Mon, 19 Jul 2010
At the beginning of July Theresa May confirmed that the Coalition intends to implement parts of the Equality Act in October as had been planned by the previous government. It may well be that there will be some amendment to the more controversial areas of the Act which the Conservatives opposed as it went through both Houses but it seems likely that the new provisions relating to disability discrimination will come into force as they stand. The Home Secretary has confirmed that this is an area where the government is committed to change.
So what will be different ?
The Definition of Disability
The intention is that the Act should make it easier for a person to show that he/she is disabled and comes within its protection. Although the Government stopped short of widening the definition of disability as recommended by the Disability Rights Commission, there is now no requirement to consider the list of eight capacities found in the 2006 Guidance when considering whether a person is disabled. The requirement that an impairment has to affect one of the following - a person’s mobility; manual dexterity; physical co-ordination; continence; ability to lift carry or otherwise move everyday objects; speech hearing or eyesight; memory; ability to concentrate learn or understand or the perception of the risk of physical danger, in order to be considered as affecting the ability of a person to carry out day to day activities, has gone. It was thought that this list served no purpose and was an unnecessary additional barrier to disabled persons bringing cases before the courts. A “disabled person” is still defined as a person who has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day to day activities. (s.6)
Schedule 1 provides supplementary provisions covering the determination of disability.
The new language of the Act refers to “disability” as “a protected characteristic” Other protected characteristics include age, gender reassignment marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Different types of discrimination are now referred to as “prohibited conduct”. Prohibited conduct which relates to the protected characteristic of disability includes direct discrimination [s.13]; harassment [s.28] and victimisation [s. 27] and for the first time combined indirect discrimination [s.14]; discrimination arising from disability [s.15] and indirect discrimination [s.19]. The duty to make reasonable adjustments remains. [s.20-22 and Schedule 8]
Direct Discrimination[s.13 ]
There is now a definition of direct discrimination which applies to all protected characteristics including disability. This reads that a person discriminates against someone if, because of a protected characteristic, in this case, disability, he treats that person less favourably than he would treat others. But it is not discrimination to treat a person who is disabled more favourably than a person who is not disabled [s.13(4)]. This latter situation will probably arise most frequently where reasonable adjustments are made for a disabled person e.g. part-time work or shorter hours and a non-disabled person claims that by comparison he has been less favourably treated. There is no intention that non-disabled persons should be able to claim in such circumstances
Combined Discrimination [s.14]
The Act introduces a new concept of dual characteristic combined discrimination. This is less favourable treatment because of a combination of two relevant protected characteristics. These include disability and also age; gender reassignment; race; religion or belief; sex and sexual orientation. The comparator for less favourable treatment is a person who does not share either of those protected characteristics. It is not necessary for the claimant to show that he has been discriminated against on the basis of each protected characteristic. [s.14]. So it will now be possible for a person to claim discrimination on the grounds of being a disabled woman or disabled and black. Only two combinations are permitted but a claimant may run three claims, the first on the ground of combined discrimination and then two separate claims for each different type of discrimination.
Associative and Perceptive Discrimination
The definition of direct discrimination does not limit discrimination to a person with a disability and a person can be treated less favourably because of another’s disability. This provision has been introduced following the ECJ’s decision in Coleman v Attridge Law and another [(2008) ICR 1128] that the EU Equal Treatment Framework Directive (No 2000/78) protects those who although not disabled suffer discrimination because of their association with a disabled person. This is known as associative discrimination. The Coleman case came before the EAT in October 2009 [EBR Attridge LLP (formerly Attridge Law) and another v Coleman (2010) ICR 242] where Mr. Justice Underhill in giving judgement confirmed that the DDA 1995 in its present form extends to carers and others who suffer discrimination through association. Words could be read into the DDA to give effect to community law. With the new Act additional words are no longer required.
Direct discrimination for the first time also covers “perceptive discrimination”. The perception that a person is disabled is a potential ground for unlawful discrimination. This is direct discrimination against an individual because others think that he is disabled. It applies even if that person is not disabled.
