Disability Discrimination Law & Advice

This is a basic guide which provides an overview of disability discrimination law. Disability Discrimination is covered almost soley by one piece of legislation which is the Equality Act 2010. Prior to this it was the Disability Discrimination Act 1995.

The Equality Act 2010 (which incorporates the former Disability Discrimination Act (DDA)) came into force in October 2010. The new Act was introduced to amalgamate and harmonise all the other strands of anti-discrimination legislation under a single unified umbrella. The other protected characteristics are: age, sex, race, sexual orientation, gender reassignment, and religion or belief.

The legal definition of discrimination is when –

A person is treated less favourably than someone else and that the treatment is for a reason relating to the person’s protected characteristic (e.g. disability)

Definition of a Disabled Person – Section 6(1) of the Equality Act states:

“A person has a disability for the purposes of this Act if s/he has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”.

Types of Disability Discrimination:

  • Direct Disability Discrimination
  • Discrimination arising in consequence of a person’s disability
  • Indirect Disability Discrimination
  • Failure to make reasonable adjustments
  • Harassment
  • Victimisation

If you are disabled or have had a disability, the Equality Act makes it unlawful for you to be discriminated against in:

  • Employment
  • Access to goods, facilities and services
  • The Management, buying or renting of land or property
  • Education

There is additional legislation, apart from the Equality Act, that protects your rights to health and social care entitlements. Please click on the link for community care if you wish to know more.

The above links provide more detail on the specific times of claims relating to Higher Education, Goods and Services or Employment law.

Legal Aid for Discrimination

You can obtain Legal Aid/Legal Help for Discrimination Claims if you pass the merits and financial eligibility Criteria. Currently there are three firms which provide the advice and representation which are: Howells LLP, Merseyside Employment Law & Stephensons Solicitors LLP, you cover England and Wales.

Individuals wanting to access discrimination advice or representation must first call the telephone gateway which is Civil Legal Advice on 0845 3454 345.

If they think you are eligible for advice you can have immediate and direct access to a specialist discrimination lawyer. For further details go to Gov.uk webite https://www.gov.uk/civil-legal-advice

Other sources of information in disability discrimination:

Disability Discrimination in Goods and Services falls under: “Service Provision & Public Functions: Part 3 Equality Act 2010”. You can find a link to the statute on the government website here:http://www.legislation.gov.uk/ukpga/2010/15/contents.

 

What is a service provider for goods and services not allowed to do?

A) A service provider is prohibited from subjecting a disabled person to direct disability discrimination in the provision of its service to the public.

B) A service provider is prohibited from subjecting a disabled person to victimisation.

C) A service provider is prohibited from subjecting a disabled person to harassment.

D) A service provider has a duty to make reasonable adjustments to disabled people in the provision of its service where it applies the following requirements:

    1. Where a provision, criterion or practice of a service provider puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage;
    2. Where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage;
    3. Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

Service Provision Scenario:

Providers of ‘insurance business’ can only justify treating disabled people (including people with a past disability) differently when providing them with insurance if:

  • the different treatment is by reference to relevant information from a source on which it is reasonable for them to rely, and
  • it is reasonable for them to treat the person differently.

This means it is important for the insurance business provider to have relevant information from a reliable source when making decisions about offering insurance services to a disabled person. Using untested assumptions, stereotypes or generalisations can lead to unlawful discrimination.

For example:

Someone who was previously a disabled person because of a mental health condition is charged a higher premium for travel insurance because of a blanket exclusion policy, even though they have not had any recurrence of their condition for many years. The insurer does not have any information that the person’s past condition involves a particular risk now. It is unlikely the insurer will be able to show that the different treatment is based on relevant information from a source on which it is reasonable to rely, and that it is reasonable to treat the person differently because of their past disability. Unless it can demonstrate this, the insurer must not charge higher premiums or refuse them insurance altogether.

A disabled person being treated for cancer applies for a life insurance policy. The insurance provider refuses the application on the basis of a medical report from the person’s doctor, which makes it clear that the prognosis is as yet far from certain. This decision is based on relevant information from a source on which it is likely to be reasonable to rely and it is also likely to be reasonable to treat the disabled person differently because of it.

