Discrimination (Equality Act 2010) Disability Flashcards
What legislation governs disability?
Section 6 of the Equality Act 2010 defines a person as disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
What does substantial mean?
Substantial means more than “more” or “trivial”.
The impairment is usually considered a disability under the Equality Act if it makes it harder for you to do everyday activities.
Everyday activities can be anything you generally need to do regularly to live well, for example washing, communicating or using transport. Examples include managing type 1 diabetes with insulin injections.
What is classed as a disability?
A physical or mental impairment is classed as a relevant impairment if the claimant’s illness is listed in the World Health Organisation International Classification of Diseases.
If not, it is necessary to obtain medical evidence about it.
EA10 includes certain illness such as HIV, Cancer, and multiple sclerosis.
Some conditions are specifically excluded from being covered by the definition of disability, such as addiction to alcohol, nicotine and any other substance.
What is the effect of long term?
The effect of impairment is long-term if, it has lasted or is likely to last for at least 12 months, or it is likely to last for the rest of that person’s life.
Reoccurring problems are treated long term if they start off having a substantial effect and are likely to recur. There is no limit on the time scale for recurrence.
What does is the adverse effect of day-to-day activities?
The disability must have a substantial adverse effect on their normal day-to-day activities.
The disability must relate to normal day to day activates and not the claimant’s work.
Many activities done at work will constitute day-to-day activities which are things people do on a regular basis at work.
PATERSON V METROPOLITAN POLICE
DYSLEXIA
PATERSON V METROPOLITAN POLICE
The EAT held that an employee’s dyslexia had an adverse effect on his normal day-to-day activities. The task for the tribunal was not to compare Mr Paterson’s performance with the population at large, but with how he would do it if he did not have the impairment.
Disability discrimination can occur in the following ways:
Direct Discrimination, Indirect Discrimination, Discrimination arising from a disability, Failure to make reasonable adjustments, Harassment and Victimisation.
DIRECT DISCRIMINATION - DISABILITY
Direct discrimination is defined in S13 EA 2010.
Direct Discrimination is where you have been treated less favourably because of your disability than someone without a disability would be treated in the same circumstances (this person is known as a “comparator”).
A comparator is a tool used by the tribunal to compare treatment. The comparator is someone who’s in the same or similar enough situation/role/job, but who doesn’t have the same protected characteristic.
The purpose of employing a comparator is to enable the claimant to show that the reason for their treatment was their protected characteristic and nothing else.
There must therefore be no material difference between the claimant’s and the comparators circumstances.
In almost all circumstances, discrimination cannot be justified, save for very limited situations which are known as “occupational requirements”.
DISCRIMINATION BY ASSOCIATION - DISABILITY
It is also possible to bring a direct discrimination claims based on “association or perception” An example of discrimination by association might be where an employee who is caring for a disabled child or parent is not given the same opportunities as colleagues as a result of this association.
Discrimination by perception means that where an employee does not have a disability under the Act, an employer’s belief that the employee has a qualifying disability.
INDIRECT DISCRIMINATION - DISABILITY
Indirect discrimination can also occur when a rule or policy that applies to everyone has a worse effect on someone with a protected characteristic.
Indirect discrimination can be objectively justified by an employer, but the onus is on the employer to prove that the discrimination is a “proportionate means of achieving a legitimate aim”, which is not always going to be easy to prove.
An example of where indirect discrimination can be justified in this way is where a prospective employer has a policy that workers need to be in good health for heavy manual work and rejects an applicant with a severe back problem.
DISCRIMINATION AIRSING FROM A DISABILITY (INDIRECT)
Discrimination can also arise if an employer treats a disabled person unfavourably because of something “connected” with their disability.
For example, where an employee tends to make spelling mistakes as a result of his or her dyslexia- this is something “arising from a disability”- and not the actual disability itself.
What is reasonable adjustments - disability discrimination.
If you have a disability, your employer has a duty to ‘make reasonable adjustments’ to help lessen any disadvantages that the disability causes you (compared with non-disabled employees). A failure to make appropriate reasonable adjustments is disability discrimination.
An employer may have a duty to make reasonable adjustments if:
- Physical features of your place of work mean that you are at a disadvantage because of your disability. (lack of wheelchair ramps for employees in wheelchairs or having clear glass doors if an employee is visually impaired).
- Not being provided with an ‘auxiliary aid’ (means a specialist or adapted piece of equipment, such as adapted keyboards, large print or Braille materials or assistive listening devices)
- A ‘provision, criterion or practice’ of your employer puts you at a substantial disadvantage because of your disability.
Reasonable adjustments & Provision, Criterion or Practice
A provision, criterion or practice has a broad definition. It refers to all rules and conditions that form part of your employment. These are not simply the formal policies contained within your contract or handbook, but all other arrangements and practices that exist within the workplace.
The employer must have a provision, criterion or practice that puts you at a substantial disadvantage for the duty to make reasonable adjustments to arise.
If a disabled employee is put at a substantial disadvantage in terms of physical features of the workplace, auxiliary aids or provision, criterion or practice, the employer must make reasonable adjustments to help remove the disadvantage. Any adjustment must be genuinely likely to improve the disadvantage.
Whether or not it is reasonable for your employer to make a particular adjustment will depend on your specific circumstances. Generally, the cost of the adjustment required will be weighed up against the employer’s resources.
DEFENCES AVAILABLE TO AN EMPLOYER
When it comes to an employer raising a defence against allegations of disability discrimination, it is noted an employer cannot usually be held to accountable for a failure to make reasonable adjustments if they have no way of knowing about the disability.
For an employer to be liable, they must have known or be in a position where they should have known, that the claimant is disabled.
There are also some exceptions to the general rule that an employer cannot discriminate against an employee on the basis of their disability.
These are:
An ‘occupational requirement’, which would allow employers to discriminate based on their belief that a disabled person may be unsuitable or more suitable for a particular role. While this exception exists, an employer would still need to demonstrate that the direct discrimination was a proportionate means of achieving a legitimate aim. The onus would be on an employer prove this, which is often difficult.
The defence of “objective justification” in relation to indirect disability discrimination and/or discrimination arising from a disability. Again, an employer would need to demonstrate that the less favourable treatment was a proportionate means of achieving a legitimate aim.
For the person making the claim to establish that discrimination has occurred. The employee has to prove discrimination by the employer ‘on the balance of probabilities.
