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A claim for discrimination arising from a disability can be brought when an individual is treated less favourably because of something arising out of their disability. This could include, for example, instances where customers have been denied a service because they cannot access it in the standard way that a person without a disability would.
A business or organisation may have a defence to such a claim if it can objectively justify their actions by demonstrating that their actions were proportionate (i.e. there is no reasonable alternative),and were taken in order to achieve a legitimate aim, (e.g. genuine health and safety reasons).
In order to utilise this defence, an employer has to show clear evidence that it had conducted a balancing exercise between it’s business needs and the discriminatory effect upon the individual and had given consideration to alternatives that might achieve the same result without being disadvantageous to the user.
Where a complaint or claim of Discrimination arising from Disability is received from a client/service user, the best way to attempt to defend it, is to first investigate and gather as much evidence as possible to establish whether the business had knowledge of the individual’s disability and whether the alleged conduct has occurred. This could include the gathering and consideration of CCTV footage, audio recordings, witness statements of staff involved and all equality and diversity policies and training records available.
If you find that the conduct alleged has not occurred then all evidence in support of this can be referred to in any response to the complaint or claim.
If your investigation reveals that the acts complained of did take place, then you should undertake an immediate review of all preventative action which the business has taken to avoid service users being subjected to such treatment and whether a balancing exercise between the business’ needs and the detriment to the individual was undertaken in the particular circumstances. If it can be proven that adequate measures have been taken by the business to establish a defence on these bases, then there is potential for this to be accepted by a County Court.
It is extremely important to seek specialist legal advice and assistance in dealing with complaints or claims of this nature to minimise the potentially costly consequences of a claim and the likelihood of proceedings escalating. Contact our discrimination law team on 0161 696 6170.
We acted on behalf of a franchise owner of a well known retail and public service client.
Our client defended a claim brought by a service user who alleged that they had been discriminated against on the grounds of disability, during the Covid-19 pandemic. The service user alleged that they had been refused service due to their inability to wear a face mask.
The facts and basis of the service user’s allegations were largely disputed by our client.
We assisted our client in resolving the claim, out of court, bringing the case to a swift conclusion, keeping legal costs to a minimum and minimising the impact of the disputed claim, on our client and their business.
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