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Disability discrimination

Overview

The Equality Act 2010 provides protection against unlawful discrimination, harassment and victimisation for the protected characteristic of 'disability'.

Key points

  • The core definition of ‘disability’ is 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.
  • Four types of disability discrimination are unlawful: direct discrimination, indirect discrimination, discrimination arising from disability, and failing to comply with the duty to make reasonable adjustments.
  • Direct discrimination occurs where a person is treated, or would be treated, less favourably ‘because of’ a disability compared with others in like-for-like circumstances.
  • Indirect disability discrimination occurs when a provision, criterion or practice (PCP) puts a disabled employee at a disadvantage compared with those without that disability. An employer may be able to justify the PCP as a proportionate means of achieving a legitimate aim.
  • Discrimination arising from disability occurs where a person is treated unfavourably because of something arising from a disability and the employer cannot show this is a proportionate means of achieving a legitimate aim.
  • Discrimination also occurs where the employer fails to make reasonable adjustments to avoid the disadvantage caused by the PCP or a physical feature of the workplace, or to provide an auxiliary aid or service. 
  • An occupational requirement (where the work requires a person to have a particular disability) can be a lawful exception to direct and indirect discrimination.
  • Harassment occurs where unwanted conduct related to disability violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.
  • Victimisation occurs where a person is subjected to a detriment because of carrying out a ‘protected act’ (for example, bringing a discrimination claim). 
  • It is unlawful for an employer to ask job candidates about their health (except in specified circumstances) until the applicant has been offered a job.
  • Employers are liable for acts of discrimination, harassment and victimisation carried out by their employees ‘in the course of employment’.
Recent developments

Following consultation on the bands of compensation for injury to feelings in discrimination claims, the Presidents of the Employment Tribunals in England and Wales and Scotland have confirmed an increase to the compensation bands.

The three bands of compensation for injury to feelings were identified in Vento v Chief Constable of West Yorkshire Policy (No 2) and were previously adjusted in 2009 by Da’Bell v NSPCC. A 2017 Court of Appeal decision in Pereira de Souza v Vinci Construction UK Ltd confirmed the 10 per cent Simmons v Castle uplift should be applied to the bands. This decision triggered the consultation.

For claims presented on or after 11 September 2017, the bands for compensation for injury to feelings have increased to the following:

  • lower band (for less serious cases, such as one off incidents): £800 to £8,400
  • middle band (for serious cases not within the upper band): £8,400 to £25,200
  • upper band (for most serious cases, such as length campaigns): £25,000 to £42,000

These bands will be reviewed in March 2018 and annually thereafter.