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Within the Equality Act of 2010, “The Act”, legislation provides protection to employees to ensure that they are not discriminated against due to a disability, therefore making it unlawful for employers who discriminate against employees due to their mental or physical disability. Within The Act, disability discrimination is where an employee is treated unequally to their colleagues surrounding them due to a disability they have, a perceived disability or the disability of someone whom they are associated with.

Employees can be discriminated due to their disability in a number of ways:

  • Direct discrimination
  • Indirect discrimination
  • Discrimination arising from a disability
  • Failure to make reasonable adjustments
  • Harassment
  • Victimisation
  • One or more of the above

Who can be affected by disability discrimination?

  • Employees (fixed and indefinite)
  • Job applicants
  • Trainees
  • Contract workers
  • Directors
  • Partners
  • The self-employed

Disability discrimination can take place at all stages of employment (including recruitment, promotion, transfer opportunities, dismissal).

Direct Disability Discrimination

Direct disability discrimination refers to an employer treating an employee differently and favouring another employee in a similar situation because they do not have a disability.

An example of direct disability discrimination

  • During the application stage the applicant makes the employer aware that he/she has a disability and subsequently the employer decides not to interview the applicant even though he/she is the best candidate to be interviewed.

Indirect Disability Discrimination

Indirect disability discrimination can occur where there is a workplace rule, policy or procedure that is applicable to all employees, however disadvantages a disabled employee. When claiming for indirect discrimination the claimant must show evidence of how they have been personally disadvantaged; in addition to providing evidence of how the discrimination would or has led to the disadvantage for other disabled employees.

An example of indirect disability discrimination:

  • An employer has decided to install a new online recruitment process, however applicants with visual impairments are not able to access it and screen reading software is not compatible. Therefore, if an alternative way of providing this process is not provided for visually impaired applicants then disabled applicants are disadvantaged.

Indirect disability discrimination, in some circumstances, may be justified in law. The organisation in question must provide evidence that the indirect disability discrimination is a “proportionate measure of achieving a legitimate aim”. Therefore, showing the discrimination is of rational business needs.

Discrimination arising from a disability

Discrimination arising from a disability refers to discrimination taking place due to an aspect linked with an employee’s disability. When claiming about this discrimination the claimant does not have to compare the treatment they have received to how someone else is being treated.

An example of discrimination arising from a disability

  • An employer discriminates against an employee who regularly makes spelling mistakes due to the employee’s dyslexia. It is the employer’s duty of care to understand about the disability and react accordingly.

Failure to make reasonable adjustments

Under The Act employers have the obligation to make sure that employees with a disability can access their work with the same amount of ease as non-disabled employees, thus being referred to as ‘duty to make reasonable adjustments’. Therefore, if reasonable adjustments are not made discrimination takes place.

An example of failure to make reasonable adjustments:

  • An employer decides to move office location, one that is of a higher evaluation and has a number of steps to the front door. However, the employer does not put provisions in place for an employee to get to the top of these steps as he/she requires a wheelchair.

Harassment

Harassment occurs when an employer treats an employee in a way that makes the employee feel humiliated, offended and/or degraded. Harassment can never be justified, however, if the employer can show that it put steps in place to prevent the harassment taking place, a harassment claim will not be able to be made against the employer. The claim will have to be made against the harasser. Furthermore, under The Act employees are now able to hold employers liable for third party harassment from clients, customers, suppliers or patients.

Examples of harassment within disability discrimination:

  • An employee is called names due to his/her disability.
  • Negative or offensive remarks are made regarding an employee’s disability.
  • The refusal to work with and the exclusion of a disabled employee.

Victimisation

Victimisation occurs when an employee has been treated badly due to a complaint made regarding disability. It can, therefore, occur when directly making a complaint regarding disability or when supporting an employee through making their disability complaint.

An example of victimisation with disability discrimination

  • The employer is threatening to put an employee up for review due to their complaint regarding disability discrimination.

Circumstances where disability discrimination is allowed to take place

Under The Act there are certain circumstances where it is allowed for employers to discriminate against employees due to a disability. The allowing of discrimination is called an occupational requirement which entitles an employer to specify their need for a particular protected characteristic in order for their business to run. However, the employer must show evidence of the genuine need for the protected characteristic.

Contact KLG – Disability Discrimination Lawyers in London, Reading, Slough, Watford, Maidenhead & Henley

If you feel that you have been discriminated against regarding a disability, please get in touch with Kalra Legal Group on 0808 1685860 who offer a free 30 minute no obligation consultation with an employment lawyer who will advise you on the next steps to make.

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