Legislation overview

The main piece of legislation governing disability discrimination in Great Britain is the Equality Act 2010.

Discrimination claims may be made in an employment tribunal within three months from the date of the last discriminatory act. The tribunal may consider a complaint outside that time limit if it considers it just and equitable to do so. Before making discrimination claims, Acas early conciliation must normally be attempted and this also extends the time limits for claims.

The Act is supplemented by a statutory Code of Practice on the employment aspects of the legislation, which employment tribunals take into account, and non-statutory guidance.

The Equality and Human Rights Commission (EHRC) website also has a wide range of information on discrimination law, including disability discrimination.

Information on disability discrimination in Northern Ireland is available on the Equality Commission for Northern Ireland website.

These Q&As focus on the employment relationship and the duties owed by employers towards employees. However, disability discrimination protection extends far beyond the employment relationship and includes, for example, the provision of goods and services.

As with other 'protected characteristics' under the Equality Act, it is unlawful to discriminate against a disabled person during the recruitment process including, except in certain circumstances, asking about a candidate’s health, or requesting they fill in a pre-employment health questionnaire, prior to making them a job offer. (For more information see our Recruitment and Selection Q&As.)

Disability is a protected characteristic under the Equality Act 2010, and is defined as a physical or mental impairment that has a substantial long-term, adverse effect on the ability to carry out normal day-to-day activities. 

‘Substantial’ here means more than minor or trivial (See also Q ‘What are 'normal day-to-day activities' for the purposes of disability discrimination?’).

Who’s covered?

The question of who is disabled encompasses a broad category of people. The Act protects anyone who has, or had, a disability. For example, an employee who has suffered from depression in the past and, because of this, is harassed at work, would meets the Act's definition of disability and would be unlawful.

The protection includes people who are discriminated against because of a disability they do not personally have. For example, an employee treated less favourably because his wife has motor neurone disease would be associative discrimination on the grounds of disability, and that would be unlawful as well.

Case law examples include Price v Action-Tec Services Ltd trading as Associated Telecom Solutions (2011). Here a non-disabled employee suffered associative disability discrimination when she required time off because her husband had leukaemia.

Guidance on definition of disability

The Equality and Human Rights Commission guidance explains what needs to be taken into account when deciding questions relating to the definition of disability. The guidance does not impose any legal obligations in itself, nor is it an authoritative statement of the law. However, a court or tribunal determining whether a person is a disabled person may take into account any aspect of the guidance it considers relevant.

Employers must remember that depression, extreme stress and other forms of mental illness form the basis of increasing numbers of disability discrimination claims (see Q ‘Which conditions are covered by the disability discrimination Equality Act provisions?’)

Obesity in the UK has significantly increased and workplace problems can arise. Although it does not qualify for protection against unlawful discrimination on its own, an overweight employee will be disabled if their mobility, physical co-ordination, or ability to lift, carry or otherwise move everyday objects, is affected. It is the effects of any impairment caused by the obesity that need to be considered, rather than the underlying condition itself. 

The government guidance uses an example of a woman who has obesity giving rise to impairments such as mobility restrictions and breathing difficulties, and who is unable to walk more than 50 yards without a rest. Such an employee will definitely fall within the definition of disability.

Case law

How the law operates 

In the case Kaltoft v Billund Kommune (2014), a Danish childminder, weighing over 25 stone, claimed he was dismissed due to his obesity. The European Court of Justice said that obesity could fall within the concept of disability, especially when the obese person was hindered by their condition from fully and effectively participating in their professional life on an equal basis with others. 

Harassment

A Northern Ireland decision, Bickerstaff v Butcher (2015), also upheld a claim for harassment from an obese employee who had been harassed on an almost daily basis. He was disabled, suffering from knee, joint and back pain, sleep apnoea, frequent tiredness and loss of concentration, all of which were directly linked to his weight.

Multiple health issues

In Walker v SITA Information Networking Computing (2013), an employee weighing over 21 stone brought a discrimination claim on the grounds of disability. He had numerous health problems, including asthma, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach complaints, anxiety and depression. The Employment Appeal Tribunal held he was disabled, confirming that employees who suffer from physical or mental impairments (which have a substantial and long-term effect on the employee’s ability to carry out normal day-to-day activities) can be disabled.

These cases confirm obesity is a potential disability and such employees can definitely be classed as disabled and be entitled to protection from discrimination.

Obesity might be a disability if:

  • the consequences of the obesity (such as heart disease) make the employee’s job more difficult or demanding
  • the resulting conditions are severe, for example, problems with mobility, endurance and mood may produce an impact which amounts to a disability.

Mere obesity on its own with no consequences is insufficient. To be protected, the obesity of the worker must lead to a long-term limitation resulting from either physical, or mental/psychological impairments which hinder the full and effective participation in their professional life. It is irrelevant whether the obesity was due to a metabolic physical problem or a psychological problem. The causes of disability are irrelevant.

Employers must take reasonable steps to prevent discriminatory activity against obese employees in the workplace. This includes situations where employers allow banter to continue. Inappropriate comments about an individual’s obesity, whether verbal or through social media, is disability harassment which may lead to tribunal claims for compensation, including damages for injury to feelings.

Employers should be alert to the issues of obesity in the workplace. Obviously, assuming that all obese employees are disabled could lead to a claim of discrimination by perception.

Reasonable adjustments 

The need to make reasonable adjustments applies even in cases where an employee’s medical condition stems from obesity. Employers should be tactful and not make assumptions about the needs of an obese worker, as not all obese employees have health problems.

An obese worker should have adjustments to enable them to do their job in the same way as a non-disabled person. This may include a request for flexible working or working from home or specialist equipment.

Employers who currently carry out risk assessments should make reasonable adjustments for obese employees if they have impairments affecting their abilities.

A wide variety of recurring, varying or managed conditions can be classed as a disability under the Equality Act 2010. Long-term and fluctuating or progressive conditions are covered, and the Act can apply to a past disability.

(For how to assess whether a person is disabled, see ‘Q How does the Equality Act define disability?’)

Long term and fluctuating

An employee has colitis, an inflammatory bowel disease. The condition is a chronic one, and she is prone to periods of remission and flare-ups. During a flare-up, she experiences severe abdominal pain and bouts of diarrhoea. This makes it very difficult for her to travel or go to work, which has a substantial adverse effect on her ability to carry out normal day-to-day activities. She is likely to be considered a disabled person for the purposes of the Act.

