Greater Manchester Pay and Employment Rights Advice Service Factsheet

Disability at Work

This factsheet is about your rights, at work or when applying for work, under the Disability Discrimination Act (DDA) 1995 which was amended on 1^st October 2005. On 1^st October 2010 the government introduced the Equality Act which made it unlawful for employers to discriminate against workers because of “protected characteristics”, disability being one of the characteristics. We are currently producing an updated version of this factsheet, contact us to request updated information when it is available.

Who does the Act cover?

To be covered you must be classed as disabled under the Act, and work in employment which is covered by it.  You are classed as disabled if you have a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities.

• Physical impairment: includes impairment to the senses e.g. sight and hearing.
• Mental impairment: includes learning disabilities and mental illness.
• Substantial: more than minor or trivial.
• Long-term: has lasted or likely to last at least 12 months or for life.
• Day-to-day activities: activities carried out by most people on a regular basis and must include one of a list of categories such as speech, hearing or sight, mobility, ability to carry, lift or move ordinary objects.

You are also covered if you have a progressive condition such as cancer, HIV infection, multiple sclerosis and muscular dystrophy.  You are covered from the date of diagnosis of a progressive condition.

You are covered if you have a severe disfigurement, even if it has no effect on your ability to carry out ordinary day-to-day activities.

You are also covered if you have had a disability in the past, even if you have recovered or are in remission.

If you take medication or use equipment or aids to help your disability, these are not taken into account when considering whether there is a ‘substantial’ effect.  The use of aids such as spectacles and contact lenses to correct sight however is not covered by this rule.

You are covered regardless of the number of workers your employer has working for them unless you work in a private household where making adjustments may either disrupt the household or disturb someone living there.  In such circumstances an adjustment may not be reasonable.

In October 2004 the DDA was extended to cover all employment except within the armed forces.  The definition of “employee” used in the DDA is very wide and covers anyone working under a contract of service or apprenticeship or a personal contract to do any work.  Besides agency workers, other temporary workers, homeworkers and self employed workers who were already covered, the DDA now specifically covers office holders, partners in firms, barristers and advocates, police officers, trade organisations, qualification bodies, and work experience providers.

Your protection under the Act

Direct discrimination

The DDA says that an employer’s treatment of a disabled worker is direct discrimination if it is:

• because of the disability;
• less favourable than the treatment that a worker without that disability would get;
• and the relevant circumstances of the worker with whom the comparison is made are the same as, or not materially different from, those of the disabled worker.

Example A partially-sighted woman is not short-listed for a job which involves word processing.  She meets all the requirements of the job and person specification but the employer wrongly assumes that she would not be able to use a computer.  The employer has directly discriminated against this job applicant by treating her less favourably than other applicants who met the specifications but who were short-listed for the post.

Reasonable adjustments

Employers have a duty to make reasonable adjustments to their premises or working arrangements where a provision, criterion or practice places a disabled person at a substantial disadvantage compared to people who are not disabled.  Besides the workplace itself, this requirement covers recruitment and selection, terms and conditions of employment, promotions, transfers, training or any other workplace practice.  An employer cannot justify a failure to make reasonable adjustments where necessary.

Examples: Reasonable adjustments can include altering a disabled person’s working or training hours; assigning a disabled worker to a different place of work or training; arranging training or mentoring for the disabled worker or anyone else; providing supervision or other support.

Disability-related discrimination

This is slightly different from the direct discrimination defined above as it works in an indirect way.  Direct discrimination occurs because of the disability; disability-related discrimination occurs when the reason for it relates to the disability but is not the disability itself.  Unlike direct discrimination, an employer may be able to justify less favourable treatment unless s/he has failed to make a reasonable adjustment.

Example An employer dismisses all employees who have taken six months sick leave from work.  This indirectly discriminates against disabled employees who generally take more sick leave than able-bodied employees.  To avoid a claim of disability-related discrimination, the employer should make a reasonable adjustment to the policy to ensure that disabled employees are not disadvantaged by it.

Harassment

The Act also outlaws harassment of disabled workers for reasons relating to their disability.  It defines harassment as unwanted conduct which violates workers` dignity, or which creates an intimidating, hostile, degrading, humiliating or offensive environment at work.  The intent to cause the above effects is enough, regardless of the actual effect on the disabled person.  If there was no intent to harass, conduct can still amount to harassment where it could be reasonably considered as having those effects.  Post-employment harassment is also outlawed.  The DDA makes it unlawful for employers to harass former employees, or to subject them to any other detriment.

Example Harassment occurs if a work colleague of a person disabled by a speech impediment makes jokes about it either to his/her face or behind his/her back to other colleagues.

Victimisation

The Act also covers you if you are victimised for taking or trying to take action under the Act.  People who help you complain about discrimination are also covered.  The Act also covers people who:

• take an employer to an Employment Tribunal under the Act
• give evidence or information for a case
• help you under the Act
• allege that someone has ignored the Act’s provisions
• are believed to have done any of the above

What you can do

Raising a grievance

You should first of all make your employer aware of any problems you may be having at work because of a disability by telling your manager about it, informally at first.  You might find it useful to give her/him a copy of this factsheet or other written information you may have about your rights.  If the informal approach does not work, then you should send your employer a grievance letter about it; see our factsheet Grievances for information about doing this. If you have a written contract and/or a staff fhandbook then you should check to see if that contains anything about the company`s policy regarding disability at work.

Taking your complaint to Employment Tribunal

You can take your complaint straight to Employment Tribunal, but if you haven`t sent the grievance letter then any compensation that you may be awarded may be reduced.  You must make your complaint to the Tribunal within 3 months of the act you are complaining about, or if you are complaining about a series of acts, then the date of the last act.

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The Tribunal can order the employer to:

• give a declaration of your rights;
• pay compensation and/or
• recommend that within a certain time, reasonable action is taken to prevent or reduce the adverse effect.

You can also get compensation for injury to feelings even if no other compensation if awarded.

Getting Help

Besides ourselves there are other organisations that can help you:

Greater Manchester Coalition of Disabled People is a local organisation which offers advice and support to disabled people; 0161 273 5154 (voice & minicom); fax 0161 273 4164; website www.gmcdp.com; email This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Breakthrough UK also advises and supports disabled people across Greater Manchester. Phone 0161 273 5412, website www.breakthrough-uk.com

Equality & Human Rights Commission advises on all types of discrimination; call on 08456 046610 or visit the website www.equalityhumanrights.com.

Disability Law Service gives free legal advice on 0207 791 9800

Law Centres and Citizen Advice Bureaux (CAB): contact Community Legal Services (CLS) on 08456 081122 to find the nearest advice service to you.

CLS direct gives advice by telephone; call 08453 454345.

Trade unions: If you are a member of a trade union, they should be able to help you. If you don't belong to a union, but would like information about which one would be best for you, ring North West TUC on 0151 236 5432.

Advisory, Conciliation and Arbitration Service (ACAS): ACAS can provide you with information regarding the law and employment issues 08457 47 47 47.

This fact sheet is intended as a general guide and is not a full statement of the law.  Please seek advice before taking any action.

If you need more information about pay and employment rights, contact

Greater Manchester Pay and Employment Rights Advice Service

( 0161 839 3888 phone 0161 839 3883 fax

or write to us at

4^th Floor, Swan Buildings, 20 Swan Street, Manchester M4 5JW

We provide telephone advice only and cannot see people face to face

or visit our website: www.gmemploymentrights.org.uk

Greater Manchester Pay and Employment Rights Advice Service is an independent research and information body funded by all local authorities in Greater Manchester under the AGMA grants scheme