The Work Occupational Requirement Exception [Schedule 9 paragraph 1]
This is a new exception to what would otherwise be direct disability discrimination. Where being disabled is an occupational requirement for work and a person does not meet that requirement it will not be discriminatory to reject that person. The requirement must be a proportionate means of pursuing a legitimate aim and the burden of showing that rests on those seeking to rely on it. This provision might apply where an organisation for deaf persons might legitimately employ and advertise for a deaf person who uses British Sign Language to work as a counsellor to other deaf people whose first or preferred sign language is BSL. This exception applies inter alia in the case of employers; employment service providers and contract workers
Discrimination Arising from Disability [S.15]
This is a new type of discrimination which has been included in the Act for the first time. It is discriminatory to treat a disabled person unfavourably because of something arising in consequence of a person’s disability where it cannot be shown that the treatment is a proportionate means of achieving a legitimate aim. It is a defence for a person to show that he did not know and could not reasonably have expected to know that the person was disabled. This replaces the provisions relating to disability related discrimination under the DDA which was the basis for the decision in London Borough of Lewisham v Malcolm  IRLR 700. The Council discovered that Mr. Malcolm had unlawfully sublet his flat on an assured shorthold tenancy and wanted to repossess the flat. Mr. Malcolm was schizophrenic at the time of the service of the notice to quit but the Council did not know this. He claimed that he had sublet the flat because he was not taking his medication at the time which had led to irresponsible behaviour. He claimed that the Council for a reason which related to his disability were seeking to treat him less favourably that they treated or would treat others to whom the reason did not or would not apply. The House of Lords held that “others to whom the reason did not apply” referred to a secure tenant of the Council without a mental disability who had sublet his property and rejecting the reasoning in Clark v TDG Ltd t/a Novacold [(1999) ICR 951] that the true comparator would be a person without a disability who had not sublet his property. This made it much more difficult for a disabled person to bring a case under the provisions for disability-related discrimination under the Act. The new provision in section 15 is described in the explanatory notes which accompany the Act as aimed “at re-establishing an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his or her disability and providing an opportunity for an employer or other person to defend the treatment.”
The new section 15 eliminates the need for a comparator and therefore avoids the vexed issue of who is the appropriate comparator. If an employee with a visual impairment is dismissed because he cannot do as much work as a non-disabled colleague this would be unfavourable treatment because of something arising in consequence of the employee’s disability. To defend such a claim the employer would have to show that the dismissal was a proportionate means of achieving a legitimate aim. This might be a difficult test for the employer who may also be in breach of the obligation to carry out reasonable adjustments.
The government has extended indirect discrimination to apply to disability. The 2010 Act applies the EU definition of indirect discrimination across the board. (It applies to all protected characteristics except pregnancy and maternity.) It arises where a person applies a provision criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic. A PCP is discriminatory if it puts people with whom the employee shares the characteristic, in this case disability at a particular disadvantage when compared with persons with whom the employee does not share the disability and it puts or would put the employee at that disadvantage and the employee cannot show it to be a proportionate means of achieving a legitimate aim. The reference to persons who share a protected characteristic is defined as a reference to persons who have the same disability. This may well present difficulties for a disabled person who has to show a group disadvantage to get home under this provision. It may well be that this provision will rarely be used since in most cases a claimant will be able to rely on discrimination arising from disability and reasonable adjustments.
Reasonable Adjustments [s.20-22 Schedule 8]
There are new and detailed provisions relating to reasonable adjustments.
There are limitations on the duty. It will be a defence if a person does not know and could not reasonably be expected to know that the disabled person has a disability and is likely to be placed at a disadvantage or in the case of a disabled applicant that a disabled person is an applicant for the work in question.
The duty to make reasonable adjustments comprises the following three requirements. A failure to comply with any requirement is a failure to comply with the duty to make reasonable adjustments. It is discrimination against a disabled person if there is a failure to comply with that duty
The first requirement arises where there is a provision, criterion or practice which puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. In these circumstances the person who has the duty to make reasonable adjustments is required to take such steps as are reasonable to have to take to avoid the disadvantage.
The second requirement arises where a physical feature puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled. The person upon whom the duty lies is required to take such steps as are reasonable to avoid the disadvantage. This may include removing the feature, altering it or providing a reasonable means of avoiding it. “Physical feature“ includes a feature arising from the design or construction of the building, the approach to exit from or access to the building, a fixture or fitting or furniture furnishings material equipment or chattels in or on the premises or any other physical element or quality.
