Much of the media attention on the Equality Act 2010 has focused on controversial areas relating to socio-economic inequality, positive action and gender pay reporting. However, the Act’s disability discrimination provisions are likely to have much more impact on day-to-day working life.
In this article, we take a detailed look at how the Equality Act 2010 deals with disability discrimination and how the current disability discrimination regime will change when the new provisions come into force.
On this page:
Direct disability discrimination
Discrimination by association
Positive disability discrimination
Discrimination “arising from” disability
Indirect disability discrimination
The duty to make reasonable adjustments
Questions about health
By and large, the Equality Act 2010 maintains the current definition of disability set out in the Disability Discrimination Act 1995. The only substantial change is that the current list of capacities found in sch.1(4) of the Disability Discrimination Act 1995 is removed.
This list has been much misunderstood – and this is one of the key reasons why it is being repealed. As the law stands, individuals claiming to be disabled must show that 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 (s.1(1) of the Disability Discrimination Act 1995). Schedule 1(4) of the Act then provides that an impairment is to be taken as having such an effect only if it affects one of eight capacities: mobility; manual dexterity; physical coordination; continence; ability to lift, carry or otherwise move everyday objects; speech, hearing or eyesight; memory or ability to concentrate, learn or understand; and perception of the risk of physical danger.
In practice, the view has been that this list of capacities has not been helpful and has meant that a certain amount of massaging the facts of particular cases has been required in order to fit with the list. The Equality Act 2010 therefore omits it, and it will be left to tribunals to make a common-sense decision as to whether or not a particular impairment has a substantial effect on day-to-day activities.
Although one of the main aims of the Equality Act 2010 is to consolidate the plethora of current statutes and regulations dealing with discrimination into a single statute, not all of the current law on disability makes it into the Act. The Disability Discrimination (Meaning of Disability) Regulations 1996 (SI 1996/1455) provide that alcoholism and drug addiction are not to be treated as disabilities, together with, among other things, hayfever, decorative piercings, pyromania and voyeurism. These exceptions are not found in the Equality Act 2010, although para.1 of sch.1(1) does allow for regulations providing for specific conditions to be deemed to be, or not to be, an impairment for the purposes of the Act. Since the Disability Discrimination (Meaning of Disability) Regulations 1996 deal with the Disability Discrimination Act 1995, rather than the Equality Act 2010, they will have to be redrafted and re-enacted to continue to have effect once the Equality Act comes into force. We can presumably expect such regulations to be brought in at the same time as the Equality Act as a whole.
Direct disability discrimination
Under the Equality Act 2010, direct discrimination occurs when one person is treated less favourably than another person is, or would be, treated “because of” a protected characteristic (s.13). In most respects, the Equality Act treats direct disability discrimination in the same way as direct discrimination because of any of the other protected characteristics. However, the Act also preserves the current position that, in a comparison done for the purposes of direct discrimination, a person’s abilities are relevant circumstances (s.23(2)). What this means is that, if an employer were to refuse to employ a profoundly deaf person as a receptionist because the person was unable to operate a standard telephone, the comparison to be done for the purposes of direct discrimination would be with the way in which somebody who was not deaf, but who was similarly unable to operate the telephone system, would have been treated. The reason for the treatment complained of must be the disability itself rather than the consequences of that disability in relation to what the individual can and cannot do.
Discrimination by association
One of the chief aims of the new definition of direct discrimination set out in s.13 is that it should be wide enough to encompass discrimination by association, as required by the European Court of Justice in Coleman v Attridge Law and another  IRLR 722 ECJ. The formulation “because of a protected characteristic” is intended to accomplish this by not requiring the claimant to be the individual who has the protected characteristic. Thus, if an employee were to be refused a job because he or she had a disabled child, this would be direct discrimination, as the employer’s treatment of the claimant would be “because of” the protected characteristic of disability, albeit the child’s rather than the claimant’s.
The wording of s.13 is also wide enough to encompass discrimination where the employer is mistaken in thinking that the claimant is disabled. Thus, if an employer received incorrect information and used it in making an adverse decision in relation to a claimant, the less favourable treatment would still be “because of” the protected characteristic of disability, even though the claimant was not in fact disabled.
What is less clear is whether the employer needs to believe that the claimant is disabled within the meaning of the Act, or whether a vaguer perception is sufficient. Suppose an employer forms the view that an individual has some sort of mental health problem, but has no firm opinion on whether or not that problem amounts to a disability. Would less favourable treatment based on such a perception be discrimination “because of” the protected characteristic of disability? This is an issue that is likely to be tested by the courts at an early stage.