Reasonable adjustments are not just about changes to physical features or the addition of auxiliary aids such as a hearing loop, although these can be important to some disabled people. Entertainment businesses should consider providing information (such as programmes and publicity material) in alternative formats and offering an additional ticket for free to a disabled person who needs to bring an assistant.

If a venue is of a type that means that they need to restrict services based on health and safety considerations, they should make sure that any action taken in relation to health or safety is proportionate to the risk.

Disabled people are entitled to make the same choices and to take the same risks within the same limits as other people. Health and safety law does not require service providers to remove all conceivable risk, but to ensure that risk is properly appreciated, understood and managed. Businesses should not make assumptions; instead, they should assess the person’s situation, and consider reasonable adjustments to reduce any risks, their duty not to discriminate and, where appropriate, the disabled person’s own views. There must be a balance between protecting against the risk and restricting disabled people from access to services.

Another Example:

If visually impaired person informs his Bank that he would like to receive his or her bank statements in braille and they fail to do so, such a person may be able to pursue a claim for breach of the duty to make reasonable adjustment and discrimination arising from his disability.

Please contact Disability Law Service if any of the above applies to you.

Which providers does this cover:

  • Universities and higher education institutions.
  • Further education colleges, and institutions, including sixth form colleges.

What is unlawful Discrimination?

Further or Higher Education institutions must not do the following:

  • Treat you worse than someone else because of your disability (Direct Discrimination),
  • Fails to make reasonable adjustment for you if you are being put at a substantial disadvantage in comparison to others,
  • Subject you to Discrimination arising from disability,
  • Indirect Discrimination by applying a provision criterion or practice to you
  • Harass you because of your disability.
  • Victimize you by subjecting you to a detriment because you have done a protected act (i.e. brought proceedings, raised a complaint or supported someone under the Equality Act 2010)

Direct discrimination

Direct discrimination occurs when you are treated less favourably than your institution treats (or would treat) another student because of a protected characteristic.

For example: A university refuses to admit a student because of their disability.

This would be unlawful direct race discrimination.

Direct discrimination generally cannot be justified.  There are some exceptions to this:

  •  Where the Equality Act makes a specific exception, such as in relation to allowing single-sex institutions to only admit students of one gender.
  • It is not unlawful direct discrimination to treat a disabled student more favourably than a non-disabled student because of their disability.

For example: A university decides that in order to encourage more disabled people to become artists it will reserve a certain percentage of places on its Art degree course for disabled applicants.  This would not be unlawful direct discrimination.

For example: A college offers a bursary for disabled students only.  This would not be unlawful direct discrimination.

The duty to make reasonable adjustments

If you are a disabled student, the duty requires further and higher education institutions to take positive steps to ensure that you and disabled students generally can fully participate in the education and other benefits, facilities and services provided for students. This includes taking advance action where it is reasonable to anticipate disabled students’ requirements so that it is then not difficult or too late to make adjustments when disabled students ask for them.  This duty is owed to you, whether you are an existing student, an applicant or, in limited circumstances, if you are a former student. As explained below, this duty may require institutions to change the way they normally work, alter physical features of their buildings such as the siting of lecture rooms or access to them, and provide equipment such as assistive software or human assistance such as a scribe or British Sign Language (BSL) interpreter.

What is the reasonable adjustments duty?

Further and higher education institutions are required to take reasonable steps to:

  • avoid substantial disadvantage where a provision, criterion or practice puts you at a substantial disadvantage in comparison with non-disabled students
  • avoid substantial disadvantage where a physical feature of the building or premises puts you at a substantial disadvantage in comparison with non-disabled students; this includes removing the physical feature in question, altering it or providing a reasonable means of avoiding it
  • provide an auxiliary aid where, without one, you would be put at a substantial disadvantage in comparison with non-disabled students.

Where the reasonable adjustment you need concerns the provision of information, the steps it is reasonable to take include ensuring the information is provided in an accessible format.

An institution cannot justify a failure to make a reasonable adjustment; where the duty arises, the issue is whether or not the adjustment is ‘reasonable’.

What is meant by ‘reasonable’ steps?