Case law

Medical conditions that vary over time

Is an employee disabled if their physical or mental health condition could become substantial again in the future? The House of Lords has held that they are disabled (see SCA Packaging v Boyle (Northern Ireland) [2009]).

Medical conditions managed by medication

Some employees receive medication that enables them to carry on normal day-to-day activities. Are they disabled? 

In Hiero v Changework Now (2009) the claimant had dysphoria, causing speech and concentration problems that he controlled with medication. When his job application was rejected he claimed disability discrimination. The employer argued the claimant was not protected as there were no substantial adverse effects caused by his condition and, therefore, it did not come within the definition of a disability. The Employment Appeal Tribunal rejected this defence, finding that the tribunal should have considered what the effects of the claimant's condition would be without medication.

In Sussex Partnership NHS Foundation Trust v Norris (2012) the Employment Appeal Tribunal found that increased susceptibility to infection was not a disability within the meaning of the Act because it would not have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities.

Recurring medical conditions

If a disability is likely to reoccur, the likelihood of this happening must be assessed at the date of the discriminatory act and subsequent events cannot be taken into account. 

In Richmond Adult Community College v McDougall (2008) a job offer was withdrawn after medical evidence revealed the applicant suffered from a mental illness. She had not suffered an episode of her illness for three years before her job application, but suffered a relapse and was committed to hospital under the Mental Health Act before the tribunal hearing.

To be a disability under the Equality Act 2010, an impairment must have a substantial and long-term adverse effect on a person's ability to perform normal day-to-day activities. The expression 'normal day-to-day activities' has a wide meaning and both work and non-work activities can be 'normal day to day activities'. 

Acas guidance makes clear that normal day-to-day activities would include things like using a telephone, reading a book or using public transport.

Some employers have tried to argue that an employee does not have a disability because a particular activity they cannot do is not a normal day-to-day activity. However, such arguments have not been very successful. A better strategy for employers would usually be to consider if any reasonable adjustments would be appropriate, rather than trying to deny that the definition of disability applies.

Case law

Each case involving disability should be looked at individually. 

Selection methods

A written exam required before promotion was held to be a normal day-to-day activity and the employee's dyslexia was held to be a disability, despite the high quality written work he had previously produced (see Paterson v Commissioner of Police of the Metropolis [2007]).

Night work 

Ordinary physical activities during a night shift were normal day-to-day activities which were difficult for the employee who had ME and had particular difficulties at night-time (see Chief Constable of Dumfries & Galloway v Adams [2009]).

Normal activity 

A train station employee had to stand for long periods, for example, at the ticket gates. This was held to be a normal day-to-day activity (see Aderemi v London and Southeastern Railway [2012]).

Lifting weights 

In one case, the EAT held that repeatedly moving and lifting weights of up to 25kg up in a warehouse was a normal day-to-day activity, even where the employer expected staff to do it at a particular target speed. An employee with a back injury that 'substantially and adversely' affected his ability to perform this task for his employer was disabled (see Banaszczyk v Booker [2016]).

The Equality Act 2010 covers:

  • direct discrimination
  • discrimination arising from a disability
  • indirect discrimination
  • harassment
  • victimisation
  • the duty to make reasonable adjustments.

The Act also makes it unlawful, except in certain circumstances, for employers to ask about a candidate’s health before offering them work.

Direct discrimination

Direct discrimination occurs where a disabled person receives less favourable treatment than someone who does not have a disability. The difference with direct discrimination and discrimination arising from disability is that with ‘direct’, there is less favourable treatment because of the disability itself; whereas with discrimination arising from disability the unfavourable treatment comes from something connected with the disability.

For example, a job applicant reveals that she has fibromyalgia and does not get the job even though she’s the best candidate. The employer assumes she will need too much time off.

(Direct discrimination also applies outside employment law in connection with provision of goods and services.)

Discrimination arising from a disability

The Act includes protection from discrimination arising from disability. This approach makes it disability discrimination to treat a disabled person unfavourably because of something connected with their disability (for example, a tendency to make spelling mistakes because of dyslexia); the employer has a defence if it can show that the unfavourable treatment is justified.

Discrimination arising from disability is only unlawful if the employer knew, or could reasonably be expected to know, that the person had a disability.

This type of discrimination can be justifiable if an employer can show that it is a proportionate means of achieving a legitimate aim.

Indirect discrimination

Indirect disability discrimination occurs where a provision, criterion or practice that applies to everyone particularly disadvantages disabled people. 

A job applicant or employee can claim that a particular rule or requirement an employer has in place disadvantages people with a disability.

For example, an employer has a rule that employees will be dismissed if they are late more than twice in any one month. An employee has multiple sclerosis and finds it difficult to get to work on time in the mornings because of problems with mobility. The employer’s rule is indirectly discriminatory on the grounds of disability.

Unless the employer could justify this requirement, it would be unlawful. In most indirect discrimination claims an employer may attempt to defend, or objectively justify its actions by showing that the provision was a proportionate means of achieving a legitimate business aim.

Harassment

Disability harassment occurs when, for a reason which relates to a person’s disability, another person engages in unwanted conduct which may violate the person’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for the disabled person. 

For example, a severely overweight employee with health difficulties is regularly taunted by colleagues at work because of her weight.

Victimisation

It is victimisation and unlawful for an employer to treat a worker less favourably than it would treat other people because that worker has made, or supported, a complaint under the Equality Act or because they are suspected of doing so.

For example, an employer threatens to take away a recent pay rise from a member of staff because she intends to support a colleague’s disability discrimination claim.

Duty to make reasonable adjustments

The duty to make reasonable adjustments applies where a disabled worker is placed at a substantial disadvantage in comparison to a non-disabled person. 

For example, an employee with the local authority is suffering from depression and cannot cope with constant direct dealings with the public. A reasonable adjustment may be a less public-facing role, if one is available.

Examples of reasonable adjustments include changes to working hours, flexible working, part-time or home working. Other adjustments may include a different role, reallocation of work duties or responsibilities, extra breaks, parking spaces, adjustments to office premises, auxiliary aids and services, extra training and, on some occasions, providing support workers.

Failure to make reasonable adjustments amounts to discrimination against the disabled person (see Q ‘What adjustments are employers expected to make for a disabled employee?’).

