Answer 2 - Recent Case Law Developments Disablity Discrimination Flashcards
Introduction
We will cover the two forms of disability discrimination and then the developments in then from recent case law of Baldeh v Churches Housing Association, A ltd v Z and Owen v Amec Foster Wheeler Energy
What is the first form of disablity discrimination and what is it defined as under the eqa 2010 s 15?
Discrimination arising from a disablity, s15 established that as unfavourable treatment “because if something arising in consequence” of the claimants disability, which cannot be justified as a proportionate means of achieving a legitimate aim
What did the owen case show in the case of the s15 definition?
The unfavourable treatment must be BECAUSE of the disability and that disability discrimination also applies to something which arises in consequence of the disability
What is the important qualification on the ground of unfavourable treatment under s15 (2)?
An employer cannot be held liable for disability discrimination if he can show that he did not know, and could not reasonable be expected to know of the claimants disability. Very complicated issue as shown in baldeh and a ltd v Z
What is the second ground for direct discrimination?
If the employer fails to make reasonable adjustments for people with disabilities which is necessary for making it possible for disabled people to compete on a more level playing field in the world of work
What is the first of the three requirements in the duty to make reasonable adjustments?
Where a provision, criterion or practice applied by the employer places a disadvantage in a disabled employee in comparison to a non disabled employee, then its up to the employer to take reasonable steps to prevent it from having that effect
What is the second requirement under the duty of the employer to make reasonable adjustments?
Where a physical feature of the premises puts disabled people at a disadvantage, the onus is on the employer to remove it or provide a way of removing it
What is the final requirement on the duty to make reasonable adjustments?
Where a disabled person would be put at a disadvantage without any source of auxiliary aid, the reasonable adjustment would be to provide it
What happened in the baldeh case?
It was deemed that the outcome of an appeal hearing needs to be considered as part of the dismissal process, in cases where a mental impairment is disclosed at the appeal hearing, this will create actual or constructive knowledge of the disability in advance of the dismissal decision
What impact does the baldeh case have on the qualification in s15(2)?
Employers should therefore be wary of new information that comes to light during appeal hearings, and ensure that this is properly considered when deciding whether to uphold a decision to dismiss, huge impact on chances of defence under s15(2) and emphasises the importance of the appeal process
What happened in A ltd v Z?
The claimant was deemed a disabled person under the act but had not disclosed this to the employer. The ET initially accepted that the tespondent had no actual knowledge but should have made more enquiries so had constructive knowledge. The EAT dismissed this as even if the respondent had made more enquiries she would have continued to hide her mental condition so the employer couldnt have known
What impact does the case of A ltd v Z have on the s 15(2) qualification?
Makes it easier for employers to use s15(2) in cases concerning mental health issues where they hide it due to it being highly unlikely for an employee with mental health issues to disclose that to the employer due to them hiding it originally
What are the facts of owen v amec foster wheeler energy?
A disabled chemical engineer was denied the opportunity to take up an assignment in dubai due to his disabilities being considered to give rise to a high risk of medical complications if he were to be deployed at a remote location
What did the claimant claim in the owen case?
The claimant claimed that there was direct discrimination, indirect discrimination and that the employer had breached his duty to make reasonable adjustments under s20
What was the judgement in the owen case?
The ET found that this did amount to a provision criterion or practice that put the claimant a substantial disadvantage but due to the nature of the disability and the employer acting in the basis of independent medical advice, it was deemed that there was no reasonable adjustment that could be made to avoid the disadvantage
