment.

Example

A woman who is not promoted because she has a disabled child and her employer thinks that she could not devote sufficient time to increased duties could bring a direct disability discrimination claim in an employment tribunal.

The protection was limited to claims of direct discrimination and harassment.

The wording of section 19 of the Equality Act requires a claimant to first establish that he has a relevant protected characteristic before he can pursue a claim for indirect discrimination. However, in one judgment, the ECJ confirmed that this starting requirement was not necessary.

Example

The Claimant ran a shop in a district of Bulgaria predominantly populated by people of Roma descent and ethnicity. She is not Roma herself. She presented a claim against an electricity company who fitted electricity meters in the area and around the country. In many districts, the company fitted meters at a height which allowed users to monitor their own usage. However, in the areas where the Claimant lived, the meters were fixed at a height of 6 meters. The company argued that this was a direct result of a number of cases of people tampering with the meters in that areas, or illegally connecting to the electricity supply. The Claimant argued the practice of fitting meters in her area so high, and preventing people from monitoring their electricity use had a disproportionate affect upon the Roma people. She also claimed that although she was not Roma herself she identified with the people of the district and endured the same disadvantage.

The ECJ accepted that the Claimant should be allowed to pursue the claim. Although the Court never used the phrase “discrimination by association” or “associative discrimination”, they accepted that Roma ethnicity was the reason that the Claimant had suffered a particular disadvantage. Irrespective of the fact that she was not Roma herself, she shared the same disadvantage, and should be afforded the same protection from the discriminatory act.

Perceptive Discrimination

Perceptive discrimination refers to discrimination based on a perception that an individual is a member of a relevant protected group.

Example

Mrs Coffey had been employed as a staff member of Wiltshire Constabulary since 2009. In 2011 she applied to become a Police Constable, and as part of the process underwent a medical at which it was discovered that her hearing fell below the Home Office standard required for police recruitment. Despite this finding, Wiltshire Constabulary arranged for Mrs Coffey to undergo a functionality test, which she passed. As a result, she was allowed to take up the position of Police Constable, a role she fulfilled without any undue problems.

In 2013 Mrs Coffey applied to transfer to Norfolk Constabulary. As part of this process she again underwent a medical, and again her hearing was found to be below the standard required for police recruitment. However, on this occasion Norfolk Constabulary rejected her application to transfer on the basis that they considered she may have to be put on restricted duties in the future due to her hearing. Mrs Coffey brought a claim for direct disability discrimination.

The employment tribunal found that Mrs Coffey had been subjected to direct discrimination, on the basis that Norfolk Constabulary refused her request to transfer because it perceived her to be potentially disabled due to a degenerative hearing condition. On appeal the EAT agreed, finding that even though Mrs Coffey’s hearing problem did not make her disabled and was not likely to do so in the future, the fact that Norfolk Constabulary had acted on a perception that Mrs Coffey may become disabled in the future meant that direct disability discrimination had occurred.

The Coffey case shows that employers can be held to have directly discriminated on the basis of disability, not only where they perceive a disability to be present, but where they anticipate a disability in the future. Whether their perception is correct or not is irrelevant.

It is best to avoid making assumptions about someone’s abilities and instead rely on a proper assessment of their actual abilities. Norfolk Constabulary would have avoided expensive litigation if it had followed the medical advice to assess Ms Coffey’s actual abilities to perform the job. By instead relying on an assumption that the condition might deteriorate in the future, Norfolk Constabulary unwittingly discriminated against Ms Coffey.

Failure to make ‘reasonable adjustments’

As part of the protection, employers may have to make reasonable adjustments if their employment arrangements place disabled people at a substantial disadvantage compared with non-disabled people.

An employer failing to make ‘reasonable adjustments’ for a disabled job applicant or employee is one of the most common disability claims.

If adjustments are ‘reasonable’, an employer must make them to ensure its workplace or practices do not disadvantage a disabled job applicant or employee already with the organisation.

Make sure you have rules in place to prevent disability discrimination in:

  • recruitment and selection
  • determining pay, terms and conditions
  • sickness absence
  • training and development
  • promotion
  • dismissal
  • selection for redundancy.

The legislation does not prevent employers from treating disabled people more favourably than those without a disability, though it does not give non-disabled people the equivalent opposite rights: for example, if they are not selected during the recruitment process, because they do not have a disability.

Compensation

If a person with a disability suffers unlawful discrimination in the workplace, he can complain to the tribunal. There is no upper limit on compensation for discrimination, so an employer’s unjustified discrimination or failure to make reasonable adjustments can be extremely costly.

Example

B was demoted after requesting to have her hours changed. She then went on sick leave with depression, never to return to work. She was dismissed and complained successfully of unfair dismissal.

She was awarded damages in the region of £400,000 by way of compensation, to reflect the fact that her ability to work and employment prospects had been badly affected by the discrimination that had taken place.

It is a general rule in the discrimination legislation that people who have been discriminated against can claim compensation for the losses they suffer as a result of the discrimination, without having to satisfy an additional test that the losses were reasonably foreseeable. So, for example, in Essa v Laing Ltd [2004] Mr Essa’s compensation was not limited to that which was reasonably foreseeable. Although Mr Essa’s case involved the consequences of racial discrimination, the same principle would apply to a case of disability discrimination.

Example

E was a black Welshman, born and brought up in Wales with an interest in amateur boxing. He had represented his country many times in amateur championships. During the summer of 1999 he worked as a labourer at the construction site of the Millennium Stadium in Cardiff. During a discussion about the allocation of work he was racially abused by P, an employee of L Ltd. In consequence, E left his job. He suffered from severe depression following the incident. He was unable to look for other work and lost interest in boxing.

The tribunal computed the compensation on the basis that the employers are only liable for such reasonably foreseeable loss as was directly caused by the discriminating act. Although it was reasonable to expect L Ltd to have foreseen that E would experience some distress because of the abuse from P ‘they could not have reasonably foreseen the extent of E’s reaction to it’.

They added that they found E’s reaction to the abuse to be ‘so extreme as to have been irrational’ and decided that L Ltd were only liable to pay compensation for injury to feelings and three weeks’ loss of earnings, as that was the length of his contract for work at the Millennium Stadium. He was awarded £5,000 for injury to feelings and just over £500 for financial loss.

The Court of Appeal disagreed with this approach and found that people who have been discriminated against can claim compensation for the losses they suffer as a result of the discrimination, without having to satisfy an additional test that the losses were reasonably foreseeable. E’s compensation was increased significantly to take his actual losses into account.

Vento Guidelines

From April 2018, the compensation which successful claimants can recover in discrimination cases will increase as the Vento guidelines which employment tribunals follow when deciding how much to award for injury to feelings were amended to reflect recent increases in inflation as measured by the RPI index.

Unlike in unfair dismissal cases where only economic loss is recoverable, successful claimants in discrimination and harassment cases can recover compensation in the employment tribunal for non-economic loss – otherwise known as “injury to feelings awards.”

Although there is theoretically no limit on the compensation which may be awarded in discrimination and harassment cases, employment tribunals do have to follow certain guidelines.

In respect of claims made on or after 6 April 2018, the Vento bands are increased as follows:

  • lower band: £900 to £8,600 (less serious cases);
  • middle band of £8,600 to £25,700 (cases that do not merit an award in the upper band); and
  • upper band of £25,700 to £42,900 (the most serious cases).

For the most exceptional cases it is possible, although highly unusual, to recover more than £42,900.

It is expected that the bands will now be increased each year in line with the RPI index.