Disability discrimination is still a widespread problem, and there’s much that can be done to address this. Here, we outline how to help protect your business from accusations of disability discrimination.
Under the Equality Act 2010, it is illegal for employers to discriminate against someone on the basis of their race, religion, sex, disability, sexual orientation, age, pregnancy/maternity, marriage/civil partnership and gender reassignment.
Since the Act’s introduction, these nine categories – known as ‘protected characteristics’ – have afforded greater legal protection for many people across the UK.
As we quickly approach the tenth anniversary of the Equality Act, there are still a significant number of organisations that are flouting their obligations. In recent analysis of the discrimination enquiries we have received in the last year, one group in particular seemed to dominate the figures.
Out of the 1,725 discrimination enquiries we received over the course of 2018, almost two-thirds (1,100 or 64% involved proposed claims of disability discrimination – significantly more than any other protected characteristic under the Equality Act.
Most of the alleged offenders in these cases (over 70%) concerned public sector bodies.
Public sector bodies listed as the worst offenders
It’s clear from these figures that many public sector bodies still have a way to go in addressing issues of inequality and discrimination.
Many of the enquiries we received in 2018 concerned public sector bodies failing to make reasonable adjustments to accommodate disabled employees or disabled members of the public engaging with them as service users.
Often, on the face of it, these are relatively small changes that would make the world of difference to the experience of those living with a disability.
Not all disabilities are visible and care is needed to ensure that training recognises that.
There is a wealth of evidence to suggest that diversity and inclusion, particularly in the workplace, leads to greater innovation, better opportunities for all, access to the very best talent and ultimately a better business performance.
Different views from a diverse workforce ultimately lead to better business decisions. It’s imperative, therefore, that both the public and private sectors step up their game.
So what should organisations do to avoid falling foul of the Equality Act?
Clear communication counts
As mentioned, it’s important that all employees fully grasp what the Equality Act actually is and the different protected characteristics that fall under it.
As an organisation, you will be held responsible for the acts of your employees, contractors and representatives, so clear communication of your obligations under the legislation is imperative.
Train employees
Ideally, all employees should be provided with specifically tailored equality and diversity training at commencement of their employment and refresher training at regular intervals thereafter.
Many organisations now include this type of training as part of their induction process.
It’s also important to mention that not all disabilities are visible and care is needed to ensure that training recognises that.
Policies
Ensure you have a comprehensive equality and diversity policy (compliant with the Equality Act 2010) that can then be referred to by employees.
There should be supervisory structures in place whereby reasonable adjustments to any policies that may result in detriment to the service user if applied rigidly, can be considered and amended on a case-by-case basis if it’s appropriate.
How should you respond if you receive a complaint?
As an entity that could be defined as an organisation undertaking a public function and/or a service provider under the terms of the Equality Act 2010, it is important to know how to deal with complaints of discrimination raised by service users.
If you do receive such a complaint, there are some steps that can be taken to ensure that the matter can be resolved as quickly and cost effectively as possible.
Taking urgent action, keeping the service user updated as to the progress of the investigation and providing a detailed response can lead to a swift resolution.
Allegations of discrimination can stem from an individual feeling that they have been treated unfavourably directly as a result of their protected characteristic.
If direct discrimination can be proven then this can also justify claims of harassment under the Act.
You must also be mindful, however, that the stringent application of inflexible policies, criteria or practices across your client base, which can be considered to cause a detriment to an individual as a result of their protected characteristic, can give rise to claims of indirect discrimination.
In cases of disability discrimination this can also include claims for failures to make reasonable adjustments.
Complaints
It is likely that you will be first notified of a potential discrimination claim by way of a formal complaint from a service user.
Should this be the case, it is important that you immediately acknowledge the complaint and commence a thorough and detailed investigation of the matter.
Taking urgent action, keeping the service user updated as to the progress of the investigation and providing a detailed response can lead to a swift resolution.
If an acknowledgement of and/or a formal response to the complaint are not forthcoming then it is likely that the service user will escalate the matter.
This could result in the submission of a formal complaint to the relevant regulatory body or ombudsman or alternatively, the instruction of a solicitor with a view to commencing legal proceedings.
A legal letter before action
If the issue of legal proceedings is intended, claimants are required by the courts to follow what is known as the pre-action protocol.
This requires the claimant to send a detailed letter setting out the acts of alleged discrimination in full, the relevant applicable law that they seek to rely upon, and the remedies that they seek from you.
The aim of the protocol is to give the parties the opportunity to resolve the issues involved without it becoming necessary for court proceedings to be issued.
You should therefore be given a reasonable opportunity to respond to this letter.
Claimants will usually request a substantive response to their proposed claims within 21 days. However, extensions of up to 90 days, to allow for thorough investigation, (also giving you the time to seek specialist legal advice), can be agreed.
You must engage fully in the spirit of the protocol, namely resolution.
If you fail to do so by providing a delayed response or failing to substantively respond to the allegations raised, the service user will likely issue court proceedings.
Act fast
Short deadlines for discrimination claims to be issued in the county courts are applied strictly.
A claimant must issue their claim in the county court within six months less one day of the alleged discriminatory act, (if it is an isolated incident), or the last act of discrimination (if there has been an ongoing series of alleged discriminatory acts.
Discrimination of all kinds is a persistent issue and the figures in this article underline how there is still much to do.
You should anticipate the actions of the claimant. The strictly applied limitation period will force the issue of proceedings and this can only be best avoided through urgent action being taken to resolve the matter in the early stages.
The Equality Act 2010 is an extremely complex piece of legislation. It is relatively new in its application and is therefore relatively untested.
It is therefore recommended that you seek the advice and assistance of a legal firm specialising in this niche area of the law immediately upon receipt of a letter before action.
You should ensure that at the complaint investigation stage, you gather all relevant information that you hold which relates to the complaint. Collect your evidence.
This can include collating all related correspondence you have had with the service user in respect of their engagement with you; notes of employees; CCTV footage of any incident alleged and conducting investigatory meetings with all employees who are the subject of the allegations raised or who may have witnessed the alleged incidents.
Such action will assist you in your initial responses to the service user and will assist your legal representative in reaching a conclusion as to the course of action to be taken in potentially defending a county court claim or pursuing resolution of the matter through an out of court settlement if necessary.
Discrimination of all kinds is a persistent issue and the figures in this article underline how there is still much to do.
Of course, many organisations, both public and private have made significant strides forward when it comes to championing diversity and inclusion, but many service users would argue it’s simply not enough. Now is the time to put that right.
Maria is a senior associate solicitor in the dispute resolution department at Stephensons, managing the civil and employment discrimination team.
Interested in this topic? Read HR leadership: boosting inclusivity in your workplace
