The Equality Act 2010 protects people from discrimination on the basis of age, gender reassignment, sex (i.e. man or woman), race, religion or belief, pregnancy and maternity, marriage and civil partnership, sexual orientation and disability. These are called the protected characteristics of the Act.
The act prohibits unfair treatment in the workplace, when providing goods, facilities and services, when exercising public functions, in the disposal and management of premises, in education and by associations (such as private clubs).
This guidance deals with discrimination on grounds of disability in the workplace and looks at your rights as an employee or worker, and the steps you can take to challenge your employer if you feel you are being treated unfairly and that you may be the victim of unlawful discrimination.Back to contents
The Act protects people from discrimination in all aspects of employment, including:
Further to this, the Act places a proactive duty on employers to make reasonable adjustments to working arrangements or premises, in order to prevent disabled employees, job applicants or ex-employees from being disadvantaged. This includes making reasonable adjustments to the application and interview process, and careful consideration about providing references.Back to contents
The Equality Act 2010 applies to all employees, and most types of workers, whatever the size of the employer and whether in the public or private sector, including: nurses, prison officers, contract workers, office holders, people on work experience, partners in firms and barristers.
Agency workers are covered by the Act but, their employer is their agency not necessarily the organisation in which they are working.
It also applies to trade organisations including trade unions, qualifying bodies (such as Nursing and Midwifery Council (NMC) and examination boards), and trustees and managers of occupational pension schemes as these are all considered areas of service provision. This guide does not cover these areas.Back to contents
Disability is defined by Section 6(1) of the Equality Act as follows:
‘A person has a disability for the purposes of this Act if he (sic) has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.’
Ultimately, as this is a legal definition, only a court or a tribunal can declare whether a person has a disability under the terms of the Act or not. Your employer may ask an Occupational Health service to say whether you are covered by the Act, but in reality all they can do is give an opinion. You may also wish to speak to the medical/ healthcare professionals involved in your treatment or care in order to ask their advice on whether you have the protected characteristic of disability.
Even if you recover from your impairment, you may still bring a claim against your employer if you are treated less favourably for having had that impairment.
The Act looks at a person’s impairment and whether it substantially affects their ability to carry out normal day-to-day activities. It does not provide an exhaustive list of day-to-day activities; these are considered to be things people do on a regular or daily basis including:
If you have an impairment that affects you in ways not listed above you may still be covered by the Act, but you would need to demonstrate what activities are affected and how these are affected by your impairment.
An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation, but its effects on more than one activity, taken together, could result in an overall substantial adverse effect.
A person may, have more than one impairment, any one of which alone would not have a substantial effect. In such a case, account should be taken of whether the impairments together have a substantial effect overall on the person’s ability to carry out normal day-to-day activities.
For example, a minor impairment which affects physical co-ordination and an irreversible but minor injury to a leg which affects mobility, when taken together, might have a substantial effect on the person’s ability to carry out certain normal day-to-day activities.
The cumulative effect of related impairments should be taken into account when determining whether the person has experienced a long-term effect for the purposes of meeting the definition of a disabled person. The substantial adverse effect of an impairment which has developed from, or is likely* to develop from, another impairment should be taken into account when determining whether the effect has lasted, or is likely to last at least twelve months, or for the rest of the life of the person affected.
*Likely in this context, should be interpreted as meaning that it could well happen, rather than it is more probable than not that it will happen.
Some progressive conditions (e.g. Cancer, HIV, Lupus and MS) are automatically considered as disability, so if you have one of these conditions, irrespective of how minor your symptoms may be, you are covered by the Act immediately after diagnosis.
