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Disability discrimination claim - Asperger's syndrome

View profile for Peter Brady
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Disability discrimination claims often attract news headlines, but sensationalist reporting does not reveal the real damage and stress caused to individuals and their loved ones in discrimination cases.
I recently acted for an apprentice pursuing a disability discrimination claim against his former employer. In this case my client suffered from Asperger’s syndrome, which is a disability that affected his ability to understand instructions and cope with change. At all material times, his employer was fully aware of his condition. Despite having full knowledge, his employer took no steps to determine the implications of his disability or whether he required any adjustments to be made. 
After a few weeks in his role, my client’s employer terminated his contract. The reason given for his dismissal was because he allegedly was, ‘not the right man for the job’, he did not follow instructions and he made too many mistakes. 
At the time of his dismissal, my client believed he was doing well in his role and only a few times had he had issue understanding the instructions he received from his boss.  My client did however find it difficult to cope when he had to work away from home, which was something he’d was unaware he’d have to do when he started his job. 
Following his dismissal, my client approached me for a free 30-minute appointment at which we discussed the circumstances that led up to his dismissal. On speaking with my client, it soon became apparent that his former employer had discriminated against him as a result of his disability. 
We therefore issued a claim against the Company for direct discrimination, indirect discrimination, discrimination arising from his disability, failure to make reasonable adjustments and harassment. 
At first my client’s former employer strongly defended the claim however, while engaged in a judicial mediation, we were able to achieve a favourable settlement of just less than one year’s salary for the mistreatment he had received. 
If you have been discriminated against at work, or if you need advice on what is required from your organisation when employing disabled employees, feel free to give me a call on 01827-317075 or email pbrady@pickerings-solicitors.com. 
What is disability discrimination?
If an employer discriminates against an employee for a reason which is linked to a protected characteristic, the individual can bring a discrimination claim against their employer and/or the perpetrator of the discrimination. Under the Equality Act 2010, there are currently 9 protected characteristics, one of which is disability. 
What are the different types of disability discrimination?
To be classed as a disabled person under the Equality Act 2010 an individual must be able to show that they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on the ability to carry out normal day to day activities. This test can be far reaching and in recent times has allowed protection for ailments which historically may not have been considered as a disability. 
If an employee can satisfy the above test, there are six main types of disability discrimination: 
Direct discrimination – When an individual is treated worse than another person in a similar situation because of their disability.
Indirect discrimination – When an organisation enforces a policy or practice that has a worse impact on a disabled person compared to a person who is not disabled.
Failure to make reasonable adjustments – When an organisation fails to put in place measures to assist a disabled person e.g. disabled access.
Discrimination from a disability – When a disabled person is treated badly because of something connected to their disability e.g. not allowing time off for medical appointments. 
Harassment – When a disabled person is treated in such a way which leaves them feeling humiliated, offended or degraded. 
Victimisation – When a disabled person is treated badly because they have complained of discrimination. 
If a disabled person has been discriminated against, they can pursue one or all of the above claims if they apply to the circumstances. Unlike unfair dismissal, the right not to be discriminated against is a day one right as there is no requirement for the individual to have worked for the discriminating organisation for a period of two years. There is also no requirement for the individual to be employed by the organisation, as an individual is protected against unlawful harassment during the recruitment process too. This protection also extends to workers, agency staff, locums and self-employed contractors. 
A disability discrimination claim can be issued against an organisation but also an individual. If therefore an individual is discriminated against by a manager at work, they could pursue claims against both the Company and the manager personally. 
To pursue a disability discrimination claim in the Employment Tribunal, the individual must issue their claim within three months of the mistreatment. During this period ACAS early conciliation must be carried out which will allow for an extension of time over the three-month period. If the discrimination has been going on for an extended period, an individual can argue that the mistreatment is a continuing act and therefore the three-month period will run from the most recent act of discrimination. 
If you have been discriminated against at work, or if you need advice on what is required from your organisation when employing disabled employees, feel free to give me a call on 01827-317075 or email pbrady@pickerings-solicitors.com.