Disability discrimination

comparator

What is disability discrimination?

Disability is a protected characteristic under Section 6 of the Equality Act 2010 (EQA 2010). You have a disability if you have an impairment that has a substantial and long-term adverse effect on your ability to carry out normal daily activities. Section 39 EQA 2010 makes it unlawful for an employer to discriminate against disabled people who are;

  • actual and prospective employees;
  • ex-employees;
  • apprentices;
  • some self-employed workers;
  • contract workers;
  • actual and prospective partners in a partnership or a limited liability partnership; and
  • people seeking or undertaking vocational training.

 

What is a disability under the Equality Act 2010?

In order to have the protection of EQA 2010, your disability must fall within the definition in the EQA. Section 6(1) says that a person has a disability if that person has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities. This is the statutory definition of disability. You must apply each aspect of the definition to your condition in order to make sure that you are covered by the Act.  Schedule 1, Part 2 EQA 2010 contains the statutory test for deciding whether a person has a disability for the purposes of the Act. The statutory test is explained in the EHRC publication – Guidance on matters to be taken into account in determining questions relating to the definition of disability has important guidelines to helping you in determining whether you are covered by the Act.  This guidance has the same status as the ACAS Codes and Schedule 1, paragraph 12 says that the Employment Tribunal must take account of it.

 

What is my employer NOT supposed to do under the Equality Act 2010

You can sue your employer, your employer’s agent, contractor and your colleagues for disability discrimination in the employment tribunal. You don’t need two years’ service to sue for disability discrimination, and have these rights at the point of recruitment, before you have even started the job. There are six types of disability discrimination which are prohibited under EQA 2010. These are;

  • Failure to make reasonable adjustments
  • Direct Discrimination
  • Indirect Discrimination
  • Discrimination arising from disability
  • Harassment
  • Victimisation

People who used to have a disability are also protected under section 6(4)Section 60 prohibits employers from making enquiries about health and disability before you start the job. Part 8 EQA 2010 provides broad headings of other prohibited conduct that your employer must not carry out. Section 111 makes it unlawful to instruct, cause or induce another person to discriminate, harass or victimise a third person. The section provides a remedy for the person who receives the instruction and the intended target of the prohibited instruction whether or not the instruction is carried out, provided the recipient or intended victim suffers detriment as a result of the instruction. Section 112 makes it unlawful to help another person to discriminate.

 

What you can do about disability discrimination

There is no need to tolerate disability discrimination at work, when there is such an effective law protecting you from it. The law is only useful if you use it. If you are facing discrimination because of your disability at work, you must first raise a formal grievance with your employer, to give your employer an opportunity to put things right. At the same time, you can submit a discrimination questionnaire to your employer to help you collect evidence about the disability discrimination. If you have already been fired and you think your dismissal was connected to or because of your disability, you should write a Letter before Claim to your employer within three months of your dismissal. If the grievance does not resolve the matter, you should contact the free ACAS Early Conciliation service for assistance. There are strict time limits for submitting a claim to the Employment Tribunal. The time-limit is usually three months less one day for each act of disability discrimination.   Contact Employee Rescue if you need help doing any of this.

 

 

Failure to make reasonable adjustments

Under section 39(5) EQA 2010, your employer has a duty to make reasonable adjustments where you are put at a substantial disadvantage in comparison with your colleagues who are not disabled in relation to a relevant matter. Section 20 says that your employer must make reasonable adjustments for;

Provisions, criteria or practices, including company policies


Physical features, such as the layout of and access to workplaces


Provision of auxiliary aids, including providing information in an accessible format such as Braille, large print or email

Schedule 8 of the Act expands further on your employer’s obligations to make reasonable adjustments.

An Access to Work Grant can help you pay for practical support if you have a disability. Your employer only has to make adjustments where they are aware (or should reasonably be aware) that you have a disability. When you have made a determination that you have a disability under the EQA 2010, you must let your employer know.

 

Direct discrimination

Section 13 says that direct discrimination is where your employer treats you less favourably than they treat others at work because;

  • of your disability.
  • someone thinks you are disabled. This is known as discrimination by perception.
  • you are connected to a disabled person, or someone wrongly thought to be disabled. This is known as discrimination by association.

