Can unfavourable treatment be justified?

Nick Singer

30 October 2018

Discrimination for something arising out of or as a consequence of a disability?

What’s meant by unfavourable treatment? This is the question I put to expert barrister Nick Singer.

Hello, discrimination arising out of a disability, can unfavourable treatment be justified? That's the question I put your expert barrister that Nick Singer.

Yes, generally speaking, if you are treating someone badly just because you don't like the fact that they are disabled, as you don’t like disabled people, yeah like that you can't justify it. But in the areas of law like this where there is a balancing act to be had between an employee and employer the law does give a not an employer a chance to justify it. And so for example, if you are dismissing someone because they have had a lot of absences, if those absences arise in consequence of their disability yes that can be discrimination arising from a disability but you might be able to justify it.

The test is whether you have a legitimate aim and you fulfil that legitimate aim in a proportionate way, so a legitimate aim of course in absences; look we've got to have a functioning workforce if we've got our workers who aren’t there we're going to collapse as a business that's a legitimate aim of course. But is it proportionate, is there a more sensible way to do it so it may be I'll give them another chance it may be allowing an extra 10 days, that is a question of fact for the tribunal and but yes the law does allow a balance between employer and employee in that case?

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