What is reasonable for an institution to do will vary according to a number of factors including the effectiveness of the adjustment, the cost and practicability of the adjustment, the type of education, benefit, facility or service being provided and the relationship between the student and the institution. There is often more than one reasonable adjustment that could be made and the institution does not have to make the one requested by you if another one could also overcome the substantial disadvantage.

You do not have to suggest adjustments but if you do, your institution should consider whether these suggestions would help to overcome the disadvantage and whether they are reasonable. It is good practice for your institution to work with you in determining what reasonable adjustments can be made.

What is a substantial disadvantage?

The Act defines a ‘substantial disadvantage’ as one that is more than minor or trivial. The level of disadvantage created by a lack of reasonable adjustments is measured in comparison with what the position would be if you did not have a disability.

A further or higher education institution will need to take into account a number of factors when considering what a substantial disadvantage might be, such as:

  • the time and effort that you might need to expend
  • the inconvenience, indignity or discomfort you might suffer
  • the loss of opportunity or the diminished progress you might make in comparison with your peers who are not disabled.

For example: A college has several sites and students are required to move between sites to attend consecutive classes. This is likely to place a student with mobility difficulties at a significant disadvantage compared to their peers who have no mobility difficulties as the student will find it hard to move between sites and will arrive late for classes as a result. Such a disadvantage is more than minor or trivial and is likely to satisfy the definition of a substantial disadvantage.

The duty to change a provision, criterion or practice

These terms are not defined but in general they relate to how the education and other benefits, facilities and services are provided and cover all of a further or higher education institution’s arrangements, policies, procedures and activities.

Where a provision, criterion or practice places you at a substantial disadvantage in accessing education and any benefit, facility or service, the institution must take such steps as it is reasonable to take in all the circumstances to ensure the provision, criterion or practice no longer has such an effect.

For example: A college has a strict policy that states no drugs are allowed on the premises. A student with a heart condition carries medication related to her condition. The college allows her to bring her medication with her to college. This is likely to be a reasonable adjustment to the college drug policy.

A provision, criterion or practice does not include what is known as a ‘competence standard’ that is defined as an academic, medical or other standard for the purpose of determining whether or not a person has a particular level of competence or ability. There is no duty to make reasonable adjustments in relation to the application of a competence standard. However, the duty does apply to the process of demonstrating that a person meets the competence standard.

For example: The mark required to pass an exam would be a competence standard, so would not be subject to the duty to make reasonable adjustments. However, it might be a reasonable adjustment to give a disabled person a longer time in which to complete an exam if their disability causes them to write more slowly, or to provide a student with a visual impairment with his written exam in enlarged text. These would be examples of reasonable adjustments to help them demonstrate that they can meet the competence standard.

The duty related to physical features

Physical features of a building or premises include:

  • any feature arising from the design or construction of a building
  • any feature on the premises, including any approach to, exit from, or access to a building
  • any fixtures, fittings, furnishings, furniture, equipment or other moveable property in or on the premises, and
  • any other physical element or quality.

 

All these features are covered by the duty, whether the feature in question is temporary or permanent.

The duty to provide auxiliary aids

A further or higher education institution must take such steps as it is reasonable for it to take to provide auxiliary aids to avoid the substantial disadvantage you may experience because of a disability. An auxiliary aid includes an auxiliary service and covers anything which provides additional support or assistance to you. This could range from the provision of a particular piece of equipment (which would not become your property) to extra staff assistance. It includes making information available in an accessible format.

For example: A university ensures Deaf students have access to BSL interpreters and palantypists. This is an example of an auxiliary service which addresses the substantial disadvantage faced by Deaf students.

If you are on a higher education course you may be able to obtain the Disabled Students’ Allowance, which helps provide for the cost of additional study support or equipment you require as a result of the effect of your disability.  If a piece of equipment is purchased using this allowance, it will remain your property after you have finished your course. If you are on a further education course your institution may be able to provide you with study support and equipment through Additional Learning Support funding.

Cost of providing reasonable adjustments

A further or higher education institution is not allowed to charge you for the cost of making any reasonable adjustments for you.

