Disability Discrimination Rights
The Equality Act 2010 defines a disabled person as someone who has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.
Each element of the definition of disability needs to be considered. It may not always be obvious that a person is disabled within the definition of the Equality Act 2010. Whether an illness falls within the definition depends on the impact and duration of the illness. Some illnesses such as cancer, HIV and multiple sclerosis are automatically included from the point of the medical diagnosis, without any further need to refer to each limb of the definition.
A physical or mental “impairment” can include severe disfigurement, dyslexia, depression or complaints arising from conditions that are not considered a disability – such as lung cancer arising from an addiction to cigarettes. The cause of the physical or mental impairment is not generally considered. It is the effect that matters. The effect must be on “normal day-to-day” activities, and this has a wide remit, including such capacities as mobility, speech and coordination. An effect is long-term if it has lasted or is likely to last for at least 12 months, or the lifetime of the individual concerned.
It is unlawful for your employer to directly discriminate against you as a disabled employee and any form of indirect discrimination is only permitted if it can be justified. This includes discrimination in the context of:
- application forms;
- interview arrangements (for example and employer should not ask in a interview whether you have any medical conditions or if how many days sickness absence you have taken. Questions about your disability are allowed after you have been offered the position);
- job offers;
- terms of employment;
- promotion, transfer or training opportunities;
- work-related benefits such as access to recreation or refreshment facilities; and
- dismissal or selection for redundancy.
Your employer also has a duty to make 'reasonable adjustments' for you as a disabled employee in order to make sure that you are not put at a substantial disadvantage in comparison to other able-bodied employees. For example, when appropriate, your employer should consider:
- allocating some of your work to someone else;
- transferring you to another post or another place of work;
- making adjustments to the buildings where you work;
- being flexible about your hours;
- providing training or retraining if you cannot do your current job any longer;
- providing modified equipment;
- making instructions and manuals more accessible; or
- providing a reader or interpreter.
You should discuss any such arrangements with your employer, and you may also want to suggest to your employer that they seek external advice from someone with expertise in providing work-related help for disabled people, such as an occupational health adviser. It is important to remember that the duty to make reasonable adjustments is not an automatic obligation and your employer’s size and financial means would ultimately be considered by an employment tribunal in considering whether the requested adjustment is “reasonable”.
You may decide to resign if you feel that your position has become untenable as a result of discrimination you are suffering at work, in which case you would have a potential claim for constructive dismissal as well as disability discrimination. Furthermore, if you have suffered any detriments because you have made (or intend to make) complaints about the discrimination you have suffered, you may also have a claim for victimisation.
If you believe that you are being discriminated against on the grounds of your disability, or you simply want more information about your rights, Ashby Cohen can help you. We specialise in employment law cases, and our years of experience as employment lawyers make us uniquely qualified to assist you with any disability discrimination issues you may have. Please contact us for an initial free telephone consultation.
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