Proving disability in a discrimination claim

Direct 2 Lawyers
November 12, 2012

If you’ve submitted a disability discrimination claim to the Employment Tribunal then, in order to succeed, you will need to show that you’re disabled. This may seem like a trite statement but it is one of the most important ‘hurdles’ to clear in a discrimination claim. Sometimes the Respondent will accept that you have a disability – normally this is the case if your disability is something that is obvious, such as (for example) paralysis. However, the Respondent will often not accept the fact that you are disabled – apart from anything else it places obstacles in the way to your succeeding with your claim. This article is intended to provide brief (and not comprehensive) guidance to Claimants in disability discrimination claims. It will do so by looking at the following:

What is disability discrimination?
How do I show that I’m disabled?
How do I get the evidence?

What is disability discrimination?

Disability discrimination, by definition, occurs when people are discriminated against (during the course of their employment) because of, or for a reason related to, their disability. Legally, under the Equality Act 2010, there are a number of types of disability discrimination. These include, but are not limited to:

Direct disability discrimination
Indirect disability discrimination
Failure to make reasonable adjustments for a disability
Discrimination related to disability

The first three claims above are quite common. Direct disability discrimination occurs when a worker is treated less favourably than a (hypothetical or actual) comparable worker because of their disability. For example, if you were selected for redundancy because your employer didn’t like the medical equipment that you have to use during the day to alleviate your symptoms then this would be direct discrimination – you’re being selected for redundancy because of your disability when a non-disabled person would not.

How do I show that I’m disabled?

If you’ve submitted an Employment Tribunal claim for a disability discrimination claim then you’ll need to provide evidence that demonstrates you’re disabled. As above, sometimes your employer will simply accept the contention that you’re disabled. More often than not, though, they will aggressively fight you on this issue as it’s a crucial point of fact in the Tribunal. The most common thing to do is to ask your GP to provide you with a letter or a report on your disability. This is useful in case where you’re depressed or sick with anxiety-related stress. If your doctor is unable to provide you with a report or your issue is more specialist then you can ask a specialist to provide you with a report. Although this will be more authoritative it will almost surely cost a lot more, so be warned.