The third requirement is to provide an auxiliary aid (including an auxiliary service) where a disabled person would but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with persons who are not disabled. This is a new requirement under the Act.
Where the provision of information is a requirement under the first and third requirements it must be provided in an accessible format.
A person making reasonable adjustments is not entitled to require a disabled person to pay to any extent for those adjustments unless there is an express provision to the contrary.
Schedule 8 sets out further guidance in respect of reasonable adjustments. If two or more people have a duty to make reasonable adjustments for the same person each of them must comply with the duty in so far as it is reasonable for each of them to do so.
There are changes to the law relating to harassment and disability. Firstly the Act prohibits harassment based on association and perception. The definition of harassment under the Act is new. A person harasses another if he “engages in unwanted conduct related to a disability “ and that has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile degrading , humiliating or offensive environment . In deciding whether conduct has that effect, the perception of the Claimant, the other circumstances of the case and whether it is reasonable for the conduct to have that effect will be taken into account. It is thought that the new definition will make harassment easier to prove since under the present law harassment must be “on the grounds” of disability rather than “related to disability” which is the new wording
Harassment by an employer includes harassment by a third party, where the employer has failed to take such steps as would have been reasonably practicable to prevent the party from doing so. But this provision will not apply unless the employer knows that the employee has been harassed in his employment on at least two other occasions by a third party, although this may be a different party on each occasion.
There is a new definition of victimisation. There is now no requirement to compare treatment of an alleged victim with the treatment of a person who has not made or supported a complaint under the Act. Under the new definition a person victimises another, if he subjects him to a detriment because he believes that that person has either brought proceedings under the Act, given evidence or information in connection with such proceedings under this Act, done any other thing for the purposes of or in connection with this Act or made an allegation against him or anyone else. It is also victimisation if a person is subjected to a detriment because it is believed that he has done or may do any of these things. But a person is not protected where he maliciously makes or supports an untrue complaint. Only an individual can bring a complaint of victimisation.
Enquiries about disability and health [s 60]
This is a new provision. A person to whom an application for work is made must not ask about the health of the applicant before work is offered to him either on a conditional or unconditional basis or he has been included in a pool of successful candidates to be offered a job when a suitable position arises. The situations where health -related enquiries can be made are for the purposes of :-
finding out whether a job applicant would be able to participate in an assessment to test his suitability for the work;
making reasonable adjustments to enable the disabled person to participate in the recruitment process;
finding out whether a job applicant would be able to undertake a function that is intrinsic to the job, with reasonable adjustments for jobs;
monitoring diversity in application for jobs;
supporting positive action in employment for disabled people; and
enabling an employer to identify suitable candidates for a job where there is a genuine occupational requirement for the person to be disabled
The section also allows questions to be asked where they are needed in the context of national security vetting.
Only the Equality and Human rights Commission can enforce a breach of this provision. But where the employer asks questions which are not allowed by this section and rejects the applicant, if the applicant then makes a claim of direct discrimination it will be for the employer to show that he has not discriminated against the candidate. This section applies to contract workers, business partnerships, office holders, barristers and advocates.
PART 11 Advancement of Equality
Chapter 2 s.159 Positive Action; Recruitment and Promotion
This new section allows an employer to take disability into account when deciding who to recruit and promote, where disabled people are at a disadvantage or are under represented. This can be done only where the candidates are equally qualified but this is not only a matter of academic or other qualification, but rather a judgement taking into account all the criteria used for selection. This does not allow employers to have an automatic policy preferring disabled candidates. Each case must be considered on its merits and any action must be a proportionate means of addressing such disadvantage or under-representation. It remains to be seen whether this provision which was controversial on the passage of the Act will be implemented.
Contract Workers [s.41]
A person who makes work available to contract workers must not discriminate against, harass or victimise them on the grounds of disability in the manner set out in this provision. Contract workers will be protected from discrimination by their employers in any event. This section imposes a duty to make reasonable adjustments for disabled contract workers which will be in addition to the duty on the contract worker’s employer.
New types of disability discrimination include discrimination by association, discrimination by perception, indirect discrimination, discrimination arising from disability. There are changes to the definition of direct discrimination and the provisions relating to reasonable adjustments and positive action, harassment and victimisation. Happy reading !
By Adrienne Morgan