As some of you will know I've been faced with some challenges getting back to my job. I'm in the lucky position of having worked in equality and disability for years and have good contacts. By the most incredible chance we have also had a change of senior management just at the time I'm fighting my case so it looks as though my 10 month battle will see progress. For those of you considering going back to work I thought it would be helpful to post up information recently provided to me by a friend who has spent some considerable personal time researching the issues for me. I'm sharing this with you as it was a gift and I'm sure that many of you are like me and not in a position to pay for such detailed legal advice.
The Equality Act 2010 (EA 10) has consolidated old legislation such as the Disability Discrimination Act 1995. The Act is also supported by the Disability Regulations 2010, the Code of Practice on Employment and also guidance.
People with cancer have a protected characteristic under section 4 of EA 10. Disability is defined under section 6. Under Schedule 1, para 6 of EA 2010, a person with cancer is automatically considered legally disabled from the time of diagnosis.
There are different forms of discrimination stated in the Act:
- Direct Discrimination
- Failure to make reasonable adjustments
- Discrimination arising from disability
- Indirect discrimination
Direct Discrimination - Section 13:
This means that you have received less favourable treatment because of your disability, compared to someone who does not have a disability. The intention of the employer is largely irrelevant and it does not matter if the employer argues that they thought it was in your best interests.
To prove direct discrimination you need a 'comparator' - so a person who does not have the disability but who has the same skills or abilities as the disabled person.
Failure to make reasonable adjustments - Sections 20 and 21:
This is a new kind of discrimination based on disability. Basically the employer discriminates against a disabled person if he fails (without justification) to make reasonable adjustments. There are three different requirements but probably the most relevant is section 20(3) - where a provision, criterion or practice of the employer puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled. This section covers the way things are done, such as changing a practice in the workplace. The code of practice states that section 20(3) should be construed widely and include both formal and informal policies, rules, one-off decisions and actions etc. It applies to contractual arrangements and working conditions.
Reasonable adjustments could include, for example, allowing a gradual return to work after extended leave due to the disability.
The onus is on the employer to show that he has made reasonable adjustments once it is shown that the disabled person has been placed at a substantial disadvantage compared to someone who does not have the disability. It is an objective test which can look at the cost of adjustments and the extent of any disruption. So basically a cost-benefit balancing act.
With disability, an employer is often obliged to discriminate positively in favour of a disabled person.
In the case of Archibald v Fife Council (although under the old Disability Discrimination Act 1995), the decision in this case made it clear that employers need to consult the employee before making decisions about reasonable adjustments.
Discrimination arising from disability - Section 15:
This means you are treated unfavourably because of something arising from or related to the disability. The only defence, so to speak, is that the employer shows that this treatment is a proportionate means of achieving a legitimate aim. Something related to disability could be taking time off to attend hospital appointments. With this section, you do not need to compare the treatment against someone who does not have a disability.
Indirect discrimination - Section 19:
This is another new provision relating to disability. It occurs when a policy or rule that applies to everyone in the same way has a particular disadvantage for people with a disability. It will be discrimination unless the employer can objectively justify it. An example of indirect discrimination would be an employer looking at the amount of sick leave people have taken to determine redundancies. This would obviously be a disadvantage for disabled people.
Harrassment - Section 26:
This relates to unwanted conduct or behaviour related to a disability which has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the disabled person.
Victimisation - Section 27:
This occurs when a disabled person is treated badly because they have made a complaint about the discrimination they have suffered.
Look for the macmillan publication, The Equality Act 2010 and Cancer - How it Affects You - A Guide for Employers) which is useful for examples of certain types of discrimination.
There is also a video illustrating how appallingly employers can be at hhttp://www.macmillan.org.uk/Cancerinformation/Livingwithandaftercancer/Workandcancer/Supportforemployees/SupportForEmployees.aspx
The ACAS code useful as a tribunal will look at whether the employer and employee have followed the code. Please see this link: acas.org.uk/index.aspx?arti...
If a disabled person does need to pursue a claim there is no eligibility criteria as such but they would need to submit a claim form within 3 months of the last act of discrimination on a form ET1. Compensation for disability discrimination is unlimited and is not capped.