The duty to make reasonable adjustments comprises three requirements which apply where a disabled person is placed at a substantial disadvantage in comparison to non-disabled people. A substantial disadvantage is more than a minor or trivial disadvantage. The three requirements are as follows:

  • Changing the way things are done (for example, changing a practice such as adjusting working hours)
  • Making changes to the physical environment where it would be reasonable to do so (for example, providing access to a building)
  • Providing aids and services (for example, special computer software).

There is no statutory duty to consult with the employees about adjustments, but it is best practice to do so. The adjustments are usually designed to enable the employee to work and/or mitigate any disadvantages caused by the disability. (As long as the enquiries relate to the duty to make reasonable adjustments, employers can make enquiries about disability prior to making a job offer.)

It would never be reasonable for the employer (or other person bound by the duty) to pass on the costs of complying with it to an individual disabled person. Failure to comply with any one of the reasonable adjustment requirements amounts to discrimination against the disabled person.

There were of course similar provisions in pre-Act legislation. However, the Act aims to be more consistent and simpler. The provisions apply to employment, but also in the provisions of services to customers and so forth.

Examples

An employee develops carpal tunnel syndrome which makes it difficult for her to use a standard keyboard. The employer refuses to provide voice-activated software which would overcome the disadvantage. This could be an unlawful failure to make a reasonable adjustment which would constitute discrimination.

A financial adviser is a wheelchair user and  would have difficulty negotiating his way around the customer area in a bank. In consultation with him, the bank rearranges the furniture in the customer area and installs a new adapted desk thereby avoiding a claim.

A visually-impaired prospective tenant asks the landlord to provide a copy of a tenancy agreement in large print. If the landlord refuses it will be an unlawful failure to make a reasonable adjustment which would constitute discrimination.

For more information, see How can an employer decide whether an adjustment for a disabled employee is reasonable?

In determining whether a step which an employer may have to take is reasonable, the following may be helpful (this list is not exhaustive):

  • the extent to which taking the step would prevent the effect in question

  • the extent to which it is practicable for the employer to take the step

  • the financial and other costs which would be incurred by the employer in taking the step

  • the extent to which taking the step would disrupt any of the employer's activities

  • the extent of the employer's financial and other resources

  • the availability to the employer of financial or other assistance with respect to taking the step

  • the size and type of business.

Employers should also remember:

  • the employee does not have to suggest adjustments

  • the duty to make adjustments is on the employer

  • they may need to treat a disabled person more favourably than a non-disabled one

  • the duty to make adjustments can apply after employment has ended

  • there is no exemption for small employers

  • there is no duty to make adjustments if the employer does not know or could not reasonably have known that the employee is disabled.

If the employer did not know the employee was disabled or could not reasonably know the employee was disabled or the adjustment was ineffective, too costly, or not practicable then there may be a defence for the employer.

Case law examples

Would the adjustment alleviate the disadvantage?

It is important to consider if the adjustment would actually have helped in preventing the disadvantage faced by the employee. It is not enough to contend that a potential adjustment was suggested and not made, if that adjustment would not have helped anyway (Romec Ltd v Rudham (2007)).

When employers consider what is a reasonable adjustment they must first identify the disadvantage faced by the relevant employee and whether the proposed adjustments would alleviate it. The adjustments must prevent a disabled person from being placed at a substantial disadvantage, compared to those employees who are not disabled.

Other rulings provide some helpful guidance on this issue:

  • Adjustments including training and an unpaid career break would not have alleviated the employee’s disadvantage and were therefore not reasonable adjustments (Salford NHS Primary Care Trust v Smith (2011)).
  • As long as an adjustment has a real prospect of removing a disadvantage, that is sufficient to make an adjustment reasonable. An adjustment may be reasonable even if there is a lower chance of it succeeding (Leeds Teaching Hospital NHS Trust v Foster (2011)).
  • If an adjustment would never have succeeded there is no failure to make reasonable adjustments (North Lancashire Teaching Primary Care Trust v Howorth (2014)).
  • Employers will not fail in their duty to make reasonable adjustments if they refuse to help a disabled employee retire early on ill-health grounds. Reasonable adjustments are steps which make it possible for the employee to remain in employment, not steps enabling a transition into retirement (Tameside Hospital NHS Foundation Trust v Mylott (2011)). It should be noted that this disability-related discrimination claim was decided under the pre-Equality Act 2010 Malcolm test. An employer that dismisses an employee because of absence arising from a disability will now have to show that the dismissal was a proportionate means of achieving a legitimate aim).

These decisions all highlight that to be reasonable, adjustments must be effective at enabling the disabled employee to reduce the disadvantage they suffer at work. Adjustments are primarily concerned with enabling the disabled person to remain in, or return to work. Career breaks, trial periods, consultations and investigations do not constitute reasonable adjustments as they do not directly assist with the employee's returning to work.

An employer will only be able to avoid making a reduction in working hours for an employee who is suffering from depression with great difficulty under the Equality Act 2010. The better approach would be to approach the possibility of a reduction in hours more positively.

To qualify as a disability, depression does not have to be clinically well-recognised. Provided the depression does qualify as having a serious, long-term and adverse effect on the carrying out of normal day-to-day activities, then the employee could argue that adjusted hours were reasonable. The employer would then need to argue that adjusting the existing hours was unreasonable.

If the employee were dismissed the employer would be vulnerable to a disability discrimination claim. With respect to the duty to make reasonable adjustments for an employee, the defence of justification is not available. All an employer may be able to show is that a particular adjustment is unreasonable.

The duty to make reasonable adjustments is not the same for disabled employees and employees who are carers of disabled people.

If a disabled employee brings a claim then once an adjustment has been found to be reasonable, then a failure to carry it out cannot be justified by an employer at all.

However employers are not obliged to make reasonable adjustments under disability discrimination legislation for employees who bring associative claims as carers of disabled people. 

The Equality Act 2010 provides that:

  • Employers have a duty to make reasonable adjustments where a 'provision, practice or criterion' (PCP) of the employer puts a disabled employee or job applicant at a substantial disadvantage compared to others. The duty to make reasonable adjustments extends to job applicants as well as current staff. A failure to make reasonable adjustments will amount to disability discrimination. 
  • Employees are protected from associative discrimination where a non-disabled employee is subjected to direct discrimination or harassment on the grounds of their association with a disabled person. The Equality Act 2010 makes clear that the duty to make reasonable adjustments is owed to a 'disabled person'. There is nothing to suggest that the duty extends to making reasonable adjustments for an employee associated with a disabled person.

