Disability

by Kate Russell

Disability discrimination

According to official figures, around one in five people of working age are considered to be ‘disabled’ within the meaning of the Disability Discrimination Act 1995 (now largely replaced by the Equality Act 2010). If a person with a disability suffers unlawful discrimination in the workplace, he can complain to the tribunal. There is no upper limit on compensation for discrimination, so an employer’s unjustified discrimination or failure to make reasonable adjustments can be extremely costly.

Example

B was demoted after requesting to have her hours changed. She then went on sick leave with depression, never to return to work. She was dismissed and complained successfully of unfair dismissal.

She was awarded damages in the region of £400,000 by way of compensation, to reflect the fact that her ability to work and employment prospects had been badly affected by the discrimination that had taken place.

It is a general rule in the discrimination legislation that people who have been discriminated against can claim compensation for the losses they suffer as a result of the discrimination, without having to satisfy an additional test that the losses were reasonably foreseeable. So, for example, in Essa v Laing Ltd [2004] Mr Essa’s compensation was not limited to that which was reasonably foreseeable. Although Mr Essa’s case involved the consequences of racial discrimination, the same principle would apply to a case of disability discrimination.

Example

E was a black Welshman, born and brought up in Wales with an interest in amateur boxing. He had represented his country many times in amateur championships.

During the summer of 1999 he worked as a labourer at the construction site of the Millennium Stadium in Cardiff. During a discussion about the allocation of work he was racially abused by P, an employee of L Ltd. In consequence, E left his job. He suffered from severe depression following the incident. He was unable to look for other work and lost interest in boxing.

The tribunal computed the compensation on the basis that the employers are only liable for such reasonably foreseeable loss as was directly caused by the discriminating act. Although it was reasonable to expect L Ltd to have foreseen that E would experience some distress because of the abuse from P ‘they could not have reasonably foreseen the extent of E’s reaction to it’.

They added that they found E’s reaction to the abuse to be ‘so extreme as to have been irrational’ and decided that L Ltd were only liable to pay compensation for injury to feelings and three weeks’ loss of earnings, as that was the length of his contract for work at the Millennium Stadium. He was awarded £5,000 for injury to feelings and just over £500 for financial loss.

The Court of Appeal disagreed with this approach and found that people who have been discriminated against can claim compensation for the losses they suffer as a result of the discrimination, without having to satisfy an additional test that the losses were reasonably foreseeable. E’s compensation was increased significantly to take his actual losses into account.

General principles

It is unlawful for an employer to discriminate against a disabled person in relation to his employment. Before 1995, disabled employees had to be registered disabled by a doctor, and employers with 20 or more staff were supposed to have a disabled quota of three per cent of their workforce. Few employers complied, because the code was purely voluntary. It was rarely enforced and provided little protection for disabled people.

Since the Disability Discrimination Act (DDA) came into force in 1995, rights have been significantly strengthened and extended for disabled people in the fields of employment, education, transport, the provision of goods, facilities, services, premises and the exercise of public functions. Only those people who are defined as disabled in accordance with the act will be entitled to the protection that the act provides. This topic concentrates on protection in employment.

The Equality Act 2010, which came into force on 1st October 2010, has revised the definition of disability, making it slightly easier for a person to demonstrate that he has a disability. He will be considered to be disabled within the meaning of the legislation if

  • He has a physical or mental impairment
  • The impairment has a substantial and long-term adverse effect on his ability to perform normal day-to-day activities

As part of the protection, employers may have to make reasonable adjustments if their employment arrangements place disabled people at a substantial disadvantage compared with non-disabled people. These provisions replace the quota scheme, the designated employment scheme and registration as a disabled person.

The legislation does not prevent employers from treating disabled people more favourably than those without a disability, though it does not give non-disabled people the equivalent opposite rights: for example, if they are not selected during the recruitment process, because they do not have a disability.

The Equality Act also provides rights for people not to be directly discriminated against or harassed because they have an association with a disabled person. This can apply to a carer or parent of a disabled person. In addition, people must not be directly discriminated against or harassed because they are wrongly perceived to be disabled.

Rights or obligations under the act

Disabled people have rights under the DDA, as do people who have had disabilities but have fully or largely recovered.

The following people and organisations may have obligations under the act:

  • Employers – irrespective of size
  • The Crown (including government departments and agencies)
  • Employees and agents of an employer
  • Landlords of premises occupied by employers
  • People who hire contract workers
  • Trustees or managers of occupational pension schemes
  • People who provide group insurance schemes for an employer’s employees
  • Trade organisations.