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> Disability Discrimination
Disability Discrimination
An employer discriminates against you where:
The concept of ‘less favourable treatment’ under the DDA is different from that used in the RRA and the SDA, in that there is no requirement to compare 'like with like'. Thus, if you are alleging disability discrimination against your employer you do not need to find a comparator who is the same position as you. All that is required is that the reason for the less favourable treatment is related to your disability, and someone else who did not have your disability, and therefore to whom the reason would not apply, would not be treated in the same way.
This is a complicated area of law, but the following example may help.
You are injured at work, become disabled and go off sick for five months. Your employer then dismisses you as you have not been able to perform your job. This will be disability discrimination. The reason why you were dismissed was related to your disability – you went off sick because of your disability. This is less favourable treatment than someone who did not have your disability, as they would not need to go off sick for five months.
However, unlike direct discrimination, disability discrimination is not unlawful if the employer can justify it. Justification must be based on a reason which is material to the circumstances of the particular case and is substantial.
The defence has a very low threshold for an employer to overcome and it weakens the protection offered by the DDA. The courts have decided that the employer has a wide margin of discretion in relation to justification and tribunals should only interfere where the employer has acted outside that wide range. The justification put forward by the employer has to relate to the individual circumstances of the case.
- For a reason related to your disability,
- he or she treats you less favourably,
- in comparison with others to whom that reason does not or would not apply, and
- the employer cannot justify the less favourable treatment.
The concept of ‘less favourable treatment’ under the DDA is different from that used in the RRA and the SDA, in that there is no requirement to compare 'like with like'. Thus, if you are alleging disability discrimination against your employer you do not need to find a comparator who is the same position as you. All that is required is that the reason for the less favourable treatment is related to your disability, and someone else who did not have your disability, and therefore to whom the reason would not apply, would not be treated in the same way.
This is a complicated area of law, but the following example may help.
You are injured at work, become disabled and go off sick for five months. Your employer then dismisses you as you have not been able to perform your job. This will be disability discrimination. The reason why you were dismissed was related to your disability – you went off sick because of your disability. This is less favourable treatment than someone who did not have your disability, as they would not need to go off sick for five months.
However, unlike direct discrimination, disability discrimination is not unlawful if the employer can justify it. Justification must be based on a reason which is material to the circumstances of the particular case and is substantial.
The defence has a very low threshold for an employer to overcome and it weakens the protection offered by the DDA. The courts have decided that the employer has a wide margin of discretion in relation to justification and tribunals should only interfere where the employer has acted outside that wide range. The justification put forward by the employer has to relate to the individual circumstances of the case.