Less favourable treatment means you have been treated differently to someone else who isn’t disabled and you’re worse off because of it.  Section 24 says that it is irrelevant who the person discriminating against you is, so a person cannot say that they could not possibly have discriminated against you because they are also disabled. Being treated unreasonably on its own will not amount to direct discrimination. If your employer is able to show that they would have treated all workers just as badly, then there will have been no less favourable treatment and so, no direct discrimination.

The comparator in direct disability discrimination

To get around this, you need to compare yourself with an actual or hypothetical person in the same situation as you, but who does not have your protected characteristic of disability (the comparator). This is how you show that you have been treated less favourably than everyone else. If there is no one to compare yourself to in the workplace, you can ask the employment tribunal to compare you to a hypothetical comparator. Section 23(2) says that the relevant circumstances of the comparator and the disabled person, including their abilities, must not be materially different. An appropriate comparator will be a person who does not have the disabled person’s impairment but who has the same abilities or skills as the disabled person (regardless of whether those abilities or skills arise from the disability itself).

Your employers defence for direct discrimination

Once you have proved direct discrimination, your employer will have no defence to it.  This was confirmed by the House of Lords in Watt (formally Carter) v Ahsan [2007]. 

Contact Employee Rescue if you believe you are being or have been directly discriminated against at work

 

Indirect discrimination

Section 19 defines indirect discrimination as being where an apparently neutral policy, rule, practice or guideline is applied generally but particularly disadvantages transsexual people. This policy, rule, practice or guideline is called “provision, criterion or practice” (PCP) in the Act.

The pool for comparison

The PCP applies to a certain group of people in the same way no matter who they are. Within this group, some people with a particular protected characteristic may be put at a particular disadvantage by the PCP.  To prove indirect discrimination, you must show that the PCP disadvantages or would disadvantage people who share your protected characteristic. The Employment statutory code of practice says that; “…. the pool should consist of the group which the provision, criterion or practice affects (or would affect) either positively or negatively, while excluding workers who are not affected by it, either positively or negatively.”

Your employers defence for indirect discrimination

Your employer can defend indirect discrimination if they are able to prove that PCP is a “proportionate means of achieving a legitimate aim”. The courts carry out a balancing exercise between the employer’s need to use the PCP and the discrimination caused by the PCP. The Employment statutory code of practice says that the PCP should be legal, not discriminatory in itself and must represent a real, objective consideration to be regarded as a legitimate aim.

Contact Employee Rescue if you believe you are being or have been indirectly discriminated against at work

 

Discrimination arising from disability

Section 15 EQA 2010 makes it unlawful for your employer to treat you less favourably because of something “arising in consequence of” your disability, where your employer knows, or could reasonably be expected to know, that you have a disability. You don’t need a comparator. Your employer can defend this by proving that the discrimination was a proportionate means of achieving a legitimate aim.

 

Harassment

There are three kinds of harassment defined in section 26(1) EQA 2010.  The specific kind of harassment that applies to disability is behaviour that violates your dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment for you at work. Unwanted conduct includes “…. spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour”. – Employment Statutory Code of practice 

Harassment may occur over a period of time through a series of relatively minor incidents of harassment or it may occur through one blatant incident. In either case you will have to prove that your working environment has been affected in such a way and to such a degree as to violate your dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for you.  Under the Protection from Harassment Act 1997, an employer may be vicariously liable for a course of conduct by one of its employees that amounts to harassment under the Act.   Section 40 makes it unlawful for an employer to harass an employee or an applicant for employment, and section 41 makes it unlawful for a principal to harass a contract worker.

Victimisation

Section 27 makes it unlawful for your employer to punish you because you have complained about discrimination. Victimisation is defined as subjecting you to a detriment because your employer believes that you have done or may do a “protected act”. Protected acts are;

  • bringing proceedings under the Equality Act 2010 – s27(2)(a)
  • giving evidence or information in connection with proceedings under the Act- s27 (2)(b)
  • doing any other thing for the purposes of or in connection with the Act – s27(2)(c)
  • making an allegation (whether or not express) that your employer or another person has contravened the Act – s27(2)(d)
  • seeking or making a relevant pay disclosure, or obtaining information in a relevant pay disclosure – s77(4) 

Section 77 says that no matter what your contract says, you can talk about pay with anyone if you want to find out whether there is a connection between your pay and having (or not having) a protected characteristic. These discussions are called “relevant pay disclosures”, and you should not be discriminated against because of it.  Unlike direct discrimination, there is no comparator in victimisation. You just need to show that you were victimised because of a reason listed above.