Several employees have brought claims against employers for failing to make reasonable adjustments based on associative discrimination, normally because the employee is caring for a disabled relative (Hainsworth v Ministry of Defence (2014)).

It now seems clear that associative discrimination does not extend to the duty to make reasonable adjustments (Cushnan v Norbrook Laboratories Ltd (2013)).

Although employers do not have to make such adjustments, some employers may choose to do so if the request is easy and cost effective to accommodate. However employees should now be deterred from suing employers for failure to make reasonable adjustments to meet their caring requirements. Employers should bear in mind that employees with similar caring responsibilities may make a request for flexible working and employers should ensure that such requests are considered reasonably. 

How employers should treat disabled employees' absence in an absence policy gives rise to some interesting legal points. An employer’s duty to make reasonable adjustments for a disabled person does not mean an employer has to completely disregard the normal absence triggers in its absence policy.

Absence management procedures should not discriminate against disabled employees. Applying a policy in a uniform way and ignoring sickness absence that arises from a disability can be a risky approach for employers to take. Many employers do allow disabled people a few extra days off sick before formal sickness absence procedures are triggered, which is probably a good practice approach. The stress of being subjected to formal proceedings for exceeding the sickness absence trigger point can exacerbate some existing conditions. So employers should treat disabled employees sensitively, but can also use the absence procedure when reasonable and necessary.

So if a disabled employee has some increased absences due to their disability, it is probably reasonable for the employer to adjust the rules of the absence policy. As is often the case the employer must behave reasonably depending on the level of absence, the prognosis and likely future absences.

However if an employee has more significant absences, the fact that these absences are disability-related does not automatically mean the disabled employee is immune from the absence policy or attendance management or even dismissal.

The leading case on disability and sickness absence policies is Griffiths v Secretary of State for Work and Pensions ([2015] EWCA (Civ) 1265 10 December 2015, CA). The claimant worked for the Department of Work and Pensions (DWP) for 35 years as an administrative officer. In early 2011 she was absent for 62 continuous days with post-viral fatigue syndrome and fibromyalgia and this counted as disabled for the purposes of the Equality Act 2010.

The DWP had an attendance policy which comes into effect when absence levels reach eight working days of sickness absence in any twelve month period. Under the policy, formal action begins when an employee’s level of absence reaches this consideration or trigger point. However the policy allowed managers the discretion to change the point at which formal sickness absence proceedings were triggered.

The claimant brought a grievance and then claim for disability discrimination for failure to make reasonable adjustments, namely disregarding her previous absences and increasing the trigger point for the absence proceedings.

The Court of Appeal (CA) agreed with the employment tribunal that the proposed adjustments, including delaying the trigger point for absence proceedings, were not adjustments which this employer was expected to take. In most cases the duty to make reasonable adjustments will apply when disability-related absences trigger use of an absence policy. However, on the facts of this specific case, the adjustments the employee suggested were not reasonable. The CA said that cases like this are quite difficult to analyse using the reasonable adjustments duty. Disabled employees who are subject to procedures and even dismissal for poor attendance may prefer to focus on claims for discrimination arising from disability under Section 15 of the Equality Act 2010.

A disabled employee may have a level of absence which a non–disabled employee is unlikely to have. This means an absence policy will often substantially disadvantage the disabled employee. So the key question is whether it is reasonable for the employer to adjust the normal rules of the policy in the particular circumstances of the case?

(The Court explained that it was not necessary to use the test adopted by the House of Lords in Lewisham London Borough Council v Malcolm [2008] 1 AC 1399 whereby the correct comparator for the claimant was a non-disabled employee with the same level of absence, to whom the same sanctions would have been applied.)

Key points for employers

  • It is commercially sensible for employers and line managers to exercise some flexibility, compassion and discretion with disabled employees who require time off for sickness.
  • If a disabled employee is has limited and occasional absences it may be appropriate to extend the trigger point in an absence policy and it may be unreasonable not to do so for some employees.
  • If disabled employees are absent for longer extended periods then it may not be necessary to delay the trigger point. Disabled employees with long absences will generally find it difficult to win a reasonable adjustments claim.
  • Employers do not always have to extend the time periods in absence policies before commencing formal action for all disabled persons with absence problems. Formal disciplinary or capability or attendance management procedures sometimes have to be used in cases of long term sickness absence, even for disabled employees.
  • Employers should use common sense and apply processes to disabled employees carefully and fairly. Sometimes disabled employees will request reasonable adjustments and sometimes they will not.
  • Employers will be able to use an objective justification defence to a claim of discrimination arising from a disability, depending on the extent of past absences and the medical evidence as to the prognosis and likely pattern of future absences.
  • Employers should also remember that absence management procedures that involve trigger points may not be a substantial disadvantage to disabled workers so as to invoke the duty to make reasonable adjustments at all. However direct or indirect disability discrimination claims may still arise if employers do not consider the reason for the absence and apply discretion about when to initiate formal action for disability-related absences.

Yes, it could be it disability discrimination for an employer to reduce pay in a situation related to ill health absence if the underlying reason for the absence is a disability.

Under the Equality Act 2010 (the Act) the pay reduction may be discrimination arising from a disability which the employer would have to show was justified.

An employee may still be entitled to be paid full pay for an entire period of sickness absence, but that is more likely where the absence is longer because of a failure by the employer to make other reasonable adjustments. 

Case law 

In O'Hanlon v Commissioners for HM Revenue and Customs [2007] IRLR 404, CA an employee who suffered from clinical depression claimed disability discrimination. Her condition did amount to a disability under the Disability Discrimination Act 1995. Over four years she had 365 days off sick, 320 of which related to her disability. The employer’s sick pay policy provided for full pay for up to six months absence in any 12 months, and half pay for up to a further six months, subject to an overriding maximum of 12 months paid leave in any four year period. The employee claimed that she should have been paid in full for all disability related sickness absences and that:

  • she was substantially disadvantaged by the policy compared to non-disabled employees
  • the HMRC had not made reasonable adjustments to its policy to allow her to receive full pay while off sick and
  • she had been subject to disability-related discrimination since her absence was related to her disability and the failure to continue paying her was unjustified.

The Court of Appeal held that whilst technically there may be discrimination on the grounds of disability as a result of the reduced sick pay the employer, by reducing the employee's working hours and transferring her to a more convenient location, had taken reasonable steps to prevent any disadvantage. In addition, there were powerful economic reasons to justify the sick pay policy adopted. The cost of changing the sick pay policy would be excessive for this employer (estimated to be in the region of £6 million per annum) if it were to pay full pay to all disabled employees for their entire period of absence.

