DISABILITY DISCRIMINATION

Introduction
Disability discrimination is governed by the Disability Discrimination Act 1995 which outlaws discrimination against disabled people in a number of fields. In the context of employment law, the Act applies (with limited exceptions) to all Employers with fifteen or more employees and makes it unlawful for them to discriminate against employees or prospective employees who are disabled.

How is a disabled person defined?
In the Act a disabled person is defined as someone who "has a disability". In turn such a person is defined as someone who "has a physical or mental impairment which has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities".

How is discrimination defined?
Essentially discrimination can arise in two ways. First and foremost, it will occur when an Employer, for a reason relating to a disabled Employee's disability, treats that Employee less favourably than he would another Employee to whom the reason does not, or would not apply. This would cover the situation where an Employer refuses to offer a job to the best candidate simply because he or she is a person with a disability.

Second, discrimination can also arise indirectly where an Employer is in breach of his duty to make "reasonable adjustments" to "work arrangements" and the "physical features of premises" so as to accommodate disabled persons. Such a duty is imposed where particular arrangements made by an Employer place a disabled person at a substantial disadvantage in comparison with other Employees who are not disabled. These particular arrangements relate to the manner in which Employees are recruited and the terms on which employment is offered. Much will depend on the facts of each case and special rules apply where the Employer needs his/her landlord's permission to carry out physical alterations at the workplace.

Do Employers have a defence?
Yes - they do. It is a defence to both types of discrimination to plead justification. However, the justification must be both "material" and "substantial". In cases involving less favourable treatment the defence of justification will not be available if a reasonable adjustment would remove the reason for the treatment or make it less than substantial.

What are an employee's remedies?
The employee's main remedy is to apply to the Employment Tribunal for compensation. There are no limits on compensation which can include damages for injury to feelings. Potentially such claims can be very substantial.

Unlike claims for unfair dismissal there is no minimum period of employment which must be worked before a disability discrimination claim can be made. This means that an Employee who has been dismissed as a result of disability discrimination but who has not been employed for at least one year may still make a claim under the Act.

What are the time limits?
Before making an application to an Employment Tribunal the Employee must first make a written grievance to the Employer within three months of the act of discrimination. The Employee will then have a further three months after making the grievance in which to make an application to the Tribunal. These time limits are strictly enforced and only in exceptional circumstances will time be extended. It is therefore vital to take advice at the earliest opportunity.

These notes are intended to be an introductory guide only. They are not a substitute for legal advice which should be obtained in all cases before action is taken.