Two real examples of subtle disability discrimination at work and what happened next
Nearly one in five working adults is disabled, and around a third of those feel there is a lot of prejudice towards disabled people, according to the disability charity Scope.
Disability discrimination is not always direct and obvious. If you are disabled, then your employer has to adapt your working practices - make reasonable adjustments - so you’re not put at a disadvantage. “Failure to make reasonable adjustments” is a very common reason that employers are brought to Tribunal.
Sometimes the discrimination is one step removed from your disability, but clearly connected. This is known as “Discrimination arising from disability”.
We’ll look at some claims under each of these categories, and why the arguments succeeded.
Example 1: failure to make reasonable adjustments
Kirsty, a mobile supervisor for a car park management company, had been working across their 32 car parks for over 10 years. She had sciatica and mobility difficulties, which made driving for long periods very difficult and meant it was hard for her to get in and out of vans. She managed this through painkillers and taking regular breaks.
In 2018, a different company won the tender to provide the car park services, and because of this Kirsty’s employment was transferred to the new company, meaning that she had a new employer.
The new company told her that she would now need to cover a total of 50 car parks, and carry out additional duties, such as litter-picking. They also told her she needed to start working weekends.
Kirsty explained that her disability meant that she could not do these additional duties, as it would mean more driving, moving around and heavy lifting. She continued doing her job as best as she could, but didn’t work weekends because of childcare commitments.
She eventually had a meeting with the employers to discuss the issue of weekend work. This was a very difficult meeting; she felt that the employers had been dishonest, asked aggravating questions, and then not allowed her to put her point across.
There was no formal follow up to the meeting, and a few days later her daughter wrote a letter of complaint. She was signed off work with stress, anxiety and depression.
The employer treated this letter as an official grievance - despite the fact that Kirsty hadn’t written it - and wrote to her arranging a grievance meeting. However, this meeting was for the next day after she got that letter. She was very upset by this, and asked to communicate by letter instead to protect her physical and mental health. They didn’t reply, and instead sent her a grievance outcome letter dismissing the grievance, recording that she had failed to attend the meeting.
She appealed this decision, but that was also dismissed. No adjustments were made to Kirsty’s working practices.
Section 20 of the Equality Act 2010 refers to employers having a “provision, criterion or practice” (PCP) that puts a disabled person at a “substantial disadvantage” compared to someone who is not disabled. The definition is deliberately broad, and covers any kind of rule, formal or informal policy, practice, or decision, written or implied.
An employer has a duty to make reasonable adjustments where a PCP substantially disadvantages a disabled person.
Kirsty put in claims to the Employment Tribunal for failure to make these reasonable adjustments (as well as some other claims).
This claim succeeded because the Tribunal felt that she met the legal definition of being disabled from both a physical and mental health perspective, and that the company was applying the following PCPs which substantially disadvantaged her:
- Area of work: requiring employees to work across an increased operational area
- Meeting location: locating meetings at various different places
- Duties: increasing the number of duties, including litter picking
- Scheduling: requiring employees to attend meetings at short notice
- Attendance: requiring employees to attend meetings in person (rather than in writing).
What you can learn from this
If you are thinking of making a claim for failure to make reasonable adjustments, you first have to make sure you meet the definition of disability under Section 6 of the Equality Act, and that your employer knew or could reasonably be expected to know about your disability.
You then need to show that your employer has a “provision, criterion or practice” that substantially disadvantages you compared to a non-disabled employee, and that your employer was aware that you were likely to be placed at this disadvantage. If this is the case, they have a responsibility to make reasonable adjustments.
Unfortunately, there are no set criteria as to what a PCP might look like, or what counts as a reasonable adjustment. It’s not up to the employee to suggest what adjustments ought to be made, but if you do, your employer should consider these and whether they are reasonable.
Example 2: discrimination because of something arising from a disability
Jack had worked in a warehouse in a manual role since 1997, and had been Acting Manager for a number of years, being paid an “acting up allowance”. In 2019, he became seriously unwell with sciatica and back pain which led to a long period of sickness absence.
When he went off sick, they stopped paying the acting up allowance, and eventually removed the role from him altogether. He put in a number of claims to the Employment Tribunal, including two successful claims around discrimination arising from disability.
Section 15 of the Equality Act talks about discrimination “because of something arising in consequence of” a disability. In this case, Jack was not directly discriminated against for being disabled, he was discriminated against because he had been absent on sick leave for a long time - and this was as a consequence of his disability.
His claims for “Section 15 - discrimination arising from disability” were therefore successful.
What can we learn from this?
Discrimination due to something arising from a disability is a lesser-known type of discrimination, but is worth understanding if you feel you have been mistreated because of your disability, for example if you have had a long sickness absence.
How to progress your disability discrimination claim
There are several kinds of discrimination related to disability:
- Discrimination from something arising from a disability
- Failure to make reasonable adjustments.
If you’ve been mistreated, it’s important to put in the right type of claim.
If you are thinking of bringing your case forward, our platform can help you understand the law, gather your evidence and start a claim in the Employment Tribunal. If you need to consult a lawyer, this could save you a lot of time, and money by having it all in one place. Sign up for your free account.