I f you are disabled and facing discrimination at work you should be aware of the Equality Act 2010 which outlaws disability discrimination. It is unlawful to:
- Treat you as an employee or you as a job applicant unfairly on the grounds of your disability.
- Treat you as an employee/or as a job applicant unfairly for a reason relating to your disability.
- Fails to comply with its duty to make reasonable adjustments for an you as an employee/ job applicant.
You will be defined as being disabled if you have a physical or mental impairment having a substantial and long term effect on your ability to carry out normal activities.
Your employer has a duty to make reasonable adjustments to their premises, practices and procedures to prevent disabled employees from being put at a substantial disadvantage compared with non-disabled workers.
Whether physical impairment was “likely” to recur – if so Claimant was “disabled”
In the case of SCA Packaging Ltd -v- Boyle and The Equality and Human Rights Commission, decided that “likely” to recur meant “could well happen” rather than “probable” or “more likely than not”. The Claimant had surgery to remove vocal nodes but hoarseness in her voice recurred. She was advised to follow a voice management regime.
An employer must make reasonable adjustments to cater for an employee’s disability. The court was asked whether it was reasonable to expect the employer to continue to adjust the working environment because of the claimant’s problem with her voice.
The court decided that when a course of treatment is being followed in the absence of evidence to the contrary, it can be assumed that without the treatment the impairment is “likely” to recur.
Substantial and longer term effect on ability to perform normal day to day activities
In the case of Chief Constable -v- Galloway Constabulary, a police officer struggled to complete night shifts because of his medical condition. Night shift working was common in the UK and there were enough people working on night shifts in the UK for it to be regarded as “normal day to day activities” to mean that the Claimant had a “disability”.
The court accepted that in some aspects of a Policemen’s work, special skills are required. To demonstrate that the Claimant carried out “normal day to day activities” he was required to prove that his duties on the night shift were ordinary physical activities, carried out at work at a time of night, with other people, in other forms of employment, carrying out similar tasks.
The comparator in Disability Discrimination
Under the Equality Act 2010 you merely have to show that you have been treated unfavourably because of something arising in consequence of your disability. If you bring a claim under the Act it is not necessary for you to identify a comparator. The idea is that it is relatively easy to bring something within “discrimination arising from disability” but that is balanced by the potential defence that the treatment was “justified” on the grounds that it was a proportionate means of achieving a legitimate aim. This defence is also available to claims for indirect disability discrimination but not for claims for direct discrimination.
DISCRIMINATION AND REDUNDANCY SELECTION /DISMISSALS
If you have been unfairly selection for redundancy this may amount to unlawful discrimination; the reverse burden of proof applies to all discrimination claims
In the case of Chaggar -v- Abbey National the Claimant complained that he had been unfairly selected for redundancy because of his colour and he won £2.8 Million in compensation on the grounds that at the age of 40 he would never get a comparable post in the financial sector.
The Employment Appeal Tribunal decided that the reverse burden of proof applied to cases where someone is complaining of discrimination on the grounds of race so that the Employer had to show that there was another lawful reason for the redundancy selection than discrimination on the grounds of race.
The Employment Tribunal applied compensated him for a twenty five year period for loss of earnings until retirement age.
The lessons from this case are as follows:
In carrying out a redundancy selection exercise if your employer does not follow a fair procedure they will risk discrimination claims and claims for unfair dismissal.
The EAT confirmed that the same rules should apply in all discrimination claims. The Employment Tribunal will apply the reverse burden of proof so that once you have raised the claim of unequal treatment on the grounds of discrimination, if your Employer cannot show that there was another lawful reason for your treatment, the Employment Tribunal must accept your argument.
If you are dismissed by reason of redundancy this case shows that if the real reason for your dismissal is later discovered by the Employment Tribunal to have been discrimination the costs to the employer of getting it wrong can be extremely high.
I have an understanding of the challenges faced by employees bringing discrimination claims in the Employment Tribunal and I can provide a range of services to assist in pursuing them. If a claim arises I can use my experience and knowledge to increase the chances of a favourable outcome and I can offer a cost effective “one stop shop” service as Direct Public Access Barrister with the right to conduct litigation to include the conduct of the case throughout, including representation and advocacy at the hearing.