Discrimination by association is of relevance only in cases of alleged direct discrimination (and harassment). In cases of indirect discrimination or discrimination arising from a disability the claimant must meet the definition of a disabled person.
Positive disability discrimination
Under the Disability Discrimination Act 1995, employers’ ability to discriminate positively in favour of disabled people has arisen indirectly through the fact that claims can be brought only by people who are themselves disabled. Accordingly, someone who is not disabled is not able to bring a claim for disability discrimination, and it follows that no claim can arise if, for example, an employer guarantees an interview to a disabled person but rejects the application of an identically qualified non-disabled person. Whether or not this position was in any way affected by Coleman, which undermined the requirement for the claimant to be disabled, has not been tested, but it is clear that the new formulation of direct discrimination in s.13 of the Equality Act 2010 – discrimination “because of a protected characteristic” – would allow such a claim to be brought. However, it has been considered important for employers to retain the ability to discriminate in favour of disabled people, so s.13(3) provides that a claim cannot be brought on the basis of a disabled person being treated more favourably than non-disabled persons.
It is interesting that, while the much more limited provisions relating to positive action regarding the other protected characteristics have proved controversial, very little comment has been directed at this much more stark measure allowing positive discrimination. Indeed, s.13(3) sits somewhat uncomfortably with the wording of the Equal Treatment Framework Directive (2000/78/EC). Article 7 of the Directive allows for positive action designed to compensate for “disadvantages linked to” any of the protected characteristics, and with regard to disabled persons it allows for measures protecting health and safety or provisions aimed at safeguarding or promoting their “integration into the working environment”. Whether or not this allows for the unlimited positive discrimination permitted by s.13(3) may be the subject of a future challenge.
Discrimination “arising from” disability
One of the key objectives for the Government in rewriting the disability discrimination provisions for the purposes of the Equality Act 2010 was to reverse the controversial House of Lords decision in London Borough of Lewisham v Malcolm  IRLR 700 HL. In Malcolm, the House of Lords held that the provisions of the Disability Discrimination Act 1995 dealing with discrimination for a reason related to disability require a comparison with a person who is not disabled, but who is otherwise in the same relevant circumstances. This overturned the long-standing rule set out by the Court of Appeal in Clark v TDG Ltd t/a Novacold  IRLR 318 CA that a comparison between different persons in the same, or not materially different, circumstances was not required. As a result, disability-related discrimination has essentially become a form of direct discrimination and is widely considered to be too restrictive.
Section 15 of the Equality Act 2010 therefore defines a new form of discrimination that dispenses with any need for a comparator. It simply requires that the claimant has been treated “unfavourably because of something arising in consequence” of the claimant’s disability. As with disability-related discrimination under the Disability Discrimination Act 1995, the employer can put forward a defence of justification. However, the threshold has been raised considerably. Under the Disability Discrimination Act 1995, the treatment complained of needs to be for a substantial reason and “relevant to the circumstances of the case”. That this is a low threshold was confirmed by the Court of Appeal in Jones v Post Office  IRLR 384 CA. In Jones, the Court took the view that the justification test for disability-related discrimination has much in common with the band of reasonable responses test in relation to unfair dismissal.
The new test of justification will be much harder for employers to meet. In a sex discrimination case, the Court of Appeal has confirmed that there is no band of reasonable responses test in indirect discrimination and the employment tribunal must come to its own view as to whether or not the action taken by the employer is justified (Hardys & Hansons plc v Lax  IRLR 726 CA). This inevitably means that there will be considerable uncertainty in relation to justification until the case law has had an opportunity to develop. Dismissal for long-term absence, for example, will almost certainly amount to unfavourable treatment arising from a disability and the test of justification will be different from the test of fairness in unfair dismissal cases. How much an employer will have to do to persuade a tribunal that a dismissal was a proportionate means of achieving a legitimate aim we will have to wait and see.
