Disability

Question 1

Where can the definition of disability be found, and what does it say?

Answer 1

The Equality Act 2010, s.6

s. 6(1) A person has a a disability if
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long term adverse effect on P’s ability to carry out normal day-to-day activities

Question 2

When would a disability be deemed a long term impairment?

Answer 2

Equality Act 2010, Schedule 1, Para. 2

(1) the effect of an impairment is long term if -
(a) it has lasted for at least 12 months
(b) it is likely to last for at least 12 months, or
(c) it is likely to last for the rest of the life of the person affected

Question 3

How is substantial to be interpreted when referring to disability?

Answer 3

s. 212(1) of the Equality Act 2010

- Substantial means more than minor or trivial

Question 4

When would tprohibited conduct of direct discrimination take place against a person with a disability or another protected characteristic?

Answer 4

Per s.13(1) of the EqA 2010
- Direct discrimination occurs if a person (A), by reason of a protected characteristic, treats another person (B) less favourably than they would treat anyone else

Question 5

When would prohibited conduct of indirect discrimination take place?

Answer 5

Equality Act 2010, s.19(1)
- If A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

Question 6

When would harassment occur in relation to a protected characteristic?

Answer 6

EqA 2010, s.26

(1) (a) A engages in unwanted conduct related to a protected characteristic, and
(b) the conduct has the purpose of -
(i) violating B’s dignity
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

Question 7

Under s.26(2)(a) what else would be deemed as harassment towards a disabled person?

Answer 7

If A engages in conduct of a sexual nature towards B

b) the conduct has the purpose or effect mentioned in s.26(1)(b

Question 8

Under s.26(3)(a) what else would be deemed as harassment towards a disabled person?

Answer 8

A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,

Question 9

What is prohibited under s.27 of the Equality Act 2010

Answer 9

Victimisation

Question 10

How does the Equality Act determine if someone has been victimised?

Answer 10

s. 27(1) If A subjects B to detriment because
(a) B does a protected act, or
(b) A believes that B has done, or may do, a protected act

Question 11

Under the Equality Act 2010 what is recognised as a ‘protected act’?

Answer 11

s. 27(2)
(a) bringing proceedings under this Act;
(b) giving evidence or information in connection with proceedings under this Act;
(c) doing any other thing for the purposes of or in connection with this Act;
(d) making an allegation (whether or not express) that A or another person has contravened this Act.

Question 12

What two legal concepts are unique to disability under the 2010 Act?

Answer 12

s. 15 - Discrimination arising from disability

s. 20/s.21 the duty to make reasonable adjustments

Question 13

How would discrimination arise from disability?

Answer 13

s. 15(1)
(a) A treats B unfavourably because of something arising in consequence of B’s disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

Question 14

When will A not be held to have discriminated a disabled person when on the face of it they have?

Answer 14

s.15(2) If A can show that he did not know, or could not reasonably be expected to know that B had a disability

Question 15

What are the three requirements under s.20 of the Equality Act that impose a duty on relevant persons to make reasonable adjustments?

Answer 15

s. 20(3) Where a provision, criterion or practice puts a disabled person at a substantial disadvantage, in respect of a relevant matter, to that of a non-disabled person, then A should take steps as is reasonable to avoid disadvantage
s. 20(4) where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
s. 20(5) where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

Question 16

In respect of the second requirement by which reasonable adjustments must be made in respect of physical features. what does the legislation state may be done to the physical feature to avoid substantial disadvantage?

Answer 16

EqA 2010 s.27(9)

(a) Remove physical feature
(b) alter it
(c) provide reasonable means of avoiding it

Question 17

What may constitute a physical feature?

Answer 17

s.27(10) of the EqA 2010

(a) a feature arising from the design or construction of a building,
(b) a feature of an approach to, exit from or access to a building,
(c) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or
(d) any other physical element or quality.

Question 18

What does the Equality state one is doing who fails to comply with the three requirements in s.20?

Answer 18

s21(2)

A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

Question 19

EXAMPLE

An employee develops carpal tunnel syndrome which makes it difficult for him to use a standard keyboard. The employer refuses to provide a modified keyboard or voiceactivated software which would overcome the disadvantage.

Q. Is the employer required under any relevant legislation to make reasonable adjustments?

Answer 19

YES

• The employer under s.20(5) of the Equality Act 2010 should take reasonable steps to resolve the substantial disadvantage to the employee who will now find it more difficult to communicate
• Under s.21(2) of the Act it may constitute discrimination if the employer fails to make reasonable adjustments

Question 20

EXAMPLE

A private club has a policy of refusing entry to male members not wearing a collar and tie for evening events. A member with psoriasis (a severe skin condition which can make the wearing of a collar and tie extremely painful) is refused entry for not following dress code?

Q. What should the club have done to remedy this in line with legislation
Q. Would the customer likely be able to claim for being turned away?

Answer 20

• Under s.20(3) of the 2010 Act any provision, criterion or practice (in this case the requirement of a collar and tie) which puts a person at a substantial disadvantage to that of a non-disabled person (cannot uphold dress code to obtain entry) then A should take reasonable steps to avoid this
• Clearly in this case the employer has not taken any reasonable steps to avoid disadvantage to the customer, A could have waived policy
• Under s.21(2) of the 2010 Act it could be classed as discrimination for failing to make this reasonable adjustment