It appears that an employer would only very rarely be expected, as a reasonable adjustment under the Act, to give a disabled employee more sick pay than a non-disabled employee. 

Even a threat to reduce pay which never actually happens may be unlawful discrimination, so employers should be able to fully justify any pay reduction before discussing it with the disabled employee. In limited circumstances it may be safer for employers to continue sick pay for disabled employees even after their contractual entitlement has finished - see Chief Constable of Avon and Somerset Constabulary v Dolan (unreported, EAT/0522/07/MAA 22 April 2008, EAT).

Yes, if an employee can no longer fulfill their duties because of their disability, an employer is entitled to dismiss that employee subject to proper procedures being followed. Great care should be taken in the procedures followed, to avoid a claim for both disability discrimination and unfair dismissal.

Some of the key steps that should be taken are:

  • The first step is for the employee to see a company doctor, or alternatively to obtain the employee's consent for the employer to obtain a medical report from the employee's own GP.
  • In requesting a medical report, the employer should also ask specific questions about the patient's capabilities and difficulties and explain about the tasks they are expected to perform for their job.
  • The possible reasonable adjustments which could be made to facilitate the employee's return to work must be considered, including reduction of working hours, reallocation of duties, more time off.
  • If the report indicates that the employee is not fit to do the job and reasonable adjustments would not improve their ability to perform their duties, the employer should discuss the implications of the report with the employee.
  • The employer should look for alternative work for the employee within the organisation.
  • The Acas code of practice on disciplinary and grievance procedures and the organisation's own disciplinary, dismissal and grievance procedures should be followed with due consultation at the appropriate stages.
  • Dismissal of the employee on notice will be appropriate only if there is no alternative available.
  • If work is available which the employee would be capable of doing, then this should be offered to them in priority to other job applicants from an 'internal application race'.

Case law

With long-term ill-health absence and disability discrimination a key issue is often whether the employer could have been expected to wait longer before dismissing the employee.

In Monmouthshire County Council v Harris (unreported, UKEAT/0010/15 9 September 2015, EAT) a Senior Education Welfare Officer was disabled as a result of four chronic conditions: depression, sinusitis, asthma and underactive thyroid. The Council was aware of her illnesses and an occupational health report had recommended that she worked partly at home, which she did. Her new manager decided that this would no longer be allowed and she was dismissed following a period of absence.

She brought claims for unfair dismissal, failure to make reasonable adjustments, and discrimination arising from disability. The employment tribunal (ET) found that her dismissal was unfair and that the Council had not given sufficient consideration to its failure to make reasonable adjustments before dismissing her. The ET awarded £238,216.37 in compensation and the Council then appealed.

The Employment Appeal Tribunal (EAT) identified that the crucial question was whether the employer could be expected to wait longer before dismissing the Officer and in considering this, the following points were relevant:

  • The employer should consider what the employee says about their absence and what the medical evidence says.
  • An employer who causes an employee to be absent can still fairly dismiss the employee.
  • Disability related absences can be taken into account when dismissing for incapacity, but must be justified as a proportionate means of achieving a legitimate aim.

The EAT found that the ET had erred because although it was entitled to consider the previous failure to make reasonable adjustments, it should also have considered proportionality and all the other circumstances of the decision to dismiss.

An older example of a case where the employer succeeded in defeating a disability discrimination claim after dismissing on the grounds of ill health is Collins v Home Office (unreported EWCA Civ 598, CA). An employee who was an insulin dependent diabetic started work with the Home Office in May 2000. The normal probationary period was 12 months. Concern arose about the extent of the employee’s absences and two extensions of her probationary period were granted. In August 2001 she was signed off work by her general practitioner with stress and depression. In the occupational health service report of January 2002 a phased return to work was recommended. In April the employee was sent a ‘minded to dismiss’ letter ‘on the grounds of failed probation due to unsatisfactory attendance’ and in May she was interviewed by the employer. In August the occupational health service made its second report, which indicated that she should be able to return in three to six months. In September the employer sent the report to the employee with a letter stating that her case would be reviewed and a decision made on her future employment with the employer. Her employment was subsequently terminated as from 25 October 2002 on the grounds that her attendance had been unsatisfactory. The employee presented complaints of disability discrimination and unfair dismissal to an employment tribunal.

The Court of Appeal agreed with the employment tribunal, dismissing complaints of disability discrimination and unfair dismissal. The employer had acted reasonably throughout the long absence, during which the position had been discussed with the employee and the medical position had become clear.

Key points for employers

Before deciding to dismiss employers should:

  • Make all possible reasonable adjustments to facilitate the employee’s return to work.
  • Provide sufficient warning to the employee about the risk of dismissal if the absence continues.
  • Consult with the employee about why they are off work and what might be done to encourage a return to work.
  • Wait long enough to find out whether or not the employee might return to work before dismissing.
  • Consider if the absence might have been caused by a failing on the employer’s part.

Employers should also be aware of the many issues surrounding long term sick leave and accrued holiday and recent cases such as Fraser v Southwest London St George's Mental Health Trust and KHS AG v Schulte.

If a disability discrimination complaint is upheld, the employment tribunal may take the following actions:

  • order the employer to pay compensation
  • award further compensation for injury to feelings
  • recommend that, within a specified time, the employer take reasonable action to prevent or reduce the adverse effect in question
  • make a declaration of the rights of the disabled person.

There is no upper limit on the compensation for disability discrimination. For general guidance on the approach to the calculation of compensation in a discrimination context, see our Tribunal claims, settlement and compromise Q&As which address the elements of financial loss, injury to feelings and aggravated damages.

The tribunals are not shy of making large disability discrimination awards; there have been several over the £100,000 mark. One of the items to take into account is the future loss element and that, for example, visually impaired people find it harder to obtain work and therefore the future loss element may be greater.

However, the average disability discrimination award has dropped significantly over the past three years and in 2014/2015 was £17,319 compared with £14,502 in the previous year. The highest disability discrimination award in 2014/2015 was £239,913 and the median award was £8,646.

Examples of recent awards include an award of £390,870.58 which was Wales' highest ever disability discrimination award. The claimant was a manager who was dismissed on the grounds of incapacity five months after he suffered a severe stroke. Before the stroke he worked 60 hour weeks and did not take full holiday entitlement. In order to return to his employment he was advised that he must avoid stress but his employer decided that no role was unstressful and dismissed him. This dismissal was disability discrimination and failure to make reasonable adjustments.