Recurring or fluctuating conditions such as arthritis, epilepsy and certain mental health conditions may be covered even if the effects cease periodically due to a period of remission. However, the requirement for a long-term effect (see above) is still necessary. Remember that assessment considers a person as if they are not taking any medication or receiving treatment to ease or improve their condition.Back to contents
People registered as blind and some with other visual impairments and, people with severe disfigurements (includes scars, birthmarks, limb or postural deformation (including restricted bodily development), or diseases of the skin.Back to contents
It is unlawful for an employer to treat a non-disabled employee less favourably because they have supported or been witness for a disabled employee in a discrimination claim. This will be considered victimisation under the Act.Back to contents
You are not obliged to tell your employer that you are disabled or have described yourself as a disabled person. However, an employer may have a defence against a claim of discrimination if they were genuinely unaware of the person’s disability.
If you are applying for a job, prior to making a conditional offer of employment, an employer is not allowed to ask you about your health or disability except in the following circumstances:
If you are a disabled person, an employer must not treat you unfavourably because of something connected to your disability where they cannot demonstrate that what they are doing is objectively justified. This only applies if an employer knows or could reasonably have been expected to know that you are a disabled person. This is called discrimination arising from disability.
If you want your employer to make reasonable adjustments for you at work then you must inform them of your disability in order to ensure that they know they have a legal duty to put the adjustments in place.
An employer must be aware of your disability for you to have a claim for direct discrimination or discrimination arising from disability.
Certain types of discrimination, such as indirect discrimination, do not require that the employer be aware that you are disabled.
It is important that you do not assume your employer is aware of your disability because you have made occupational health aware of it. Your employer may know but, for reasons of confidentiality it is likely that occupational health will not have disclosed this unless you have consented to them doing so.Back to contents
This will depend on your individual circumstances and those of the employer.
When considering whether or not an adjustment is reasonable, employment law will look subjectively at the following:
If you have a case to request reasonable adjustments, you may find that an employer is more likely to view this as reasonable if there is funding to help meet the cost of it.
The Government provides a scheme called Access to Work that provides Disability Employment Advisers (DEAs) who can carry out workplace assessments and, make recommendation to your employer about reasonable adjustments which may be possible.
A DEA can also provide information to you and your employer about grants which may be available for employers to help meet the cost of making reasonable adjustments.
If an employer is reluctant or refuses to consider involving Access to Work or implementing their recommendations, this could serve as evidence of failure to implement reasonable adjustments.
It is unlawful for employers to victimise someone because they brought a discrimination claim, gave evidence in a case or, made an allegation of disability discrimination.
An example of harassment would be if you notified your employer of a need to take time off due to seeing your consultant regarding your disability. On your return to work, your manager confronts you in front of colleagues about taking time off without good reason and, your colleagues start to ignore you following this.
An employer also cannot harass you because you are associated with a disabled person e.g. a parent with a disabled child, or because they wrongly believe you to be disabled.
Once proven, an employer is not permitted to justify harassment and/ or victimisation.Back to contents
An employer may be able to justify discrimination arising from disability if they can show that it is a proportionate means of achieving a legitimate aim – this represents a real, objective consideration and if the aim is legitimate, is the means of achieving it proportionate? Generalisations will not be sufficient to provide justification. It is not necessary for that justification to have been fully set out at the time the provision, criterion or practice was applied.
Example: an employee has been on long-term sickness absence for 12 months absence due to their disability. The employee cannot say when, or if, they will be fit to return to their substantive post. The employer terminates the employee’s contract on grounds of capability due to absence (ill health).
This dismissal may be justified depending on the nature of the job, the size of the employer and the period of absence, because the job cannot be held open for an indefinite period of time due to the resource implications for the employer. However, the employer still has to follow a fair capability procedure as otherwise the employee’s dismissal could be unfair.
In practice, the employer will normally need to demonstrate genuine economic, technical and/ or organisational reasons behind any such act of disability related discrimination as outweighing the effects of the discrimination. They must also show that their duty with regards to reasonable adjustments has been discharged i.e. an employer will not be justified in treating a disabled employee less favourably if a reasonable adjustment would have prevented this treatment.
August 13 8 If an employer’s actions are justified, then a disabled person would not be successful in a claim for disability discrimination.
