Employment law

There is no question about it, employment law is one of the most interesting yet controversial areas of law, simply because it impacts on so many of us.

Discrimination on the grounds of disability is prohibited under the Disability Discrimination Act 1995. Disability discrimination is different to other forms of discrimination in that whilst with sex or race discrimination the emphasis is on treating people equally, with disability discrimination the emphasis is on acknowledging / considering the disability. A disability under the Disability Discrimination Act 1995 is either a physical or mental impairment that has an adverse impact on a person’s ability to carry out regular activities including (but not limited to) their: mobility, dexterity, coordination, continence, speech, hearing, sight and learning difficulties.

Types of Disability Discrimination

Direct Discrimination

An employee is directly discriminated against if he or she is treated less favourably on the grounds of their disability by comparison with someone who is either not disabled or who has a different disability. Direct discrimination cannot be defended unless an employer can show that it is justified and where this defence is raised the burden of proof is on the employer.

Failure to make Reasonable Adjustments

An employer can also be held guilty of disability discrimination if it fails (without reasonable justification) to make reasonable adjustments for an employee. This means that an employer has to ensure that any of the practices it adopts or premises it occupies must not place a disabled person at a disadvantage (Cave v Goodwin and Another [2001] EWCA Civ 391). The duty to make reasonable adjustment applies throughout the employment lifecycle from the premises used for interviews during recruitment (i.e. ensuring they accommodate for people who are disabled) to ensuring disabled employees are able to carry out their day to day duties.

This duty does not apply to disabled people in general but to particular employees and only applies where the employer knows or ought to have known about the disability. It is however a continuing obligation as was established in the case of Wilding v British Telecommunications plc [2002] IRLR 524.

The types of adjustment employers are expected to take are as follows:

  • Adjustments to premises;
  • Work sharing;
  • Alteration of working hours;
  • Adequate time off for rehabilitation, assessment or treatment;
  • Acquiring or modifying equipment;
  • Modifying assessments;
  • Providing interpreters, readers, supervision or other support.

An employer can carry out a cost analysis before making reasonable adjustments and whether or not the employer would be expected to make the adjustment will be based on some of the following factors:

  • The extent to which the alteration would prevent discrimination;
  • The practicality of making the adjustment;
  • The financial and other costs of making the adjustment;
  • The employee’s financial resources;
  • The nature of the employer’s activities and its size.

Harassment

Harassment is unwanted conduct that either intends or has the effect of violating a disabled person’s dignity or creates a degrading, humiliating of offensive environment. In addition to discrimination legislation, employees are also protected from harassment by the Protection from Harassment Act 1997 which permits employees to claim damages and / or injunctive relief in the civil courts and to prosecute in the criminal courts.

Victimisation

Victimisation takes place where an employee is treated less favourably as a consequence of making a disability discrimination complaint against the employer.

Vicarious Liability

Employers should always bear in mind that they are vicariously liable for acts of discrimination by employees during the course of their employment unless the employer has taken all reasonable steps to prevent discrimination.

Remedies

The following are the most likely remedies following a complaint about disability discrimination:

  • A declaration of the rights of the employee;
  • An order for the employer to pay the employee compensation;
  • A recommendation that the employer, within a specified time period, takes steps to eradicate or reduce the cause of the complaint.