Being treated unfairly because of your disability is an unacceptable injustice. The Equality Act 2010 recognises disabilities as a protected characteristic – meaning that if you have been discriminated against because of your disability, you may be able to make a claim in the Employment Tribunal.
But, chances are, you haven’t experienced ‘direct disability discrimination’.
That might sound confusing or frustrating, but in this blog, we’ll explain why, and also set out how you may still be able to make a claim for any discrimination you have encountered.
What is direct disability discrimination?
Direct discrimination has a very particular legal meaning in the Equality Act. If you are claiming for direct discrimination, it is essential that your situation fits all of the requirements:
You will need to show that your medical condition amounts to a disability (again, as defined by the Equality Act). This requires you to have a ‘physical or mental impairment’ which ‘has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities’. If your employer is disputing that you meet this definition of disability, this is usually determined by the tribunal by considering your medical records and your evidence.
You then need to show that your employer has treated you less favourably than a colleague whose circumstances are the same or very similar to yours. If no such person exists, you can rely on a made-up or hypothetical comparator. Less favourable treatment covers a wide range of things such as not receiving a pay rise; being subjected to disciplinary proceedings; bullying; not being promoted; or being dismissed due to sickness, absence, or redundancy.
Crucially, you then need to show that the less-favourable treatment you received was because of your disability.
It’s this last requirement that usually causes problems, as an employer’s treatment is often due to something connected to a disability, or due to a consequence of the disability, rather than the disability itself.
Demonstrating the difficulties
Let’s look at some examples:
Kunal has chronic asthma, resulting in him having a high level of sickness absence. He is dismissed because of this. This is not direct discrimination as the reason for his dismissal i.e. the less-favourable treatment, is his sickness absence, not his chronic asthma.
Kayleigh has a chronic back condition for which she needs to take strong painkillers resulting in her oversleeping from time to time and being late for work. She is disciplined for this. This is not direct discrimination as the reason for Kayleigh being disciplined is her lateness, not her back condition.
Michal has dyslexia. She applies for a promotion but is unsuccessful due to mistakes in a presentation which are due to her dyslexia. This is not direct discrimination as the reason she did not get the promotion is the presentation, not her dyslexia.
Whilst there have been successful direct discrimination claims, they tend to be rare. Obviously, there will be employers who will discriminate simply because someone has a disability. But, more often, it is due to the consequences of, or something connected to, the disability rather than the disability itself. However, where an employer makes generalised or stereotypical assumptions about an employee’s or job applicant’s disability, then this may lead to a successful direct discrimination claim.
Does this mean I can’t claim for disability discrimination?
No – it is still possible to make a discrimination claim, even if you haven’t experienced direct disability discrimination. In the examples above, Kunal, Kayleigh and Michal would still have grounds to make discrimination claims for the less-favourable treatment they experienced.
The law offers protection where an employee or job applicant is treated unfavourably because of something arising from their disability – so long as the employer cannot justify its behaviour on the basis of achieving a ‘legitimate aim’. What counts as a legitimate aim is not defined in the Equality Act, but it can include health and safety concerns, and business objectives (such as making a profit and running an efficient service). The employer’s behaviour must also be proportionate to achieving the legitimate aim, meaning that they must go no further than is necessary.
We are specialists in dealing with disability discrimination claims and achieving good outcomes for our clients, including compensation.
If you believe you have been directly discriminated against or treated unfairly due to reasons connected to your disability, please get in touch. We can advise you on your next steps, support you through the grievance process and advise on whether you have a claim and what you need to do.
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