discrimination
Be aware of discrimination
By Daniel Wilde, of Harding Evans T
here are more than 6.9 million people of working age who are disabled in the UK. This represents approximately 19 per cent of the working population. The Equality Act 2010 is the
most recent piece of legislation providing protection to employees with disabilities. Damages for discrimination or harassment have no
statutory cap, unlike an award for an unfair dismissal. Damages may also be awarded for injury to feelings and personal injury, if this can be linked to the discrimination. The potential for a high award is clear and should be
avoided. Prudent employers should ensure that they are familiar with the framework of protections afforded to disabled employees. The basic principles of the legislation are simple:
employers should not, either directly or through their rules of practices, cause someone with a disability to be treated less favourably than someone without that condition. When an employee, or prospective employee is
identified as having a disability, an employer has a positive duty to make reasonable adjustments to their role or the working environment as a whole, to remove or reduce any impact that their disability has on their ability to undertake the work. What does this mean on a practical level? Direct discrimination is the easiest concept to
appreciate. If an employer treats an employee differently because of their disability or a characteristic relating to it, they act unlawfully. This essentially means the test is about comparisons – an employment tribunal will compare the employee with the disability, to a sufficiently similar person without the disability, and determine whether there has been unfavourable treatment. For example, Uninformed Inc decides not to employ
John who suffers from a mental health problem as an IT analyst. John is better qualified and has more relevant experience than the person appointed. Uninformed decides not to appoint John because it is concerned about John’s mental health history. However, there is no evidence that John’s condition
affects his ability to work. In this case there is direct discrimination as John has
been treated unfavourably compared to the person appointed because he is disabled. There would be no discrimination in this scenario, if John had less experience
14 THEbusiness QUARTER
and inferior qualifications to the person appointed, and the employer made the appointment because the successful candidate was the best person for the job. Indirect discrimination through practices or rules, which
apply to staff as a whole, will be considered discriminatory if they would cause someone with a disability to be more disadvantaged. An example might be Uninformed Inc’s policy of a ‘hot-
desk’ whereby staff share desks and move around day to day. This may inadvertently cause Jenny, a wheelchair user with a physical disability, to suffer a detriment by having to move unnecessarily to a desk not modified for her needs as a wheelchair user. In respect of justifying a rule, the above example would
be difficult if not impossible to justify and indeed in such a case, someone with a physical disability would need to be exempt from such practices. Not requiring Jenny to move and provided a modified desk, are good examples of an employer making reasonable adjustments. Employers are required to make reasonable
adjustments to ensure disabled employees are not placed at a disadvantage by their disability. This type of positive action in favour of employees with disabilities in not unlawful and is in fact employers are under a positive obligation to make reasonable adjustments. Uninformed Inc would be able to justify not appointing
a person to a role if that person’s disability precludes them from being able to undertake the essential part of a job role. If John’s mental health problems were so serious he could not perform a role, Uninformed Inc, despite treating him less favourably because of his condition, could justify not appointing him to the role. It is entirely possible to discriminate against a disabled
worker unintentionally through the implementation of polices. Employers must ensure regular reviews of all internal policies and also to ensure an open dialogue with staff members to avoid unintentional discrimination. It is far less likely that an employer who listens to their staff will find themselves on the wrong end of a discrimination claim as they will have the opportunity to react to any perceived discrimination and to address it. The duty to make reasonable adjustments to assist
someone with a disability arises at the very beginning of the relationship with a potential employee. An employer has a duty to enquire as to any reasonable changes
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60