22 January 2020

Following the abolition of employment tribunal fees in mid-2017, there has been a steep rise in disability discrimination claims.

The latest Ministry of Justice tribunal statistics show disability discrimination claims have increased 26% to 6,919 claims in the 12 months to April 2019, compared with 5,477 for the previous year. A further 3,657 claims have been submitted in the six months to September 2019.

The reported rise in the number of claims is substantial but there will undoubtedly be many more cases which have settled before employment tribunal proceedings have been raised. The numbers for such claims are not recorded. The statistics should serve as a stark reminder to employers of their potential liability for disability discrimination.

Disability is defined in the Equality Act 2010 as a physical or mental impairment which has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities. An impairment is deemed to be long-term if it has lasted (or is likely to last) at least 12 months.

Claims for disability discrimination can occur where an employee has been treated a certain way because of their disability or because of something arising in consequence of their disability. A claim can also be made if an employer applies a practice which indirectly discriminates against a disabled employee, or if the employer has failed to make a reasonable adjustment.

Liability of the employer can only arise if the employer knew or ought reasonably to have known about the employee’s disability. In determining this question the employment tribunal will look at all of the information available to the employer. It may be difficult for the employer to argue successfully that it could not reasonably have known of the employee’s disability, even if it is not self-evident or only impacts in relation to certain duties or responsibilities.

Examples of so-called hidden or invisible disabilities include Asperger’s syndrome, autism spectrum disorder (ASD), attention deficit hyperactivity disorder (ADHD), dyslexia, dyspraxia, dyscalculia, obsessive compulsive disorder (OCD), post-traumatic stress disorder (PTSD), diabetes, epilepsy, depression and other mental health conditions.

Whilst a complex area, some useful steps for employers to take to raise awareness and help avoid claims include:

• Encouraging an open dialogue with employees regarding physical and mental health to understand whether there are any reasonable adjustments which can be made (this may include implementing a Mental Health Policy for example);
   
• Implementing an Equal Opportunities Policy and training all staff in the organisation about equality and the legal protections which exist against discrimination; and
   
• Ensuring that proper enquiry is undertaken before any disciplinary proceedings to determine whether the alleged conduct may relate to a disability.

Please contact Jacqueline McCluskey or another member of our Employment Team if you would like to discuss any aspect of this blog.

Contacts:

Jacqueline McCluskey, Partner & Accredited Specialist in Employment Law
E: jmcc@bto.co.uk T: 0131 222 2939 

Katie Hendry, Trainee Solicitor khe@bto.co.uk T: 0141 221 8012