Harassment related to a protected characteristic

Harassment occurs when a further or higher education institution engages in unwanted behaviour which is related to a relevant protected characteristic and which has the purpose or effect of:

  • violating your dignity, or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment for you.

The word ‘unwanted’ means ‘unwelcome’ or ‘uninvited’. It is not necessary for you to say that you object to the behaviour for it to be unwanted.

For example: A college tutor repeatedly makes racist remarks about Gypsies and Travellers stating that they are unhygienic and dishonest and shouldn’t be allowed to be students at the college.  A student from a Traveller background is in the class and finds the tutor’s behaviour degrading and offensive. This could be harassment related to the protected characteristic of race.

Whether or not the unwanted behaviour constitutes unlawful harassment depends on the purpose or effect of the behaviour.  It does not matter what the intention behind the behaviour is if it creates the circumstances described above.  In determining if the behaviour has had such an effect it is necessary to take into account not only the perception of the student but also the other circumstances of the case including the relationship between the alleged harasser and the student and whether it is reasonable (judged objectively) for the behaviour to have that effect.  This means that it is unlikely to be unlawful harassment if another reasonable person would not feel that their dignity had been violated or that the behaviour had created an intimidating, hostile, degrading, humiliating or offensive environment for the student.

In this context ‘related to’ has a broad meaning and includes situations where you do not have the protected characteristic yourself, provided there is a connection between the behaviour and a protected characteristic.

This would also include situations where you are associated with someone who has a protected characteristic or are wrongly perceived as having a particular protected characteristic.

2.3 Victimisation

Victimisation is defined in the Act as:

Treating someone unfavourably (to their disadvantage or detriment) because they have done a ‘protected act’ (or because you believe that a person has done or is going to do a protected act).

A ‘protected act’ is:

  • making a claim or complaint of discrimination (under the Equality Act)
  • helping someone else to make a claim by giving evidence or information
  • making an allegation that someone has breached the Act
  • doing anything else in connection with the Act.

If a further or higher education institution treats you less favourably because you have taken such action then this will be unlawful victimisation. There must be a link between what you did and how the institution treats you.

The less favourable treatment does not need to be linked to a protected characteristic.

For example: A finance officer refuses to process a student’s living cost grant application because she has supported another student’s race discrimination claim. This would amount to victimisation.

2.3.1 Who is not protected?

If you give false information or evidence in bad faith (that is, you know that it is false) or make an allegation that is false and given in bad faith you would not be protected against victimisation.

For example: A student with a grudge against his tutor knowingly gives false evidence in another student’s discrimination claim against the university. He is subsequently excluded from the course for supporting the claim. This treatment could not amount to victimisation because his evidence was untrue and given in bad faith.

It doesn’t matter whether the original complaint/claim is upheld as long as it was not made in bad faith.

Discrimination claims (non employment)

If you have been discriminated in matters, such as purchasing goods or receiving a service, this is dealt with by the County Court (in England and Wales) and the Sheriff Court in Scotland.

County and sheriff court deadlines for these claims are six months minus one day from the date of the incident you are complaining about.

We would advise that any claim is submitted as soon as possible in order that no mistake is made in relation to the timeframe of a claim.

Judicial Review

A limited number of claims may have to be made via the High Court using a method called judicial review. If this route is required then the time limit guidance states that for issuing a claim must be submitted promptly but in any event within 3 months. This route may be required in cases were the defendant is a public body.

Please note that Judicial review is an extremly specialist area (public law) and so we would advise that advice is taken for each individual case.

Non Employment Discrimination – Basic Practice & Procedure

The Equality Act 2010 also provides disabled people with protection in the field of Service Provision, Education and Premises.

Such cases are heard in a County Court.

You have longer to start your claim than in employment discrimination cases, you will have 6 months less 1 day from the act of discrimination you are complaining about. But remember the case must be lodged with the court within 6 months, so if the incident you’re complaining of happened on 1st May you would have to submit the claim on or before 31st October.

Starting the Process

The Civil Procedure rules encourage potential litigants to write letters of complaints and letter before claim in attempt to resolve disputes before issuing proceedings at the Courts.

It is always a good idea to send such letters by recorded delivery and to keep copies for future reference.