If you want advice about what you can and should expect of your employer in terms of supporting you as a disabled worker or; you would like to discuss whether what you are experiencing may be disability discrimination or have questions about the how the Equality Act may apply to you, you can contact the RCN Welfare Rights and Guidance Service.Back to contents
It is good practice to try and resolve any problems with your employer informally in the first instance. You could arrange a meeting with your employer, inform them of the problems that you are experiencing and ask them to take appropriate action to resolve these problems, for example, by making a reasonable adjustment as recommended by occupational health.
You may wish to discuss your situation with an adviser in the Welfare Rights and Guidance Service before you approach your employer for an initial discussion about your concerns. You should also consider speaking to your local RCN representative who, although they may not be able to take the matter up on your behalf, will be a valuable source of information and support that may later be needed if your case has to be progressed.
It is often the case that an informal discussion is all that is needed to get matters resolved satisfactorily. If an informal discussion is not successful then contact RCN Direct to discuss. They can advise you but if necessary they can also put you in touch with a local RCN representative. The RCN representative can support you from a distance or become actively involved in your case. One option could be a mediation session with the support of your representative or an independent third party. Your employer’s policy should outline what informal methods of dispute resolution are available in your workplace.
If you are not successful in getting the situation resolved on an informal basis or through mediation or; if the situation is more serious, for example, derogatory comments being made by colleagues about your disability, then you should consider taking formal action.Back to contents
If you are considering a formal grievance gather your local policies and it is very important that you contact us at the earliest opportunity. We will discuss your options in full and in confidence.
Most employers will have their own grievance policy which you should always follow and, notify your employer of your grievance in writing.
You should send a grievance letter (ideally by recorded delivery) to your employer. This letter should set out your complaint about the discrimination that you believe has occurred/ is present and any other action that you feel was unfair. The letter should be sent promptly and not later than one or two months after the discriminatory act took place.
Once your grievance has been lodged, your employer should arrange a formal meeting as soon as possible. This is known as a ‘grievance hearing’.
You are entitled to make a request to be accompanied at this meeting. You can take a work colleague or union representative, and you should contact us to arrange further support.
Both parties should agree time and place. Both parties should be allowed to explain their views and make suggestions of how things could be resolved. If the employer needs to take time to consider the grievance or take advice from other parties, this can be agreed by both parties and another meeting called. In some circumstances an investigation may be necessary to find out more. If this is the case then the meeting should be adjourned until the investigation has taken place.
Both parties should make every effort to attend the meeting(s). However in some cases where the employee may be exposed to a significant threat such as violence or bullying and harassment, they may be exempt.
After the meeting and/or investigation your employer should decide on what action they are going to take. It may be decided that no action is required. If a decision is made to take no action then this should be communicated to you in writing as soon as possible. If actions are to be taken to resolve the grievance then these actions should also be included in writing.
If you feel that your grievance did not reach a satisfactory conclusion then you have the option of appealing. If you wish to appeal you must inform your employer in writing of the basis of the appeal as soon as possible.
If you are dismissed, then generally you must appeal before complaining to an Employment Tribunal.
Check your local policy for more information on the procedure and timelines.Back to contents
Courts known as Employment Tribunals deal with discrimination in employment claims.
Employment tribunals are independent judicial bodies. A tribunal normally consists of a legally qualified judge and two other lay members. One lay person drawn from a panel of employer members and the other lay person drawn from a panel of employee members. In some circumstances a tribunal judge may sit without lay members.
The Employment Tribunal will usually only consider your claim if it receives your ET1 application form within 3 months of the date of the act of discrimination. It is essential that you seek advice as soon as you think you may have been discriminated against.
If you are out of time in bringing your claim, you might still be able to bring a claim before the Employment Tribunal if there are significant mitigating circumstances to explain the delay but, you will need to obtain advice from your local RCN representative or Regional Office about this. Contact RCN Direct as quickly as possible about pursuing this.
