What are examples of discrimination arising from a disability?

Nick Singer

09 October 2018

Discrimination arising from disability: What are examples of discrimination arising from a disability?

Discrimination arising from or as a consequence of a disability is a concept which often catches employers out at an employment tribunal and below is a few examples:

1. Dismissing an employee for disability-related absences

In Griffiths v Secretary of State for Work and Pensions, the Court of Appeal held that dismissing an employee for disability-related absences that trigger the Companies attendance management policy could constitute discrimination arising from disability.

2. Reasonable adjustments during the redundancy process

In Waddingham v NHS Business Services Authority, the employee, who was having cancer treatment, was required to undergo a competitive interview process during a redeployment exercise.

The employment tribunal held that the employer’s failure to make reasonable adjustments during the process amounted to discrimination arising from disability.

In London Borough of Southwark v Charles, the employee suffered from a disability that caused an inability to attend administrative meetings, including redeployment interviews.

The EAT held that the employer’s requirement for the employee to attend redeployment interviews constituted discrimination arising from disability.

3. Failing to consider suitable alternative employment

In Horler v Chief Constable of South Wales Police, the employment tribunal found that the police had not met its duty to make reasonable adjustments and awarded over £200,000 because it had failed to consider alternative posts for a police officer who was unable to carry out frontline duties because of a disability.

4. Giving negative verbal references or withdrawing job offers

In Pnaiser v NHS England and another, the employee’s disability meant that they had a number of lengthy absences and regularly needed to work at home.

The Employment Appeal Tribunal held that her former employer’s negative verbal reference and prospective employer’s subsequent withdrawal of a job offer both amounted to discrimination arising from disability.

5. Making reasonable adjustments to bonus schemes

In Land Registry v Houghton and others, the Employment Appeal Tribunal held that the employer’s failure to pay a bonus to employees was because the employees had received a disability-related sickness absence warning and were discrimination arising from disability.

What are examples of discrimination arising from a disability?
This is the question I put to employment expert and barrister Nick Singer

Video Transcript

Hello, my name is Mark Ferron MD of Castle Associates and if you like to understand some examples of discrimination arising out of a disability then please watch this short video an expert barrister Nick Singer will explain.

One of the classic ones you see all the time is when someone is dismissed, that's unfavourable treatment, for an absence and if those absences or the absence arise in consequence of their disability, then that could potentially be discrimination arising from disability, subject to a defence where you can justify as an employer.

I've also seen cases where someone's committed an misconduct perhaps they've made a serious mistake and if that mistake arises in consequence of their disability, then that could be unfavourable treatment arising in consequence of their disability.

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