Disability

by Kate Russell

Protection

The act 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).

Forms of discrimination

Victimisation

Victimisation arises where a person has made an earlier complaint of unlawful discrimination and subsequently – and as a result of that complaint – suffers some form of less favourable treatment.

Direct discrimination

The Equality Act introduced a new type of disability discrimination – detriment arising from disability, which replaced disability-related discrimination. The test for justifying this will be more stringent and employers will have to show that any detriment (for example, a dismissal) was a proportionate means of achieving a legitimate aim.

Indirect discrimination

The Equality Act 2010 introduced the concept of indirect discrimination in relation to disability. It remains to be seen how often claimants will bring indirect disability discrimination claims when they can already bring claims for a failure to make reasonable adjustments.

The definition of indirect discrimination is application of a provision, criterion or practice in relation to a protected characteristic, in this case disability) that is disadvantageous to a particular group because a considerably smaller proportion of that group is able to comply with it.

Harassment

An employer is responsible for acts of harassment by employees in the course of their employment unless the employer took such steps as were reasonable and practicable to prevent it. As a minimum first step, harassment because of disability should be made a disciplinary matter and staff should be made aware that it will be taken seriously.

Harassment is defined as follows:

Definition

A disabled person is now subject to harassment where, for a reason related to the disability, another person engages in unwanted conduct which has the effect of either violating the disabled person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

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.

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.

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 Disability Discrimination Act 1995 only protected those who are disabled within the meaning of its provisions. In 2008 the European Court of Justice was asked to rule on the issue of whether or not the Directive affords protection to individuals who are not themselves disabled. The ECJ ruled that it does.

Ms Coleman was employed as a legal secretary by EBR Attridge Law LLP, a firm of solicitors. She is the principal carer for her disabled son. In 2005, Ms Coleman resigned and complained of unfair constructive dismissal and unlawful disability discrimination to an employment tribunal. Her case was that she had resigned in response to her employer’s alleged discrimination against her on account of her son’s disability. The tribunal referred the question of whether or not associative discrimination contravenes the Directive to the ECJ.

The ECJ acknowledged that the Directive makes no express reference to associative discrimination, and that its specific provisions appear to be directed only at cases where the claimant is disabled. However, it held that the Directive seeks to combat all forms of discrimination on the grounds of disability and that its objectives and effectiveness would be undermined if a person subject to discrimination on the grounds of the disability of another person were excluded from protection. The Directive should not be interpreted as applying only to disabled people.

The Equality Act enshrines the principle that employees have the right not to be treated less favourably because of their association with a person with a protected characteristic, such as a disability.

One change is likely to be particularly relevant in the context of alleged ‘associative discrimination’ against an employee who is a carer of a small child, albeit perhaps not in very many cases. A child aged under the age of six will qualify as suffering from a disability regardless of whether his disability affects his normal day-to-day activities, provided that he satisfies the other conditions required to qualify.

Perceptive discrimination

This is treating someone less favourably because it is perceived that they have a protected characteristic, whether or not they do. For example, treating someone less favourably because it is perceived that they are a homosexual when they are not.

Example

Mr English was heterosexual. His workmates knew he was not gay, but used homophobic language to harass him.

Mr English brought a claim against his employer citing a breach of the sexual orientation regulations. He said he was singled out for discriminatory abuse because he fitted his colleagues’ stereotype of a gay man.

The Employment Appeal Tribunal ruled that Mr English had no claim for bullying or harassment under the act. Looking at the legislation, they concluded, albeit reluctantly, that protection only covers someone who is gay or bisexual, or someone who is perceived/assumed to be gay or bisexual by their fellow workers.

This means an employee who is subjected to joking about their partner’s disability or a friend’s sexual orientation may be able to bring a claim. Similarly, an employee (or job applicant) who was heterosexual, but perceived to be gay, lesbian or bisexual (perhaps because of mannerisms or rumours) would be protected.

The concept of discrimination by perception already applied to race, religion or belief and sexual orientation. It has now been extended to cover disability as well as the other protected characteristics.

Third party harassment

The Equality Act extends the liability of employers for harassment of their employees by third parties, such as clients, customers, suppliers and consultants. The obligation will not be triggered unless the employer knows that the employee has been harassed by a third party in the course of their employment on at least two previous occasions – not necessarily by the same third party – and the employer has not taken reasonably practicable steps to prevent the harassment on that occasion, otherwise known as the ‘three strikes’ provision.