Under the Equality Act 2010, disability is a ‘protected characteristic’.
The Act protects you from unfair treatment if you have a disability yourself, if you are perceived to have a disability (even though you don’t), and even when the disability applies to someone else, such as when you’re caring for a disabled child or parent.
The Act also means your employer should make reasonable adjustments for your disability.
If you experience discrimination at work due to a disability, you may be entitled to receive compensation. As employment lawyers who act for employees (never for employers), we can help with that.
What counts as a disability?
The Act defines a disability as:
A physical or mental impairment that has a substantial and adverse long-term effect on your day-to-day activities
Let’s look at some of those key words in more detail:
- Impairment May be physical or mental or both
- Substantial Must be more than minor or trivial. May not be present all the time. May change or fluctuate
- Long-term Must have lasted, or be likely to last, for at least a year
- Activities These include activities such as sitting, standing, driving, lifting, using a computer, reading, writing…
In case you’re wondering, yes, Covid is considered a disability if it meets the above definition.
Some conditions are protected as soon as they are diagnosed, without you having to prove the effect on your daily life. These include:
- Multiple sclerosis
- Severe disfigurement
- Blindness and visual impairment
Some conditions are specifically excluded. These include:
- Addiction to alcohol
- Addiction to nicotine
- Addiction to other drugs (unless they are medically prescribed)
What counts as disability discrimination?
Direct discrimination is when you are treated less favourably than someone who doesn’t share your disability.
Indirect discrimination is when your employer implements a policy, provision or rule that disadvantages you compared with others.
Discrimination arising from a disability For example, being selected for redundancy because you have difficulties with reading due to dyslexia, not getting a bonus because of sickness absence relating to your disability, or not being promoted because you have mobility problems.
Harassment is when someone at work behaves in a way that violates your dignity or creates a hostile, degrading, humiliating or offensive environment. ‘Banter’ can sometimes come under this heading, as would offensive jokes, and not being invited to events and meetings when other people are. It applies whether the conduct is directed at the disabled person themselves, at someone else who’s disabled, or is just ‘part of the culture’. It applies whether the person who causes the offence is an employee or not – they might be a client or supplier, for example.
Victimisation is when you’re treated badly because you make a complaint or raise a grievance about disability discrimination under the Act. Also if you try to make one, help someone else to make one, or it’s assumed that you’ve made one.
Disability discrimination may apply at any stage of employment:
- During the recruitment process
- Being offered the job
- Having the same terms and conditions of employment
- Having equal chance of promotion or transfer
- Being invited to attend training
- Getting the same salary and benefits
- Joining the same pension scheme
- Being selected for redundancy
- Being dismissed
What are reasonable adjustments?
ACTION You don’t have to disclose a hidden disability unless you want to (especially when you’re job-hunting). However, if you don’t tell your employer about the problems you’re facing, they can’t be expected to help.
Your employer should make ‘reasonable’ adjustments if your disability would put you at a disadvantage compared with non-disabled employees. Here are some of the adjustments you could ask them to make:
If you use a wheelchair, they could give you extra turning space around your desk, provide an access ramp beside any stairs, widen the doors and perhaps even instal a lift.
If you’re visually impaired, they could provide you with an adapted keyboard, supply written materials in large print or Braille, or give you an assistive listening device. They could also put labelling on any clear glass doors.
If you have inflammatory bowel disease, they could adapt your start time (because IBD is often worse in the mornings), give you a parking space near the entrance, and locate your desk to be near the toilets.
If you have disabling pain, they could provide you with special seating, allow you to take regular breaks, and minimise travel requirements.
If you have dyslexia, they could give you instructions verbally instead of in writing, allow a colleague to proofread documents you write, and provide you with a Dictaphone so you can record meetings instead of taking notes.
If you have serious social anxiety, they could excuse you from attending meetings, or let you work from a private ‘hot desk’.
If you suffer from a condition that causes fatigue, they could let you work from home, or change your working hours to suit the times when you have most energy.
Whether the adjustment is ‘reasonable’ will depend on your specific circumstances and the resources your employer has.
When it comes to making reasonable adjustments, larger employers are more likely to be able to do what you ask. The smaller the employer, the fewer resources they are likely to have and there’s a chance they’ll say the adjustment is “too costly”.
Am I protected?
You are protected by the Act if you are:
- Applying for a job
- A trainee
- A contract worker
- On secondment
- A manager or company director
How much compensation can I get?
If you win your disability discrimination case at the employment tribunal, you will be awarded compensation which can be made up of various parts:
Any money you’ve lost because of the discrimination, such as: salary, sick pay, pension contributions, and work-related benefits including company car, mobile phone, staff accommodation, staff discount, private health insurance etc.
Any extra expenses you’ve incurred due to the discrimination, such as: travelling to the Job Centre, and prescription charges or private counselling costs you’ve incurred.
ACTION Keep receipts as they will be needed to prove your claim.
Injury to feelings
A sum to cover the hurt and distress you’ve suffered. Here’s how it’s calculated:
- One-off / less serious discrimination: £990-£9,900
- More serious discrimination: £9,900-£29,600
- Lengthy / most serious types of discrimination: £29,600-£49,300
Those are called the Vento Guidelines. In general:
You’ll get more for deliberate discrimination and harassment than you would for unintentional and indirect discrimination.
You’ll get more if your employer ignored the discrimination and less if they apologised and dealt with it promptly.
You’ll get more if the effect on you is serious and long-lasting. Not so much if the impact was not so great.
ACTION You’ll get more if you needed to see your GP. If so, ask the GP for a written report (they may charge a fee for this).
ACTION You’ll probably need to ask your workmates, family, friends and medical professionals to be witnesses.
You could get an award for personal injury if the discrimination caused a physical injury or affected your mental health, such as depression.
ACTION In this case, you’ll definitely need a medical report to prove the impact it had on you.
It’s uncommon to get an award for aggravated damages, but you might be granted compensation if your employer behaves particularly badly, for example, if they knew it was against the law to discriminate against you but allowed it to happen anyway, or they act in a particularly unpleasant manner during the claim, such as being rude or dismissive.
Depending on your situation, you might receive a payment to cover other elements, including:
- Unpaid wages
- Unpaid holiday pay
- Notice pay
- Redundancy pay
- Unfair dismissal award
If your employer didn’t follow a grievance or disciplinary procedure, your compensation can be increased by up to 25%.
The tribunal can add interest to the compensation you receive for financial loss and injury to feelings, at the current rate of 8% a year.
For financial loss, interest starts from halfway between the date the discrimination took place and the date when a tribunal works out your compensation.
For injury to feelings, interest starts from the date the discrimination took place to the date of the hearing.
If your employer fails to pay within 14 days of the tribunal’s decision, you’ll also get interest at 8% from the date the compensation was calculated.
Compensation can be reduced in certain situations:
- If you received money from a new job, temporary work or benefits
- If you would have been dismissed even if your employer hadn’t discriminated against you
- If you failed to follow the correct grievance procedure
- If the tribunal accepts your employer’s decision is an “objective requirement” or a “proportionate means of achieving a legitimate aim”
What should I do?
As you can see, it’s complicated.
Talk to us and we’ll advise what amount of compensation would be realistic to expect in your own disability discrimination case.