DAVID ROYDEN - EMPLOYMENT SOLICITOR
UK EMPLOYMENT LAW

David Royden is a Partner with Laytons Solicitors and Head of Employment Law, Manchester, UK

Laytons Solicitors is a national law practice specialising in all aspects of Company and Commercial Law

Laytons Solicitors, 22 St John Street, Manchester M3 4EB.
Tel: +44 (0) 161 834 2100
Fax: +44 (0) 161 834 6862

Offices at London, Manchester and Guildford, UK

 

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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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