Regarding injury to feelings compensation, if different forms of discrimination arise out of different discriminatory acts the tribunal must assess the impact to injury to feelings separately. For example, in Jumard v Clwyd Leisure Ltd (2008) the claimant established race discrimination and disability discrimination. The Employment Appeal Tribunal held that the employment tribunal had adopted too broad brush an approach in fixing a single sum for injury to feelings and should have separately considered both forms of discrimination. If different forms of discrimination arise from the same discriminatory acts, the injury to feelings may be assessed together. However, if there were different discriminatory acts, injury to feelings must be assessed separately. The total figure must be proportionate overall and not involve double recovery.

In cases of direct or indirect discrimination the treatment of the employee must be compared with that of an actual or a hypothetical person known as a comparator who does not share the same disability as the claimant, but who is (or is assumed to be) in circumstances which are not materially different from the claimant.

Example

A blind person was not short listed for a job because the employer wrongly assumed that blind people cannot use computers at all. An appropriate comparator to use is any person who is not blind. The legislation then requires the court or tribunal to compare the way the blind person was treated with the way the sighted person would have been treated. The comparator could also be someone with a different disability. The comparator must have other abilities to do the job as the claimant.

The Act introduced the concept of 'discrimination arising from disability'. This attempts to stop employers from treating disabled employees detrimentally because of their disability and which cannot be objectively justified. The focus is on if the detrimental treatment is linked to the disability. This category of discrimination does not require reference to a comparator.

There is a lot of pre-Equality Act case law guidance available on the issue of comparators that was decided under the old Disability Discrimination Act (DDA).

The leading case under the DDA was London Borough of Lewisham v Malcolm (2008). The House of Lords held that a comparator in a disability-related claim is a non-disabled comparator with the same other abilities as a disabled person. For example, a disabled person who has been off sick for six months should be compared to a non-disabled person who has been off for six months.

Other cases then confirmed this was the correct test under the DDA, including Stockton-On-Tees Borough Council v Aylott (2010). The claimant had bipolar disorder and had problems at work, resulting in him making various complaints against colleagues for bullying and other matters. The employer investigated and rejected the complaints. After various further problems, an outburst and sickness-related absences, the employer suspended him and started a disciplinary investigation into his conduct. The investigation was stopped when the employee was hospitalised because of his mental illness. After a lengthy continued absence he was dismissed on the grounds of capability.

The Court of Appeal held that:

  • the correct hypothetical comparator was a person who was off work for a similar number of days but who did not have the disability
  • the characteristics of the employee’s disability should not be included in the hypothetical comparator for the purposes of determining a claim of direct disability discrimination
  • there was direct discrimination because the claimant received less favourable treatment than others on the grounds of his mental disability, as evidenced by the council's stereotypical view of, and reactions to, mental illness
  • the dismissal was not disability-related discrimination.

As a result of Malcolm and subsequent decisions which relied on it, the Equality Act has introduced the concept of discrimination arising from disability, described the concept of the appropriate comparator more clearly, and introduced a defence of justification. This should clear up points of confusion following the Malcolm decision.

This issue has been a complex one, however the Equality Act 2010 (the Act) introduced the concept of associative discrimination.

The Act now makes it clear that discrimination arises if an employer discriminates against an employee because of a protected characteristic, whether or not the employee themselves possess that protected characteristic.

Basically therefore, an employer who does not accommodate an able bodied employee’s need to care for a disabled family member will be liable to a disability discrimination claim. They may be vulnerable to a number of other claims as well. For example, if an employee has dependent disabled children or specified adults in need of care, then that employee will have a right to request flexible working or unpaid parental leave.

Under previous UK law carers of a disabled person who are treated less favourably were not addressed. However, in Coleman v Attridge Law (2008) the European Court of Justice (ECJ) ruled that the Equal Treatment Framework Directive 2000/78/EC does provide protection against what is known as associative discrimination (discrimination against those with disabled dependants on the grounds of their association with the disabled person). The case concerned a mother whose employer refused her request for flexible working to look after her disabled son.

To harmonise UK law with ECJ's ruling in Coleman v Attridge Law, the Act ensures that discrimination is prohibited where the treatment is linked to disability not just on grounds of the claimant having a disability themselves.

Yes, if a disabled employee genuinely commits sufficiently serious misconduct then an employer is entitled to dismiss that employee subject to proper procedures being followed. Great care should be taken in the procedures followed to avoid a claim for both disability discrimination and unfair dismissal.

Employers should take great care to follow the usual dismissal procedures and those recommended by Acas Code of practice on disciplinary and grievance procedures (the Acas code).

The employer will, as always, investigate thoroughly and listen to the employee’s explanation to make sure that the grounds for dismissal are entirely unrelated to the disability. For example, to dismiss a person for persistent lateness after all the appropriate procedures have been followed may be reasonable, but if the lateness was caused by their disability then this would not be appropriate.

Some of the key steps that should be taken are:

  • Attempt to deal with matters informally, if the misconduct is minor, to see if the problem can be resolved before it escalates.
  • In the course of the procedures the employer should also ask specific questions about the reasons for the misconduct and explain why that conduct is inappropriate.
  • The employee should be given the opportunity to improve in the usual way.
  • Dismissal of the employee on notice will be appropriate only if there is no alternative available.
  • The Acas code and the organisation's full disciplinary, dismissal and grievance procedures should be followed with due consultation at the appropriate stages - see our Discipline and grievance procedures Q&As.

It is possible for an employer can discriminate without knowing about an employee's disability? For some time, employment tribunals have shown an increasing willingness to attribute knowledge of an employee’s disability to an employer (see Department for Work and Pensions v Hall [2005]).

A tribunal can order details of an actual medical condition to be disclosed in order to properly and fairly assess whether a claimant has suffered a disability (see Leeks v St Georges Healthcare NHS Trust [2011].

If there is any doubt about whether an employee meets the legal definition of disability, organisations should check with a solicitor and, until then, assume that there could be a disability rather than trying to avoid knowledge of the issue.

Legal position

The precise legal position depends on the type of disability claim – direct discrimination, harassment, failure to make reasonable adjustments, and so on – which is eventually brought.

