What Is Disability Discrimination?

Disability Stories 

The Equality Act 2010 (or the Disability Discrimination Act in Northern Ireland) covers you for discrimination because of your disability.

It means you should get the same opportunities at work as your able-bodied colleagues, and you should not be disadvantaged or mistreated in any way. If you’re discriminated against, you can make a claim to the employment tribunal and might win significant compensation.

Here are a couple of recent disability discrimination cases you might be interested to read.

Met Police: Hearing loss

Karim joined the The Metropolitan Police Service in 2015.

Due to hearing loss, he struggled with hearing outside and had difficulties hearing what was being said on the radio.

In 2016, he was moved into a non-operational role, because of risks relating to his hearing aids that were raised during his training.

Later that year, Karim had an occupational health (OH) assessment which found he was medically fit to undertake a full operational role. He returned to patrolling duties alongside another officer, but needed to undergo a full hearing test in an operational setting in order to pass his probation – his probation was extended more than a dozen times. Meanwhile, he was posted to a role within a police station.

In January 2018, the OH doctor recommended he wear good-quality in-ear hearing aids and undergo an assessment to determine whether he could hear adequately in an operational role. Later, an independent audiologist also recommended the enhanced hearing aids as they would would suit the challenging environments he’d experience in his role as a police constable.

However, Karim was told he would need to pay 2/7 of the cost of these hearing aids, with his employer paying the rest.

Access to Work recommended a cheaper option which included a microphone called a Phonak Roger Pen, which would enhance the sound of Karim’s existing hearing aids. This was the option taken up by the Met.

Karim remained in office-based roles until a test was arranged to assess his hearing in operational scenarios. This included a:

• Confrontation exercise
• Chasing exercise
• High Street patrol in a busy shopping centre
• Blue-light run

Issues arose during all these scenarios, including:

• Having to hold his Phonak Roger Pen out in front of him during the confrontational exercise, which was deemed dangerous
• His hearing aid battery running out during the middle of a chase
• Having to ask the assessing officer to repeat messages relayed over the radio
• The sirens creating feedback in his hearing aids, which Karim described as “torture”

The officers who conducted the tests decided he wasn’t capable of becoming a fully operational police officer, for example, because the Phonak Roger Pen could get knocked out of his hand leaving him vulnerable to being unable to hear, which would be dangerous in a confrontational setting.

Karim was dismissed in 2021 and brought a claim against the Met.

He won his case, because he’d dismissed for something arising from his disability. The tribunal said:

• The Met failed to pay the full cost of the enhanced hearing aids as recommended by OH and the audiologist
• Karim’s hearing equipment had not been tested for compatibility with the police van’s equipment
• He was away from operational duties for at least four years, so he should have been provided with refresher training before the test
• He should have had another opportunity to undertake the test before he was dismissed
• The assessing officers had not undergone any disability awareness training as offered by Access to Work
• Rather than testing his general policing skills, the assessing officers were testing Karim’s ability to hear, communicate and use his equipment in confrontational settings

In summary: “His failure of the ‘at works test’ arose from the officers’ assessment that he could not carry out his role safely using the Access to Work equipment. That arose from his disability, and not from his skill as a police officer.”

There will be a hearing later to determine what compensation Karim should receive. A spokesperson for the Met said it was “considering the judgment”.

What this means to you

Under the Equality Act, an employer should make ‘reasonable adjustments’ for anyone with a disability. In this case, the Met didn’t provide full financial cover for the equipment Karim needed for an operational role to pass his probation and remain with the police service.

Because he had only been given office duties, Karim had been put at a disadvantage compared with non-disabled probationary officers.

We are expert employment lawyers covering Northern Ireland, England, Scotland and Wales. Among other things, we specialise in disability discrimination. We only ever act for employees, not employers. If you’d like to chat about your personal circumstances and find out if you have a case, give us a call. The initial conversation is free.

The Hospital of St John and St Elizabeth: Back pain

Ms E Kalhor was an outpatient administration clerk at a private hospital in north London, who suffered severe pain in her back and arm.

