How to avoid disability discrimination claims

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Two big high street names have recently lost disability discrimination claims at Employment Tribunal.
So where did they go wrong?
What should they have done?

Disabilities obviously come in vastly varying forms but there are some basic principles for employers to adopt in all cases.

What is a “disability”?

The Equality Act 2010 creates the framework of protection against less favourable treatment for disabled people in Great Britain. For these purposes, a person is disabled if they have a physical or mental impairment that has a substantial and long-term negative effect on their ability to carry out normal day to day activities.

Employee had depression

An employee who worked for a branch of opticians Specsavers suffered from depression. She was late on a few occasions because her medication affected her sleep.  The employee made a successful disability discrimination claim after her employer made comments about her condition, including that he had “no sympathy” for her and that “everyone gets depressed sometimes”. In addition to these comments, he told her she would be dismissed if she was late for work on one more occasion.

Learning Points:

  • Employees can make a claim of ‘harassment’ to Employment Tribunal where comments related to their disability create an intimidating and hostile atmosphere;
  • Employers are not expected to have detailed knowledge on disabilities but are expected, where appropriate, to obtain expert medical opinion;
  • Employers are under a duty to make ‘reasonable adjustments’ for disabled employees. In this case, the employer could have considered being more lenient in its policy for employees to arrive on time for work because the employee’s lateness arose from her disability.

Employee had dyslexia

In this case, a manager at coffee chain Starbucks had dyslexia which her employer was aware of. Her role required her to record refrigeration temperatures in writing but, because of her dyslexia, she noted down incorrect figures. When she was dismissed as a result, she claimed disability discrimination at Employment Tribunal, which she won.

Learning Points:

  • When employers are aware that an employee has a disability, they should discuss it with the employee. Employers shouldn’t ignore it for fear that they may upset the employee; it is a necessary discussion to have, and to continue to have where appropriate, to find out how the employer can help support the employee;
  • Again, reasonable adjustments should have been considered which could have been, for example, introducing the facility to record figures etc in audio format instead of in writing.
  • Where dyslexia is concerned, other reasonable adjustments could be giving instructions verbally or in recorded audio format rather than in writing; or allowing the employee to work in a quiet zone because concentrating in loud locations can also be difficult.

The cost of discrimination

There is no limit to the compensation that can be awarded for discrimination claims. The financial loss suffered by the employee is considered, which could be high if the employee was dismissed and could show that it would be difficult to obtain other work in their field. Injury to the employee’s feelings is also considered.