BWF members such as yourselves frequently use our Member and Technical Helplines for assistance on a wide range of Employment, Health and Safety, Contractual and Technical issues. We’re putting up a frequently asked question every Tuesday in order to help members and illustrate the type of advice we are able to provide. If you have any questions that you would like to see featured, we would be happy to assist. This question and many others like it can be found in our Question Centre. If you want further advice on any of the issues, don’t hesitate to ring the helpline or browse our extensive publications library, which includes guidance on pre-employment medical questionnaires, briefings on accident reporting and investigations, and age discrimination advice. This week: What Does An Employee Need To Prove To Claim Disability Discrimination? An employee claiming unlawful discrimination will be required to prove all three of the following: – That their condition fell within the definition of disability within the Equality Act 2010
– That they suffered less favourable treatment (i.e. discrimination) as a result of the disability
– That the less favourable treatment is not/cannot be justified. The Equality Act 2010 protects disabled employees from unjustified discrimination, taking over from the Disability Discrimination Act 1995 and bringing together discrimination legislation under one Act.
Under the Act, a person is generally considered to have a disability if he/she has a physical or mental impairment, which has a substantial and long-term effect on his/her ability to carry out day-to-day activities.
‘Long-term’ means that the effect of the impairment has lasted or is likely to last for at least twelve months. There are some additional provisions in the Act which include those relating to people with progressive conditions – individuals with HIV, cancer or multiple sclerosis are protected by the Act from the point of diagnosis. Some conditions are specifically excluded from the definition set out in the act, for example, addictions to non-prescribed substances.
The Act protects employees from discrimination in situations where the employer knows or reasonably ought to know of the employee’s disability. The Act also gives examples of reasonable steps that employers might have to take to accommodate the individual. These may include:
– Altering working hours
– Allowing time off for rehabilitation or treatment
– Allocating some of the disabled person’s duties to someone else
– Transferring the disabled person to another vacancy or another place of work
– Giving or arranging training to the disabled person or others
– Providing a reader or interpreter
– Acquiring or modifying equipment or reference manuals
– Adjusting the premises
– Providing supervision or other support
Whether an adjustment is considered ‘reasonable’ can be determined by looking at the extent to which it would address the problem, how practical it is for the employer to do it, the costs involved, and the financial resources of the employer.
Any application to an employment tribunal from an employee must be made within three months of the alleged discrimination. If the employee is making a late claim, then, for this to be accepted, they must have a strong reason for it.