In 2018, she was referred for an occupational health (OH) assessment and several recommendations were made, including the need for her to change her posture regularly and to rotate her duties to avoid prolonged sitting and standing.

However, her supervisor failed to pass the report onto management.

Later that year, Ms Kalhor complained that the floor in her reception work area was damaged and uneven. When her chair rolled over the crack, it exacerbated her back pain. She raised this issue multiple times. Eventually, the crack was taped over but not fixed.

She went to a further OH appointment after some degenerative changes to her spine were diagnosed by a consultant spinal surgeon. The report noted that she had to look up to speak to patients, and that this repetitive lifting of her head could aggravate her symptoms. The report recommended she needed to reduce this repetitive movement, but Ms Kalhor said she didn’t see the report and that her employer didn’t discuss it with her.

Her relationship with her manager, identified as ‘JB’, was strained. At a separate disciplinary hearing, JB said Ms Kalhor would “wander off” without permission. Ms Kalhor said she normally told people when she took a break, but that breaks were “not liked”.

In 2019, she submitted a grievance about:

• The state of the equipment at her workstation
• The fact that high staff turnover and sickness was putting pressure on staff
• That her supervisor had raised her voice

This grievance was not investigated.

Also in 2019, a third OH report said Ms Kalhor had a chronic musculoskeletal condition and would need time off for treatment. It referenced the uneven floor which remained noted on the firm’s risk register – but there were still no plans to get the crack fixed.

Later that same year, a fourth OH report stated that Ms Kalhor was not fit for work and she was signed off on sick leave. The report recommended a phased return and adjustments including frequent rest breaks, modifying equipment and rotating tasks away from her desk.

In January 2020, Ms Kalhor returned to work, but none of the recommended adjustments were discussed. Instead, she found she’d been assigned a new role as concierge.

She felt this did not meet the requirement for ‘reasonable adjustments’ as she still had to lift her head up and down, but the hospital claimed it was more suitable as she could stand up and leave the desk.

She submitted another grievance that OH recommendations had continually been ignored and that she had been treated with hostility on her return to work.

The hospital failed to respond to this grievance.

Ms Kalhor resigned from her role in 2020. Her reasons for leaving included:

• A failure to make reasonable adjustments to alleviate her back pain
• Ignoring her OH reports
• A failure to investigate or respond to repeated grievances

She approached the employment tribunal with a combined claim:

• The company failed to make reasonable adjustments
• She had been discriminated against because of something that arose from her disability
• She suffered disability-related harassment
• Direct disability discrimination
• Unfair dismissal

Most of her claims succeeded, at least in part, and the hospital has been ordered to pay Ms Kalhor £74,683.42 in compensation.

What this means to you

The tribunal judge said that ignoring the OH reports and failing to fix the floor placed the claimant at a disadvantage. However, this was not directly related to her disability, it was because: “There was a grudging and negative attitude towards the claimant’s disability amongst her management team… There was no sense that there was an issue which required addressing”.

Requiring Ms Kalhor to work her contract exacerbated her medical condition, as the nature of her role was sedentary and involved repetitive neck movements. The floor also exacerbated her medical condition as it caused her back to jolt.

The move to the concierge desk was not considered to be a ‘reasonable adjustment’. As it was a client-facing role, she couldn’t move away from the desk without causing disruption. It did not significantly resolve her pain when undertaking duties. It was always meant to be a temporary solution. And one of the reason was for convenience, to separate Ms Kalhor from JB.

We are expert employment lawyers covering Northern Ireland, England, Scotland and Wales. Among other things, we specialise in disability discrimination. We only ever act for employees, not employers. If you’d like to chat about your personal circumstances and find out if you have a case, give us a call. The initial conversation is free.

Related reading

If you’re in this situation, you might find our related articles useful:

• How much compensation can I get for disability discrimination?
• All you need to know. Disability at your workplace
• An expert guide to your rights with a hidden disability
• Disability discrimination. What you need to know
• My employer will not help with my disability

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February 21, 2023 at 10:08 am
Category: Blog, Discrimination

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