My Employment Rights

Definition of Disability

An employee is disabled if they have a condition that meets the following requirements:

"A physical or mental impairment that has a significant and long term adverse effect on the person's ability to carry out their normal day to day activities"

There are various tests that apply to help decide what does or does not qualify.

"Normal day-to-day activities" are defined as:

• Mobility
• Manual dexterity
• Physical co-ordination
• Continence
• Ability to lift, carry or move everyday objects
• Speech;
• Hearing or eyesight
• Ability to concentrate
• Memory
• Ability to learn or understand; or
• Perception or ability to understand physical danger

Progressive conditions such as muscular dystrophy are covered from the point at which any symptoms are experienced. HIV infection, multiple sclerosis and cancer are deemed to be disabilities.

Generally, a medical report will be required in order to determine this issue. However, the following may amount to disabilities:

• asthma
• amputation
• autism
• cancer
• clinical depression
• diabetes
• epilepsy
• HIV
• learning disabilities

Any medication or other apparatus that is designed to overcome the effects of the disability are ignored for the purposes of assessing whether someone has a disability.

The following conditions are specially excluded (except where they are symptoms of other conditions)

• Alcoholism
• drug addiction
• season allergic rhyanitis
• short/long sightedness
• pyromania
• kleptomania

Protection from Discrimination

Where a person is disabled they are protected from:

• Direct discrimination - occurs where, on the grounds of a person's disability, a person is treated less favourably than another person was treated, or would have been treated, in circumstances which were the same or hardly any different.

• Disability-related discrimination occurs where an employer treats a disabled person less favourably, for a reason relating to their disability (but which is not the disability), than he treats others to whom that reason does not apply and the less favourable treatment cannot be justified. Less favourable treatment can only be justified if the reason for the difference in treatment is both material (significant and relevant) to the circumstances and substantial (more than trivial or minor).

• Indirect Discrimination occurs where an employer applies a provision, criterion or practice to everyone, which puts, or would put, people a disabled person at a disadvantage in comparison to others; puts a particular individual at a disadvantage; and cannot be legitimately justified;

• Harassment occurs where a person is subjected to unwanted conduct on discriminatory grounds which has the purpose (intentionally) or effect (unintentionally) of violating that person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive working environment. Where no intent to offend can be established, the unwanted conduct will only be regarded as having the "effect" of violating a person's dignity, or, creating an intimidating, hostile, degrading, humiliating or offensive environment, if that could be regarded as a reasonable when taking all the circumstances into account, including, in particular, the perception of the person who has been harassed;

• Victimisation occurs where a person is treated less favourably because he or she carried out a protected act: ie (i) has alleged that discrimination has taken place; (ii) has presented a claim to an employment tribunal; or, (iii) has acted as a witness in a discrimination case. In victimisation cases the difference in treatment is compared with another person, actual or hypothetical, who has not committed a protected act.

• An employer also discriminates if the duty to make reasonable adjustments to any provision, criterion or practice or to the physical features of premises applies but is not met.

• The duty to make adjustments arises where any provision, criterion or practice applied by the employer, or any physical feature of the premises, place a disabled employee or a disabled job applicant at a substantial disadvantage (see below).

Duty to Make Reasonable Adjustments

Employers are required to make reasonable adjustments to any provision, criterion or practice it applies or to physical features of premises which place a disabled employee or a disabled job applicant at a substantial disadvantage. This is designed to help a disabled person to overcome the practical effects of their disability.

The duty does not arise if the employer did not know, or could not reasonably be expected to know, that a disabled person has (or has had) a disability and is likely to be placed at a substantial disadvantage.

The DDA gives examples of steps which an employer may have to take to comply with the duty, eg structural or physical changes; allocating some of the disabled person's duties to another person; transferring the disabled person to fill an existing vacancy etc.

It is no longer possible for an employer to justify failing to make a reasonable adjustment. If an adjustment is reasonable, it must be made. The DDA gives examples of matters which will be taken into account in determining if it is reasonable for an adjustment to be made, eg the extent to which an adjustment is practicable and the extent of the employer's financial and other resources.

Claims to the Employment Tribunal

A claim for unlawful discrimination can be made by an individual to an employment tribunal with 3 months of the act complained of.

Claims can be brought outside of this time limit, if it can be shown that it is "just and equitable to do so".

If a tribunal is satisfied that discrimination has taken place it can:

• make a declaration to that effect;
• make recommendations to the employer; and
• make an award of compensation.

Compensation for discrimination can be awarded as follows:

• Economic Loss - Loss suffered as a result, say, of the employee having been dismissed. This will be calculated based on lost earnings to the point where alternative employment is obtained and any ongoing losses thereafter;
• Injury to feelings - Where the employee can demonstrate such an injury, suffered as a result of the treatment received, compensation can be awarded. This can be between £500 and £25,000 depending on the severity;
• Aggravated Damages - where the action of the employer in its actions and conduct of the defence of the claim is such that additional damages are justified.

There is no overall cap on the amount of damages that can be awarded.