 

Who are the people who should not discriminate against me at work?

Your employer

Sections 3940 and 83(4) make your employer liable for discrimination before, during and after employment. Before employment, employers must not discriminate against or victimise job applicants in the arrangements they make for deciding who should be offered employment, the terms on which they offer employment, or by not offering employment because of an applicant’s disability. During employment, your employer should not discriminate against or victimise you as to the terms of your employment, in the way they make access to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service, by dismissing you or subjecting you to any other detriment. A detriment is anything which might cause you to change your position for the worse or put you at a disadvantage, for example, being denied training or promotion. Section 108 applies the prohibition after your employment has ended.  The EHRC Guide for employers – “What equality law means for you as an Employer: dismissal, redundancy, retirement and after a worker has left” provides detailed guidance on your employer’s responsibilities.

 

Your colleagues

Your employer is also liable for discrimination done by your colleagues in the course of their employment, whether or not your employer knew or approved of it. Section 109 EQA 2010 states that anything done by an employee in the course of employment must be treated as also done by the employer. This is called “vicarious liability“.  Section 110 expressly provides that an employee will be personally liable for acts of discrimination, harassment or victimisation carried out against other workers during the course of his or her employment. Section 109(4) says that the only defence an employer has is if they are able to prove that they took all reasonable steps to stop that particular conduct or other behaviors like it from happening. The words “in the course of employment” means things that your colleagues do whilst they are doing their job and has a wide meaning. It includes acts in the workplace and may also extend to circumstances outside such as work-related social functions or business trips abroad. For example, an employer could be liable for an act of discrimination which took place during a social event organised by the employer, such as an after-work drinks party. The Court of Appeal described the phrase in the case of Jones v Tower Boot Company Limited [1997],  and said that it should be interpreted in the broad sense in which it is employed in everyday speech. It covers prohibited conduct which happens outside work as long as there is a direct link to work for example during a work trip, or party.  The application of the phrase would be a matter of fact for the Employment Tribunal to decide. This means that you can sue your colleagues AS WELL AS your employer for discrimination, and your colleague will have to pay you compensation if found liable by the Employment Tribunal.  In Miles v J. Gilbank [2006],  Ms. Miles personally had to pay Ms. Gilbank £25,000 for vicious and inhumane acts which were sustained and personally encouraged by Ms. Miles who was the manager.

 

Agents

Section 109 makes your employer liable for any discrimination done by your employer’s agents while acting under your employer’s authority. Agents include recruitment agencies and occupational health services. Here your employer is known as “the principal”.  It makes no difference whether your employer knew about the behaviour or approved of it. In Taiwo Lana v Positive Action Training in Housing Ltd (PATH) [2001], PATH placed Ms. Lana with Walker Management as a trainee quantity surveyor. She was expected to be a trainee from 1 October 1998 until 30 September 1999. The placement was effected by two contracts. The first contract was between Ms. Lana and PATH, the second between PATH and Walker Management. When Walker Management found out that Ms. Lana was pregnant they terminated her contract. PATH then terminated its training contract with Ms. Lana because they said they did not have any work for her. The Employment Appeal Tribunal (EAT) said that PATH was liable because they had agreed to provide Taiwo with work experience, and contracted with Walker Management (which was their agent) to provide her with the work experience placement.

 

Third Parties

Your employer can also be held liable for the discriminatory actions of a third party who is not an employee, if your employer does not intervene or stop the behaviour because you are a disabled person. In the case of Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003]  the House of Lords said that an employer will not be liable for in such a situation unless the reason for the employer’s failure to take action is related to the employee’s protected characteristics, or the third party was acting as the employer’s agent.

 

Trustees and managers of occupational pension schemes

Discrimination, harassment and victimisation because of disability by trustees and managers of occupational pension schemes are also prohibited by section 61.

 

Discrimination in other work relationships

The EQA 2010 also covers work situations where your employer is different from the company or organisation that you actually work for. This company or organisation is called the “principal”. Section 41(5) describes the principal as a person who makes work available for an individual who is employed and supplied by another person (whether or not that other person is a party to the contract). An individual who works under such an arrangement is called a “contract worker”. Section 41(7) describes a contract worker as a person who is supplied to the principal and is employed by another person who is not the principal. The worker must work wholly or partly for the principal, even if they also work for their employer, but they do not need to be under the managerial power or control of the principal. An example of such a situation is where you are supplied by an employment agency. The employment agency is legally your employer and sends you out to work for another company (the principal). Contract workers also include employees who are seconded to work for another company.

