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Dismissal on grounds of Unlawful Discrimination
Where dismissed employees have made a complaint under the
legislation relating to discrimination on grounds of sex, race, disability,
religion or belief or
sexual orientation and are also eligible to make a complaint of unfair dismissal
they should do so, even if it is thought that the reason for dismissal was
an unlawful act of discrimination.
DISABILITY DISCRIMINATION
The Disability Discrimination Act 1995 implemented significant
new rights for disabled people. The laws and measures are aimed at ending discrimination
faced
by many people with disabilities in the areas of employment, access to goods,
facilities and services, and the management, buying or renting of property.
Who
does the Act cover?
The following are excluded from the provisions of the Act:
- employers with fewer than 15 employees
- prison officers, firefighters and
members of the police force
- employees who work wholly or mainly outside Great
Britain
- members of the Armed Forces
- people who work on board ships, aircraft or
hovercraft
Subject to the above the Act covers employees under a contract
of service or apprenticeship. This will include temporary and part-time workers.
The Act
makes it unlawful to discriminate against both current and prospective employees.
Contract
workers hired out by their employers to third party organisations are also
included. Furthermore, the organisation which hires them should include
contract workers in their count of employees to establish whether the small
firms’ exemption is applicable or not.
What constitutes a “Disability”?
A disability
is defined in the Act as a physical or mental impairment which has a substantial
and long-term adverse effect on a person’s ability
to carry out normal day-to-day activities.
The effect of an impairment is a long
term effect if it has lasted at least 12 months, or if it likely to last at
least that long, or if it is likely to
last for the rest of the affected person’s life, or if it likely to recur
if in remission.
An impairment is to be taken to affect the ability to carry
out normal day-to-day activities if it affects one of the following.
- mobility
- manual dexterity
- physical co-ordination
- continence
- speech, hearing or eyesight
- perception of physical danger
- memory or ability to concentrate, learn
or understand
Harassment of Disabled Individuals
Harassment of an individual
who has a disability or has had a disability in the past is unlawful. A person
with a disability is someone who has or has
had a physical or mental impairment that has a substantial and long-term
adverse effect on his/her normal day-to-day activities. Therefore depending
on individual
circumstances a person, who has been seriously injured, has or has had a
progressive illness, significant learning difficulties or poor hearing/vision/mobility,
is likely to be a person with a disability.
Examples of harassment of a person
who has or has had a disability include: -
1. Non verbal offensive gestures
(e.g. staring at a particular affliction);
2. Offensive letters;
3. Insensitive jokes, pranks, nicknames or comments;
4. Physical mistreatment (e.g. jostling or assault).
An employer must make
reasonable efforts, if a disabled person joins the employer or if an existing
employee becomes disabled, to make such adjustments as are
necessary and practical to retain them.
What constitutes “Discrimination”?
Discrimination occurs when a disabled person is treated less
favourably than other people for a reason related to his or her disability,
and this treatment
cannot be justified.
Discrimination also occurs if an employer fails to make reasonable
adjustments to ensure that employment arrangements or premises do not put
a disabled person
at a disadvantage in comparison to a non-disabled person and the failure
cannot be justified.
What do “arrangements” cover and include?
Arrangements include:
- arrangements for deciding who should
be employed, e.g. the selection and interview process and the premises used
for them
- terms and conditions and the manner in which employment, promotion,
transfers, training and other benefits are provided
The extent of the arrangements
which must be set in place by an employer are limited by the concept
of what is reasonable in the circumstances. What will
be reasonable will depend on the following factors:
- the effectiveness of
the particular adjustment in overcoming any disadvantage to the employee
- the practicability of the adjustment
- the financial and other costs of
the adjustment and the extent of any disruption caused
- the extent of the
employer’s financial and other resources
- the availability to the employer
of financial or other assistance to assist
in making an adjustment
For example, it may not be reasonable to expect a small employer with limited
cash resources to install a lift for an employee who has difficulty climbing
the stairs to his first floor office. However, it would be appropriate to arrange
for that employee to swap offices with another employee whose office is on
the ground floor.
Considerations which employers should bear in mind
Employers should consider taking the following actions when
dealing with disabled people in employment:
- making adjustments to premises
e.g. ramps, widening door entrances
- allocating some of the disabled person’s
duties to another person e.g. heavy lifting tasks where the employee has
a bad back, or reading and writing
tasks where the employee has a learning difficulty
- transferring the person
to fill an existing and more appropriate vacancy
- altering a person’s
working hours e.g. to fit in with a course of treatment such as physiotherapy
- assigning the person to a different place of work e.g. with better access
or facilities
- allowing absences during working hours for rehabilitation,
assessment or treatment
- giving or arranging specific or additional training
for the person
- acquiring or modifying equipment e.g. workbenches
- modifying instructions
or reference manuals e.g. use of large print or recording onto tape
- modifying
procedures for testing or assessment e.g. more frequent medical checks
- providing
a reader or interpreter
- providing enhanced supervision
The above list contains examples of steps which an employer
may consider making and more than one of these steps, as well as other adjustments,
may need to
be taken according to the specific circumstances.
Making a complaint
A person may make a complaint to an Employment
Tribunal if they believe they have been discriminated against by their employer
or the employer has failed
to a make a reasonable adjustment. The complaint must be made within 3 months
of the act of discrimination which is being complained of.
If an Employment Tribunal
finds that a complaint of disability discrimination is well founded it can
make any of the following orders:
- Declaratory Order - an Order declaring the
rights of the employee and the employer in relation to the act complained
of
- Compensation - an Order requiring the employer to pay compensation to the
employee. This may include damages for injured feelings and compensation
for loss of
opportunity in the labour market going beyond the actual loss of wages. There
are no limits on compensation in the Employment Tribunal for disability discrimination.
- Recommendation of remedial action - a recommendation that the employer
take within a specified period action to alleviate or reduce the effect on
the employee
of any act of discrimination complained of.
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