You can obtain the form ET1 from your local Jobcentre Plus or download it from the internet at www.gov.uk/employment-tribunals.
Applications to employment tribunals by RCN members should be made in conjunction with a local RCN representative. If you are considering a claim to an employment tribunal, please contact RCN Direct.
Further information can be found on the Justice website which applies to England, Scotland and Wales. If you live in Northern Ireland and have an employment dispute then information can be found on the Office of the Industrial Tribunals and the Fair Employment Tribunal (OITFET) website.
At present the Employment Tribunal does not charge a fee for making a claim. However, there are proposals to introduce fees into the employment tribunal system which are likely to take effect in 2013.
It is unlikely you will be asked to pay your employer’s legal costs if you lose your case.
You do not need to be represented by a solicitor or legal adviser in the Employment Tribunal. We recommend however, that you do seek advice and that your chances of success will be better if you have representation as disability discrimination cases can be complex.
The RCN will support you at an employment tribunal if you are in membership at the time of the incident and your claim is deemed to have a reasonable (over 51%) chance of success.
This decision on whether to provide case support will be made by your Regional Officer in conjunction with the RCN legal services department. Contact us in the first instance.
If the RCN decides not to take your case to an employment tribunal then you may wish to take forward the case, either with or without the help of a solicitor or other advice agency. In this situation the RCN is unable to assist with the costs of using external solicitors.
Additionally, Acas offers a publicly funded conciliation service which may be helpful to you. Conciliation is separate from the Tribunal process and unless you settle a complaint through conciliation, the tribunal will continue to process your case.
The Acas Helpline (08457 474747) can give information and advice about employment rights, but is not able to assist with preparing or presenting a claim to the tribunal.
If you have been dismissed for a reason relating to your disability, you may also have a claim for unfair dismissal in addition to a claim for discrimination.
If your employment started on/after 6 April 2012 to qualify for a claim of unfair dismissal, you must be employed with your current employer for two years. The qualification period for employment which began before that date is one year service with the same employer. However, there are certain circumstances where the qualifying period does not apply, for example, when the unfair dismissal is illegal (e.g. relate to whistleblowing, pregnancy).
Contact us for further advice as soon as possible if you have been dismissed as there are strict time limits for lodging claims and identifying the actual date of termination for the purposes of an unfair dismissal claim isn’t always easy.Back to contents
If you are successful in your claim and win your case, the Employment Tribunal may award you compensation for any financial loss you have suffered as a result of the discrimination and, this may include compensation for future loss of earnings. You may also be awarded compensation for injury to feelings and, in more serious cases, where the discrimination has led to you becoming ill, the Employment Tribunal may award compensation for personal injury.
A Tribunal can make a formal declaration that you have been discriminated against. It can also make a recommendation to your employer, such as a recommendation that your employer should make the reasonable adjustment that you had requested. In claims that involve unfair dismissal as well as disability discrimination, the Tribunal can recommend that you be reinstated. Whilst a Tribunal can make recommendations to your employer, it cannot force your employer to comply with them.Back to contents
A national organisation set up by the Government to monitor and tackle discrimination. It operates a telephone helpline for people who believe they are being discriminated against. EHRC has a wealth of useful and informative guidance which you can obtain via their helpline and in some cases, they are able to advise and represent people with discrimination claims. Freepost RRLL-GHUX-CTRX Arndale House Arndale Centre Manchester M4 3EQ Telephone: 0845 604 6610 (Mon, Tues, Thurs, Fri 9am-5pm and Weds 9am-8pm). Minicom: 0845 604 6620
A registered charity offering free confidential legal advice on disability discrimination in employment to disabled people. It is able to take on some cases of disabled employees or job applicants. 39-45 Cavell Street Whitechapel London E1 2BP Telephone: 0207 791 9800 Fax: 0207 791 9802 Email: email@example.comBack to contents