Section 41 protects contract workers in the same way as employees are protected against discrimination, harassment and victimisation.  The principal (the end-user) and your legal employer both have obligations not to carry out any prohibited conduct.   It is unlawful for a principal to discriminate against or victimise a contract worker;

  • in the terms on which the principal allows the contract worker to work;
  • by not allowing the contract worker to do or continue to do the work;
  • in the way the principal affords the contract worker access to benefits in relation to contract work, or by failing to afford the contract worker access to such benefits; or
  • by subjecting the contract worker to any other detriment.

 

Others

There are special provisions setting out the circumstances in which other bodies may be liable for discrimination, harassment and victimisation, including:

 

My employer is a public authority. Do they have extra responsibilities?

Section 149, is the public sector equality duty. It says that public authorities should have due regard to the need to eliminate discrimination, harassment and victimisation against disabled people, to advance equality of opportunity and foster good relations between disabled people and others.

 

Situations where your employer CAN lawfully discriminate against you 

Occupational Requirements

Schedule 9 paragraph 1 allows discrimination in recruitment, opportunities for promotion, transfer or training, or dismissal where there is an occupational requirement for the job not to be done by a disabled person. If an employer can show that a particular protected characteristic is central to a particular job, then the employer can insist that only someone who has that particular protected characteristic is suitable for the job. Your employer can only do this if it’s a proportionate means of achieving a legitimate aim, and there is evidence that you are a disabled person, or your employer has reasonable grounds to believe that you are a disabled person.

Chapter 13 (page 174) of the Employment Statutory Code of Practice says that any exception should be interpreted restrictively, and gives examples of when and how the exception can be applied.  Where an exception allows discrimination in relation to one protected characteristic, employers must ensure that they do not discriminate in relation to other protected characteristics.

 

Organised Religion

Schedule 9 paragraph 2 allows an occupational requirement where employment or appointment to a personal or public office is for organised religion. The employer will need to prove that;

  • the employment is for the purposes of an organised religion;
  • the application of the requirement engages the compliance or non-conflict principle; and
  • the person to whom the employer applies the requirement does not meet it, or the employer has reasonable grounds for not being satisfied that the person meets it

Religion or belief

Schedule 9 paragraph 3 allows an occupational requirement where the employer has an ethos based on religion or belief and the employer can prove that;

  • the requirement of having a particular religion or belief is an occupational requirement;
  • the application of the requirement is a proportionate means of achieving a legitimate aim; and
  • the person does not meet the requirement, or the employer has reasonable grounds for not being satisfied that the person meets the requirement

Armed forces

Schedule 9 paragraph 4  excludes service in the armed forces from the employment provisions on disability. This exception does not extend to dismissal or any other detriment.

 

National security

Section 192 allows discrimination where the purpose is to safeguard national security if the acts are proportionate for that purpose.

 

Insurance 

Schedule 9 paragraph 20 allows employers to treat disabled people differently in relation to an annuity, life insurance policy, accident insurance policy or similar matter involving the assessment of risk if the different treatment is done by reference to reliable actuarial or other data and the treatment is reasonable in all the circumstances.

 

Best of the web

ACAS – Disability Discrimination; Key Points for the workplace

Disability Discrimination; Obligations for employers

Disability Discrimination

CAB –    Disability Discrimination

EHRC –  Disability Discrimination

MIND – Disability Discrimination

Epilepsy Action – The Different Types of Disability Discrimination

Worksmart – Disability Discrimination

Health and Safety Executive – Workplace Adjustments

 

Some Support Organisations

Business Disability Forum

Disability Law Service

Disability Rights UK

MIND

Scope

Disabled Living Foundation

Remploy

Disability Now

Disability Wales

Treloar Trust

The Citizen On-line

Astro Brain Tumor Fund

Epilepsy Action

The Shaw Trust

 

Disclaimer 

This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided free of charge for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this update. Further specialist advice should be taken before relying on the contents of this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form without the prior permission of Employee Rescue Ltd.

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