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IDISCFRIMIMMITIONI

11th May 2000, Page 31
11th May 2000
Page 31
Page 31, 11th May 2000 — IDISCFRIMIMMITIONI
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Which of the following most accurately describes the problem?

Make sure treatment is fair to all

Acandidate for a particular job, or any employee, can claim that a particular treatment at the hands of his employer involves unlawful discrimination. This can include:

• Deciding not to offer employment; • Offering it on different terms; • How an employer offers—or refuses to offer—access to opportunities, benefits, facilities or services; • Taking disciplinary proceedings or imposing disciplinary sanctions; • Dismissal from employment.

SEX, RACE & DISABILITY

Discrimination can be unlawful on the grounds of sex, race or disability. It will always involve a comparison between individuals of differing gender, race or abilities. Claims for disability discrimination differ from those based on race or gender in a number of ways.

Discrimination can be direct or indirect. Direct discrimination is more straightforward. The employee alleges that this happened to me because I am different to others". Indirect discrimination is more difficult to explain and understand. It involves arguing that the employer has placed an obstacle in the path of an employee at work, disadvantaging him or her and all others of the same sex or race. An example often used to explain indirect discrimination involves the following type of job advertisement: "Driver required, only candidates over six feet tall should apply".

The height requirement is unnecessary and will affect more women than men. Legislation requires employers to think carefully before imposing unnecessary requirements upon employees.

A disabled person cannot claim indirect discrimination, but there is often a legal duty to make reasonable adjustments to premises and working arrangements. In practice this has a similar effect.

THE DISABLED EMPLOYEE Claims for disability differ in two ways. Unlike claims based on sex and race, the employer may argue that even if an individual was treated less favourably. on the grounds of his disability, in the particular circumstances of the case the treatment complained of was justified.

Of equal importance, it is usually quite easy to identify whether an individual belongs to a particular race or gender. Whether someone is disabled may not always be obvious. In many cases there is room for more than one opinion. In disability cases there is much more scope to argue that—however he was treated— the individual does not have the right to bring a claim at all.

Unless someone was registered as disabled on 52 January 5995, he has the burden of proving that he falls under the protection of the legislation. "Disability" is defined as a physical or mental impairment which is long-term and has a substantial, adverse effect on the person's ability to carry out normal day-to-day activities. It is open to employers to argue that the condition is not clinically recognised, it cannot be regarded as longterm or that the adverse effect is not substantial. A person's abilities are judged with reference to normal day-today activities but by how the impairment may affect his work.

When in doubt, the following is a list of points to consider when deciding whether a person may be disabled: • What is the condition?

• How does it affect the employee?

• How long has the employee suffered from this condition?

• Has it recurred, and is it likely to last for more than 52 months?

• How does it affect the employee's ability to carry out day-to-day activities?

• How does the employee cope with the everyday activities?

• How is it treated?

• What would be the effect if the employee did not take or use measures to treat or correct the condition?

Specific guidance is published by the Department of Trade and Industry but no list can cover all situations. The Tribunal will decide each case on its merits.

In claims for indirect discrimination the employee must identify a particular obstacle. Claims for indirect discrimination involve a comparison between groups rather than individuals. Provided the employee can identify the obstacle and prove that it disadvantaged a particular group, the burden of proof will be met. Employees frequently rely on statistical evidence to show that a particular requirement or condition disproportionately affects one group more than another.

The employer must then satisfy the Tribunal that his requirements are justified. Even if the employer is unable to do so, he can avoid paying compensation if the Tribunal believes the discrimination was unintentional.

The following should be considered: • What considerations were used when making any decision?

• Could these considerations affect more women than men or vice-versa?

• Could these considerations affect a particular racial or ethnic group more than others?

• How will I show that these considerations are necessary for the running of my business?

• How will I show that these considerations have nothing to do with gender or race?

• What limitations, requirements or conditions might they impose?

Once again, claims for disability discrimination differ from those based on race or sex. There is nothing to prevent an employer from indirectly discriminating against disabled persons. Instead, whenever premises or other work arrangements place a disabled person at a substantial disadvantage to the ablebodied, the employer must make reasonable adjustments.

What is "reasonable" depends upon the facts of the case. It can include: • Making adjustments to premises; • Transferring a disabled person to fill an existing vacancy or allocating some of these duties to others;

• Altering working hours or assigning a disabled person to a different location;

• Allowing time off for treatment, or arranging for training to be given; • Modifying equipment, instructions or procedures for testing and assessment; • Providing supervision or arranging for a reader or interpreter.

Many claims for disability discrimination rely upon the fact that the employee was dismissed and argue that the employer failed to make alternative, reasonable adjustments. This type of case frequently arises from a capability dismissal and will often also include a claim for unfair dismissal.

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