Where an employee suffers from a physical or mental impairment which has a substantial long term adverse effect on their ability to carry out normal day to day activities, that employee is afforded special protection through the Equality Act 2010.
If an employee is disabled, for the purposes of the Equality Act, their employer should consider whether they can implement any reasonable adjustments at work which allow for the disability to be better managed. There is for example the possibility that any sick days due to the disability, may be discounted from an attendance management policy. If an employer fails to properly consider such reasonable adjustments, the employee may have a claim for disability discrimination.
Disability discrimination can occur either directly or indirectly. Direct discrimination occurs where an employer treats an employee less favourably because of their disability, than they would treat others. Indirect discrimination can occur when there is a practice, policy or rule that, on the face of it, applies the same way to everybody however, discriminates against a person or group of persons and where the employer implementing the policy cannot show a good, sound reason for it.
Disability discrimination can also occur where it arises from the disability. An employer will discriminate against a disabled employee if they treat the employee less favourably because of something arising in consequence of the employee’s disability and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim. An example of this may be where an employee is dismissed for absence that arose from a disability.
There may be times when an employee is subjected to unfair treatment, but that treatment may not necessarily be unlawful discrimination. The person involved in the allegation of discrimination does not have to mean to discriminate nor necessarily know that they are. If a person discriminates against another in a negative manner and it relates to the employee’s disability, this will amount to direct discrimination.
If you are unsure of whether your case would qualify as a claim of disability discrimination, the below case studies may be helpful and Ringrose Law could assist you in bringing a claim.
Case Study 1 – Claimant H
H was suspended from work for nearly a year, solely because of their disability. Unfortunately, during this time H had received very small amounts of information but was aware of the possibility that their employment may be due to come to an end, as they had recently received a settlement agreement.
H had initially requested reasonable adjustments be made to their general working environment and if these had been implemented then they would not have required the time off work.
Ringrose Law therefore, submitted a formal grievance against the employer on H’s behalf and also began negotiations to improve the £12,500 offer made in the settlement agreement.
H settled their claim for £25,000.00 together with a contribution towards legal fees and an accurate reference to use for all future employers.
Case Study 2 – Claimant I
I advised her employer of a recent illness and their response was to extend her probationary period with repeated efforts to encourage her to resign.
Ringrose Law explained to I that her illness, for the purposes of the Equality Act, amounted to a disability therefore, she was protected from discrimination. I noted that her employer had refused a request to alter working times to accommodate hospital treatment and became isolate by staff after she explained about her illness.
I had raised a grievance against her employer which was unsuccessful she felt she could not continue in her role at that time and was therefore, signed off sick.
I instructed Ringrose Law to obtain the best possible exit package for her as the relationship with her employer had broken down so drastically that it could not be repaired.
Ringrose Law lodged proceedings in the Employment Tribunal and made an offer to her employer.
I settled her claim for a significant figure together with an accurate reference and a contribution towards legal fees.
Case Study 3 – Claimant J
J was referred to his employment Occupational Health after time off work due to sickness. The report confirmed J required around 3 months off work due to depression.
J decided to return to work sooner on the understanding he would receive a phased return to pre-sickness duties. However, when he returned J’s employer refused to accommodate this.
J’s employer dismissed him within 2 weeks of his return due to incapability despite the fact he had a note from his doctor to advise of the need for the phased return.
Ringrose Law negotiated a settlement package which included a reference, on the basis J’s employer should have made the reasonable adjustment to provide a phased return.
If you require any assistance with an employment law dispute, please telephone our employment law team on 01522 561020 and we will arrange an appointment for you to attend a free clinic at our Newark office on Wednesday 07 November 2018.