The new test of justification is the same as that for indirect discrimination in relation to all protected characteristics, but in many respects discrimination “arising from” disability will be much easier to establish than indirect discrimination. With indirect discrimination we are concerned with the impact of a provision, criterion or practice on people with a particular protected characteristic. It is the impact on a group that is key. With discrimination “arising from” disability, however, all that needs to be shown is that the issue leading to unfavourable treatment arose from the individual’s disability. There is no need for him or her to show that a similar issue would in general arise in relation to people with that disability. To take an example, suppose an employee with a mental health problem were to be accused of bullying a colleague. If the employee could show that the bullying was something that happened “in consequence of” his or her disability, any disciplinary action would have to be justified by the employer as a proportionate means of achieving a legitimate aim. There would be no need for the employee to show that the bullying was a foreseeable consequence of his or her disability, or that people with that disability would in general be likely to behave in that way. Thus a high test of justification will be applied wherever a disability has consequences resulting in unfavourable treatment, even if those consequences are unique to the individual and unforeseeable.
Section 15 does, however, preserve one aspect of the ruling in Malcolm: that there can be no discrimination under this head if the employer does not know, and could not reasonably be expected to know, that the employee has the disability in question. In our example above, if the employer had no reason to believe that the employee had mental health problems, no discrimination would arise from disciplining the employee for the bullying. However, if the disability was known about, liability would arise regardless of whether or not the employer could have been expected to be aware that one effect of the disability could be a tendency to bully colleagues.
One issue with which the tribunals will have to grapple is the extent to which the employer’s knowledge that the issue being dealt with arises in consequence of the disability affects the assessment of justification. In our bullying example above, the employer may know about the disability, but not know that the bullying arises from it. Will that affect the approach taken by the tribunal to the issue of justification? Will the disciplinary action be easier to justify than it would in a case where the employer fully appreciated the link between the employee’s disability and the issue that led to the unfavourable treatment?
Indirect disability discrimination
The new concept of discrimination arising from a disability will overlap with the extension of the concept of indirect discrimination to the protected characteristic of disability. One important difference, however, is that, as far as indirect disability discrimination is concerned, there is no requirement for the employer to be aware that the employee has a disability.
Under s.19 of the Equality Act 2010, a provision, criterion or practice that puts people who share the protected characteristic of disability at a particular disadvantage compared with others who do not share it will amount to discrimination, unless the employer can show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim.
Section 6(3)(b) clarifies that, when s.19 refers to people who share the protected characteristic of disability, it means people who have the same disability. A claimant does not need to show that disabled people as a whole suffer a particular disadvantage. What matters is that people with the same disability as the claimant suffer the disadvantage.
What remains unclear, however, is how a tribunal’s analysis will be affected by the fact that one disability may affect individuals in completely different ways. Taking multiple sclerosis, for example, no two people will experience precisely the same symptoms.
Suppose an employer requires employees to operate a piece of equipment requiring some manual dexterity. An individual with multiple sclerosis may be unable to perform this task and suffer a disadvantage as a result. It may be difficult, however, for the individual to show that this disadvantage applies particularly to people with multiple sclerosis. In the first place, it may be that many people with multiple sclerosis would not be affected by the requirement, or not to the same extent as the claimant. This is likely to make it difficult for the tribunal to reach any conclusions about whether or not people with multiple sclerosis are put at a “particular disadvantage”. There is also an issue about the comparison to be used. Section 19 specifies that the claimant must suffer a disadvantage compared with people who do not share his or her disability. But does that mean people with no disability relating to manual dexterity or just people without multiple sclerosis? Section 23(1) specifies that, in a comparison undertaken in relation to either direct or indirect discrimination, “there must be no material difference between the circumstances relating to each case”. It is unclear how this would affect the comparison to be done in a case of indirect disability discrimination.
In our multiple sclerosis example, it could be argued that the comparison should be carried out between people with multiple sclerosis who have a manual dexterity problem and people without multiple sclerosis who have a similar manual dexterity problem. If this approach were to be taken, it would seriously erode the scope of indirect disability discrimination.
It was concern about the potential for arguments such as this that prompted disability rights campaigners to press for something more than a mere extension of indirect discrimination to cover disability – hence the addition of s.15 of the Equality Act 2010, discussed above. The considerable degree of overlap between the two forms of discrimination is, however, likely to lead to claimants alleging both discrimination “arising from” disability and indirect discrimination in relation to any complaint, so as to improve their overall chances of succeeding.
The duty to make reasonable adjustments
The key provision in relation to disability discrimination remains the duty to make reasonable adjustments, which is set out in s.20 of the Equality Act 2010. The Act makes a number of changes to the duty, which are intended to clarify its scope and to strengthen the position of disabled people.
Section 20 provides that the duty to make reasonable adjustments consists of three separate requirements. The first requirement is familiar and provides that, where a provision, criterion or practice puts a disabled person at a substantial disadvantage in comparison with someone who is not disabled, the requirement is to take such steps as it is reasonable to have to take to avoid the disadvantage.