Direct discrimination 

An employer will be liable for an act of direct disability discrimination if it knew, or ought reasonably to have known, that the employee was disabled.  It does not matter if the employee has not formally confirmed that they are disabled. If an organisation fails to recognise the obvious, it may still be liable and should be aware of the potential discriminatory impact of its decisions. Employers should, therefore, be proactive. 

Assessing whether an employee is disabled is problematic, particularly in a case of mental illness. If employers suspect an employee may be suffering from a potential disability, they should investigate, rather than just ignore the problem and risk less-favourable treatment of that employee.

Indirect discrimination 

An employer can commit indirect discrimination without knowing about an employee's disability.

Reasonable adjustments  

An employer is under an obligation to make reasonable adjustments if it knew, or could reasonably be expected to know, that an employee has a disability and was likely to be put at a substantial disadvantage because of it.

Discrimination arising from a disability 

An employer will be liable where it could reasonably be expected to know that the person has a disability.

This represents a change to the previous definition of discrimination arising from a disability, which said an employer would only be liable if it had knowledge, or at least imputed knowledge, of a person’s disability. The leading case was Mayor and Burgesses of the London Borough of Lewisham v Malcom [2008] in which the House of Lords confirmed that knowledge of a person’s disability was required. 

Harassment 

Harassment can occur where an employer perceives an employee to have a certain condition when they do not, in fact, have the condition. In addition, an employee can consider themselves subject to harassment where they are offended by comments made about another person's disability.

Employers can face unfair dismissal claims and sex, age or disability discrimination claims under the Equality Act 2010 of they do not handle menopause related issues correctly.

Other legal obligations include Health and Safety at Work Act 1974 which requires employers to ensure the health safety and welfare of their employees. Other regulations require workplaces to be suitable for all who work in them (Workplace (Health, Safety and Welfare) Regulations 1992). 

Disability discrimination: Some claims involving menopausal symptoms have been classed as disability discrimination. The issue for employers should not be whether the menopause generally is a disability, but whether the employee they are seeking to manage has symptoms that meet the definitions under the Equality Act. The law requires that the condition must have a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out day to day activates. Whilst each case is different, menopausal symptoms can manifest themselves over several years and can, for example, affect ability to concentrate which will fall within the Equality Act. Whether menopausal symptoms may be considered a disability will depend on exactly how an individual woman is affected at the time.Any failure to make reasonable adjustments to accommodate the symptoms may also lead to a discrimination claim.

Sex discrimination: Any less favourable treatment, or for example an employer imposing a strict uniform policy or refusing any requests to wear cooler uniform during the menopause could amount to indirect sex discrimination.

Age discrimination: Given that the menopause usually affects women of a certain age working practices that adversely affect women of menopausal age may lead to age discrimination claims.

Case law examples

In the case of Merchant v BT plc (2012), a BT employee with menopausal symptoms was not treated in the same way as employees with other medical conditions would have been treated. The employee was dismissed, and subsequently won claims for unfair dismissal and direct sex discrimination under the Equality Act 2010. 

In the case of Davies v Scottish Courts and Tribunal Service (2018) the Employment Tribunal confirmed menopausal symptoms amounted to a disability. The employee won successful claims for unfair dismissal and discrimination arising from disability. Her symptoms were a physical and mental impairment which had a substantial and long-term adverse effect on her ability to carry out normal day to day activities. Her employment was reinstated, and she was paid her wages and compensation amounting to some £19,000.

In the past, the menopause has been something of a taboo subject for both employers and employees. However, with around 4.3 million women over the age of 50 in the workplace, increasing numbers of organisations rely upon staff of menopausal age and need to be more aware of issues resulting from women’s health. 

Many employees will be largely unaffected by menopausal symptoms, but employers should take care of the health, safety and welfare of all employees, including women who are affected. Employees may require additional support at work during this time; acknowledging this helps retain the loyalty of dedicated female staff.

Support 

The support needed will vary to accommodate the different ways in which the menopause affects different people in varying occupations and workplaces.

The actions that an organisation can take to improve their support of menopausal employees include:

Tailored policies: Issues affecting women’s health (including the menopause) can be added to an employer’s health and safety policy or accommodated in an absence or flexible working policy. 

Risk assessments: Assessments of any specific risks to menopausal women should be carried out to ensure that the working environment supports their needs. Risks include stress, which can accelerate menopausal symptoms. (For the duty to carry out risk assessments see the Management of Health and Safety at Work Regulations 1999).

Communication: Individual employees will have different symptoms and requirements. Some women will feel uncomfortable seeking help from a male line manager. HR can address this by providing alternative people to speak to. Feedback is always useful to create a set of working conditions which will help employees if required. Adaptability by the employer will help meet individual needs.

Training: Equality and diversity training for managers which includes menopausal information may help change an organisation’s culture of embarrassment or avoidance of the menopause. Managers should be trained to understand menopausal symptoms and the necessary adjustments to support employees affected. With training, managers may be more flexible and sympathetic to requests for different working hours, breaks, a rest, or home working.

Arrangements: Arrangements to support employees’ needs may involve:

  • Increased frequency of work breaks.
  • Flexible working arrangements surrounding working hours. Later starts, for example, can help women who suffer sleep loss. 
  • Reduced workload or rearranging formal meetings or presentations may help if requested.
  • Occasional or regular home working may be helpful for management of some symptoms.
  • Easily accessed toilet facilities, rest rooms and access to cold water
  • Temperature, humidity and ventilation changes to office environment. 

These may be relatively low cost but may make a difference. The employee could be given some control of the workplace temperature and ventilation including air conditioning and desk fans, provided this is welcomed by the employee.

Reconsideration of the suitability of uniform or corporate clothing provided to workers. Promoting awareness of occupational health services. These services, if needed, can offer guidance on how to deal with the menopause.

Drug and alcohol abuse are common problems in the workplace and organisations must train managers in the issues that can arise. 

Addiction caused by taking prescription drugs, or another medical treatment, can be a disability under the Equality Act 2010. Other addictions, including alcohol addiction, are not covered by the Act and an alcoholic may not qualify as a disabled person because of the addiction alone. 

However, an employee with alcohol addiction may also have a physical or mental impairment, for example, a liver condition or depression, as a result of the addiction. It is the effects of the impairment that need to be considered, rather than the underlying condition itself. If an employee’s drinking results in a long-term condition, then the symptoms may still amount to a disability that is protected under the Act. If an employee is found to have a disability, employers must consider reasonable adjustments.

Dealing with alcohol problems at work

Drugs and alcohol abuse can have a serious impact on the day-to-day performance of employees including punctuality, behavioural issues, lower productivity and increased sick leave, or even accidents at work.

