A new right allows a disabled person to complain that he has been treated unfavourably because of something arising as a consequence of his disability. For example, previously an employer could sack an employee whose disability had resulted in a long period of sickness absence, provided that he could show that he would have sacked a non-disabled employee for the same amount of time off sick. Under the new law, it is irrelevant to make a comparison with how a non-disabled employee would have been treated: if the dismissal was due to an absence caused by disability then the employer will have discriminated against the disabled employee. The employer could seek to defend the claim on the basis that the action was “objectively justified”, but this is a difficult test to satisfy.
Additionally, there are now restrictions placed on the types of health questionnaires that employers can use before offering a job. Questions designed to discover whether the applicant has any health problems that would affect the recruitment process, or whether he can carry out the specific job duties, are allowed. However, general questions about health and disability are prohibited. This means that an employer may not know that an individual has a disability that could lead to time off sick until the job offer has been made.
Other minor changes have been made which generally make it easier for disabled people to bring claims against employers. Unlimited compensation is available for disability discrimination claims, including up to £30,000 compensation for “injury to feelings”. For these reasons, employers should tread carefully before taking any action against disabled employees.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.