The second requirement applies where a physical feature puts a disabled person at a substantial disadvantage compared with non-disabled people. The requirement is to take such steps as it is reasonable to have to take to avoid the disadvantage. This is not new, but in the process of harmonising the requirements in relation to employment and other areas of discrimination law, such as the provision of services, the requirement is extended. There is no longer a requirement that the physical feature should be a feature of premises occupied by the employer, as currently provided by the Disability Discrimination Act 1995. In addition, the definition of physical feature is expanded (drawing on provisions currently in the Disability Discrimination (Service Providers and Public Authorities Carrying Out Functions) Regulations 2005 (SI 2005/2901)) to make it clear that it covers:
- a feature arising from the design or construction of a building;
- a feature of an approach to, exit from or access to a building;
- a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises; or
- any other physical element or quality (s.20(10)).
The requirement in relation to physical features is further defined in s.20(9), which states that a reference to avoiding a substantial disadvantage includes a reference to removing or altering the physical feature in question, or providing a reasonable means of avoiding it.
The third requirement is one that is found in current legislation in relation to the provision of services, but the Equality Act 2010 extends it to apply in the employment sphere. This is the requirement to take reasonable steps to provide an auxiliary aid where the absence of such an aid would place a disabled person at a substantial disadvantage when compared with persons who are not disabled. While this is not part of the specific requirements relating to employment under the Disability Discrimination Act 1995, the provision of such aids (which could include hearing induction loops, and special computer hardware/software) would certainly be regarded as part of the overall duty. It may nevertheless be the case that this extra emphasis on auxiliary aids leads to more consideration of this kind of adjustment in the future.
One rather puzzling change to the current provisions on reasonable adjustments is the removal of any guidance about what factors should be taken into account in deciding whether or not a particular adjustment would be a reasonable one. Section 18B of the Disability Discrimination Act 1995 provides a list of such factors, including the financial resources of the employer, the cost of making the adjustment and the extent to which the adjustment would be effective in removing the disadvantage.
There is no equivalent to this list in the Equality Act 2010, although the draft Code of practice on employment (on the Equality and Human Rights website) largely reproduces the list as the type of things that tribunals are likely to take into account in deciding whether or not an adjustment would be reasonable. Nevertheless, it is surprising that a range of factors to which tribunals are currently required to have regard in deciding whether or not an employer has complied with the duty should simply disappear from the legislation. This is likely to cause some doubt and confusion, particularly on the vital issue of whether or not the cost of a reasonable adjustment is something that must be taken into account.
Also missing from the Equality Act 2010 is a list of suggested reasonable adjustments. This list is currently found in s.18B of the Disability Discrimination Act 1995 and suggests, among other things, that employers may alter working hours, modify equipment or consider transferring the employee. Missing this list out of the Equality Act is unlikely to have a major impact on how tribunals approach the question of reasonable adjustments, but it is surprising that such authoritative guidance has simply been omitted.
Both of these omissions may be remedied by Regulations. Section 22 of the Equality Act 2010 allows for Regulations prescribing matters to be taken into account in deciding whether or not a particular step is a reasonable one. However, it would surely be against the consolidating spirit of the Equality Act to remove a current provision of the Disability Discrimination Act 1995 and enact similar guidance in a separate set of Regulations. Nevertheless, unless that is done, there will be a period of uncertainty about the scope of the duty to make reasonable adjustments, until the issue is clarified by case law.
As the Equality Bill progressed through the House of Lords, two changes were made to the duty to make reasonable adjustments. The first, set out in s.20(6), provides that, where a reasonable adjustment duty relates to the provision of information, the steps that it is reasonable for the employer to have to take include ensuring that the information is provided in an accessible format. In other words, employers should consider providing information to employees in formats such as Braille or large type. This may seem obvious and would undoubtedly be something that would have been held to be within the scope of the duty as originally drafted. However, debate in the House of Lords persuaded the Government that there was value in making this potential requirement explicit. In practical terms, this provision will do much to ensure that the accessibility of information for people with disabilities is at the centre of any consideration of reasonable adjustments.
The second change is that s.20(7) of the Equality Act 2010 provides that a person who is under an obligation to make reasonable adjustments is not entitled to require the person for whom the adjustment is being made to pay, to any extent, the costs of making the adjustment.