Employers should:

  • keep accurate, confidential records of instances of poor performance or other problems
  • privately ask the employee’s reasons for poor performance and question whether it could be due to a health problem, without specifically mentioning alcohol
  • make medical enquiries in order to ascertain whether there is an underlying or resulting medical condition, which falls within the definition of a disability
  • if appropriate, discuss any alcohol policy and occupational health or outside help available
  • arrange regular meetings to monitor progress and discuss any further problems.

Initiating disciplinary procedures may not be the most suitable option. Especially if there is long-term dependency, the matter is better dealt with as a capability issue.

If an employee accepts that there is an alcohol problem, a referral to counselling services or support groups may be appropriate. A clear time scale should be set for improvements in performance or attendance. 

Organisations can monitor progress and make an informed decision about whether performance management is needed. Capability processes leading to dismissal can be an ultimate sanction depending on prognosis and treatment.

The Equality Act 2010 specifically excludes some conditions from being a disability. 

The following are excluded:

  • hay fever, except if it aggravates another condition
  • tattoos and body piercings (although severe disfigurements are covered)
  • some mental health conditions, such as a tendency to set fires, steal, or physically or sexually abuse others, or a compulsion toward exhibitionism or voyeurism.

Some addictions, including a dependency on alcohol, cigarettes and other drugs are also excluded. However, employers must be very careful. Whilst alcoholism is excluded from protection, related conditions such as depression or liver disease resulting from alcoholism could still be protected (see Q ‘Does an alcoholic employee fall within the category of a disabled person?’).

Addictions that result from medically prescribed drugs or other medical treatment are included within the Act.

In order to be protected, a condition must fall within the definition of disability in the Equality Act 2010 (see Q ‘How does the Equality Act define disability?’).

Impairments which have been covered include long-term medical conditions such as asthma and diabetes, and fluctuating or progressive conditions such as rheumatoid arthritis or motor neurone disease. 

Other conditions that have been held by the courts to constitute a disability include agoraphobia, allergies, chronic fatigue syndrome, schizophrenia, rheumatoid arthritis, diabetes, epilepsy, visual impairments, impaired hearing and dyslexia. People with severe disfigurement will also be protected. These are simply examples and many more categories may be included. 

Some conditions, including cancer, multiple sclerosis and HIV/AIDS, are expressly protected, and people that have these conditions are considered to be disabled from the point of diagnosis. This means that a person with the HIV virus is protected against discrimination as soon as they are diagnosed as HIV positive. Similarly, an employee with cancer is treated as having a disability from the point of diagnosis and possibly before the condition has an effect on their ability to carry out day-to-day activities.

Case law 

A number of conditions have been found by courts and tribunals to be disabilities.

Diabetes 

In Clark v Newsquest Media (Southern) (2011) a diabetic employee was told to inject her insulin in the toilet. This only took a few seconds and her colleagues were comfortable with injections taking place in their presence. Her diabetes was a disability and the employer was ordered to pay more than £25,000 for disability discrimination.

In Metroline Travel v Stoute (2015), the Employment Appeal Tribunal held that a bus driver with Type 2 diabetes, controlled by a diet designed to reduce blood sugar levels, was not a disabled person under the Act. Type 2 diabetes isn’t automatically a disability, although other diabetics have established a disability. (See also Q ‘Can a disabled employee be dismissed on the grounds of ill health?’)

Allergies

In Wheeldon v Marstons (2013), a chef was allowed to bring a disability discrimination claim based on a severe nut allergy under the Equality Act 2010.

Eczema 

In Glass v Promotion Line (2013) a disability discrimination case was allowed to proceed on the basis that severe eczema can be a disability.

Mental impairment

Mental impairments includes a wide range of mental health conditions, for example, anxiety, depression, and stress, and learning disabilities.

The effects of the impairment must fall within the definition of disability within the Act. The prognosis must also be long-term, and usually appropriate medical evidence is required.

Substantial and long-term

In deciding whether the adverse effect is substantial, rather than minor or trivial, the effect of any medical treatment the employee is receiving has to be disregarded (see Kapadia v London Borough of Lambeth [2000]).

An impairment will be long term if it has lasted, or is likely to last, for at least 12 months. It will also be long term if it is likely to last for the rest of the person’s life, even if their life expectancy is less than 12 months. The effect may be judged as long term even if the symptoms are not continuous, provided they are likely to recur (see also Q ‘Are recurring, varying or managed conditions ‘disabilities’?’).

The main piece of legislation governing disability discrimination in Great Britain is the Equality Act 2010.

Discrimination claims may be made in an employment tribunal within three months from the date of the last discriminatory act. The tribunal may consider a complaint outside that time limit if it considers it just and equitable to do so. Before making discrimination claims, Acas early conciliation must normally be attempted and this also extends the time limits for claims. 

The Act is supplemented by a statutory Code of practice on the employment aspects of the legislation, which employment tribunals take into account, and non-statutory guidance. 

The Equality and Human Rights Commission (EHRC) website also has a wide range of information on discrimination law, including disability discrimination.

Information on disability discrimination in Northern Ireland is available on the Equality Commission for Northern Ireland website.

These Q&As focus on the employment relationship and the duties owed by employers towards employees. However, disability discrimination protection extends far beyond the employment relationship and includes, for example, the provision of goods and services.

As with other 'protected characteristics' under the Equality Act, it is unlawful to discriminate against a disabled person during the recruitment process including asking about a candidate’s health (except in certain circumstances), or requesting they fill in a pre-employment health questionnaire, prior to making them a job offer. 

(For more information see our Recruitment and Selection Q&As.)

Brexit

In a referendum on 23 June 2016 the UK voted to leave the EU. For information on what Brexit will possibly mean for employment law, including discrimination, read the blog by our Public Policy Advisor (Employer Relations).

We have also set up a resource hub on our website where relevant resources and details of our ‘Brexit’ activities will be published.

Discrimination claims and fees

The introduction of employment tribunal fees to issue and hear claims and Acas early conciliation has affected the number of discrimination claims which have significantly decreased. The Scottish Government has pledged to scrap the fees under new powers conferred on it in the Scotland Bill. Whether the fee system in England and Wales could be reformed has been the subject of extensive litigation and consultation. For more information see the Q&A What are the fees and costs which can be payable in the employment tribunal? in our Tribunal claims, settlement and compromise Q&As.

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