Making a claim through the county court system

The information on this page outlines the steps to take a claim forward through the county court, although we do advise against doing this alone as there is a higher risk of costs than in employment tribunal.

If you wish to bring a claim, you must send or take the following to the court:

  • one copy of a claim form (called form N1) for the court, for you and for each defendants, you can download a copy of the claim form at: www.justice.gov.uk/courts/procedure-rules/forms
  • one copy of the particulars of claim for the court, for you and for each defendant (unless you have included the details of your claim on the claim form);
  • the court fee; and
  • a stamped self-addressed envelope, if the proceedings are being issued through the post.

Paperwork

All county courts have form N1 and will give you copies for free. They also have leaflets about bringing a claim and on current fees. Theform N1 starts legal action so should be filled in very carefully, as it is the first thing the court will read.

Be very clear and give details of all the things which have happened which you think are as a result of the discrimination that you have experienced. You can get guidance from the court on how to fill the form in.  The claim form will also need a statement of what damages you expect. If a precise figure cannot be included (which is usually be the case where compensation for injury to feelings is claimed), the value should be estimated as up to £5,000; between £5,000 and £15,000; or more than £15,000. If you are not sure, you can put something like: ‘I cannot say how much I expect to receive’.

How much does it cost?

It does cost money to go to court. The fee you have to pay to the court depends on the amount you are claiming, including interest. There are exemptions for paying court fees if one or more of the following applies to you:

  • You or your partner receives income support.
  • You or your partner receives pension credit guarantee credit.
  • You receive income-based job seeker’s allowance.
  • Your gross annual income is below a set limit and you receive working tax credits with a ‘disability element’.
  • Your gross annual income is below a set limit and you, or your partner, receive working tax credit and child tax credit between you.
    If you show that a payment of a court fee would involve undue hardship to you, the court manager may rule that you do not have to pay the fee, or that you can pay a reduced fee. This is called fee remission. More details on this can be had from the court and their leaflets.

 

Settling your case You can agree to settle your case with the defendant at any time before the hearing. But if you reach an agreement with the defendant to settle your claim, you cannot then change your mind and ask the court to hear the complaint.

The ‘right track’

If the defendant decides to defend him or herself against your claim, the court will then allocate your claim to the appropriate ‘track’. To help decide this, the court will issue what is known as an ‘allocation questionnaire’.
You must complete and return the allocation questionnaire within the time specified on the form and with the fee required. A judge will then allocate your claim to ‘the small claims track’, ‘the fast track’ or ‘the multi-track’. You will be sent a notice telling you which track your claim has been allocated to and what you must do to prepare your case for trial or final hearing.
Which track your claim is allocated to depend on its value and other matters to do with the case.

  • The ‘small claims track’ is the normal track for claims worth no more than £10,000.
  • The ‘fast track’ is the normal track for claims between £10,000 and £25,000, where the trial is likely to last for no longer than one day.
  • The ‘multi-track’ deals with claims over £25,000 and up to £50,000.
  • Claims in excess of £50,000 fall into the jurisdiction of the High Court.
    The small claims track is intended to be a simple and informal way of resolving disputes, which can be used without the help of a solicitor. The procedures for the fast and multi-tracks are more complicated. If your claim is allocated to either of them, you will probably need advice from a solicitor or a legal advice service.

 

What you might get from your claim

  • If you are successful with your claim, a county court can give you:
  • a declaration that discrimination happened
  • compensation (known as ‘damages’) for any actual financial loss and for injury to feelings or personal injury. Compensation will not be awarded for unintentional indirect discrimination;
  • an injunction to stop the service provider discriminating against you

After the hearing

If you do not agree with the judge’s decision, you can appeal. You must be able to show that:

  • there was a serious irregularity affecting the proceedings; or
  • the judge did not use the law correctly.
  • The time limit for appealing is 14 days from the date of service of the order.
    If you are unsuccessful in your appeal, you may have to pay the defendant’s costs.

Enforcing compensation

If you have succeeded in your claim but the defendant has failed to pay you the compensation, you will need to ask the court to take more action. Court fees are payable for enforcement action but you will be reimbursed by the defendant if you are successful in getting the money you are owed. You can get leaflets on enforcing your judgment from the county court.