Laying out your claim
When you are claiming indirect disability discrimination at Tribunal, you want to clearly argue that a company policy or practice negatively affects disabled people. For example:
- A job advert states that all applicants must have a driving licence. This puts some disabled people at a disadvantage because they may not have a licence because, for example, their disability means they are not allowed to drive. If the advert is for a job where the requirement to drive can’t be objectively justified, this will be indirect discrimination.
- A diabetic employee needs regular snacks throughout the day in order to maintain their blood sugar levels. A company policy which only allows one break per day at lunchtime could be indirectly discriminatory if no adjustments to it were made to help the employee.
- An autistic job applicant was indirectly discriminated against when she failed a test which was a prerequisite of the job application process. The test was multiple choice, which meant that due to her autism, it was more difficult for her to complete than if she had been allowed to give narrative answers.
With indirect disability discrimination, it’s important to know that sometimes indirect discrimination is lawful if it can be justified, for example if there are strong business reasons for the practice.
Also, with indirect disability discrimination, your employer can be liable for the acts of its employees, as well as the employees being personally responsible.
Proving your claim
You don’t need to attach evidence to a Tribunal ET1 claim, but it’s a good idea to back up your claims by mentioning the evidence you intend to use. For indirect disability discrimination claims, people typically refer to evidence such as company policies, reports, emails, letters, meeting notes, medical evidence and witness evidence.
What you can ask for in your indirect disability discrimination claim
If you’re successful in a Tribunal claim, you will be awarded a “remedy”. This mainly includes financial compensation, like loss of earnings. It can also include some non-financial remedies too.
Common remedies people ask for at Tribunal
Some of the key remedies you can ask for at Tribunal are:
- The money you have lost from being out of work, or working in a lower-paid job.
- The money that you expect to lose in the future from being out of work, or working in a lower-paid job.
- Wages that you are owed, including holiday pay and notice pay.
Discrimination-specific remedies
As well as the common remedies that you can ask for, discrimination-specific claims also have the option to include an “injury to feelings” remedy. This is compensation which you can be awarded when you have been hurt or distressed because you have been discriminated against.
Injury to feelings is generally awarded within one of three “Vento bands” depending on severity.
For example, Glen won £10,000 plus interest for injury to feelings after he made numerous claims to the Employment Tribunal, and was successful in a number of those claims, including an indirect disability discrimination claim. Glen, who was a long-serving and dedicated employee, had been dismissed from his role after undergoing multiple surgeries on his heart.
Real indirect disability discrimination cases you can learn from
Total award: £17,007.59 (including interest)
Outcome: there was a clause in her employment contract which allowed the firm to dismiss employees after 26 weeks’ absence, but the Tribunal found that applying the clause to her was indirectly discriminatory, since it would have a disproportionate impact on those with a serious medical condition. She also made a number of other claims and was successful in claims for unfair dismissal, discrimination arising in consequence of disability, and breach of contract.
Total award: to be confirmed in a separate Remedy Hearing
Outcome: the Tribunal found that she had suffered indirect disability discrimination when she was made redundant. Interestingly, the employee was not disabled herself, and the discrimination was because of her association with her elderly mother. She also made a number of other claims and was successful in her claims for unfair dismissal and indirect sex discrimination.
Further reading