At first glance this seems obvious: if there is a duty to make a reasonable adjustment, then an employer that fails to make that adjustment unless the employee pays for it is obviously not complying with the duty. However, not every situation will be so straightforward. Under the Disability Discrimination Act 1995, part of the reasonableness test regarding the duty to make reasonable adjustments is the cost of making the adjustment. There will be circumstances where a potential adjustment sits just past the boundary of reasonableness because of its cost. Presumably, if the employee offered to pay a contribution, that would make the adjustment a reasonable one, and the employer would be obliged to make it. For example, the purchase of a special hearing aid might be too expensive for a small employer, but manageable if the employee agreed to pay towards it on the basis that he or she could keep it if the employment ended. Section 20(7) may complicate such situations by appearing to provide that an employee cannot be asked to contribute in this way.
A tribunal may, however, be persuaded that the adjustment to which the employee is contributing would not be a reasonable adjustment because it is too expensive. On this analysis, the reasonable adjustment is the employer’s contribution towards the hearing aid rather than the full purchase of it, and s.20(7) would merely mean that the employee could not be asked to pay to the extent that the employer paid less than it would otherwise be reasonable to expect it to. Once again, we will have to wait for case law to develop to determine just how this provision falls to be applied.
Questions about health
Standing slightly apart from the overall disability discrimination regime – but of central relevance to it – is a new provision in s.60 of the Equality Act 2010 dealing with enquiries about disability and health.
The problem that this provision seeks to solve is this: suppose a job applicant is asked at an early stage of the recruitment process whether or not he or she has any disabilities or health conditions that may affect his or her work. If the applicant says yes, and subsequently does not get the job, it may be very difficult for the applicant to prove that it was the answer to this question that led to the application failing. Disability discrimination may therefore be hidden among the many different reasons that an employer may have for rejecting applicants at an early stage of the recruitment process.
Section 60(1) of the Equality Act 2010 therefore seeks to flush out such discrimination by making it unlawful for an employer (or any recruitment agency or consultant) to “ask about the health” of a job applicant before offering work to, or shortlisting, the applicant.
This provision does not give individuals a specific cause of action on which they can sue in the employment tribunal. Rather, the enforcement of the provision is left to the Equality and Human Rights Commission, under part 1 of the Equality Act 2006. This allows the Commission to serve an unlawful act notice on the employer (s.21 of the Equality Act 2006) recommending that it take specific action or that it prepare an action plan for the purpose of ending the unlawful practice. The Commission can also obtain an injunction against the employer preventing it from committing the act in future.
As far as individual claimants are concerned, the fact that an employer has breached s.60 will be relevant in relation to any subsequent discrimination claim. Section 60(4) and (5) provides that, if a job applicant alleges that the employer committed disability discrimination, based on the answer that the applicant gave to a question that breached s.60(1), the complaint is to be treated as facts from which discrimination could be inferred for the purposes of the burden of proof provision in s.136.
In other words, if the employer asks an unlawful question about health during the recruitment process, and the applicant does not get the job, in any subsequent disability discrimination claim the burden of proof will be on the employer to show that there was no discrimination.
Employers will therefore want to be careful not to contravene s.60(1). Both written and oral questions are outlawed by the provision, so those conducting job interviews will have to be careful to avoid the subject of health or fitness. Further, the provision is not limited to questions directed at the job applicant. A request for a reference sent before a job offer is made must also avoid asking questions that contravene s.60(1).
Section 60 is concerned only with questions asked prior to a job offer or shortlisting. A job offer can be conditional (s.60(10)), so employers can still make job offers conditional on certain health checks.
Further, there are circumstances in which an enquiry about an applicant’s disability or health is perfectly appropriate, and s.60(6) attempts to take account of this. It contains five exceptions to the rule that an employer must not ask about a job applicant’s health before making a job offer or a shortlisting decision. These are where the question is necessary for the purpose of:
- establishing whether or not the applicant will be able to undergo an assessment (a job interview or sitting a test, for example), or whether or not the employer will need to make any reasonable adjustment in connection with the assessment;
- establishing whether or not the applicant will be able to carry out a function that is intrinsic to the work concerned;
- monitoring diversity in the range of people applying to the employer for work;
- taking positive action in relation to disabled people (but see below for a problem with this exception); or
- where there is a requirement to have a particular disability for the work, establishing whether or not the applicant has that disability.
The scope of these exceptions is likely to be the source of considerable confusion for employers uncertain about what they can and cannot ask job applicants. Employers may, for example, be surprised to learn that, while they can ask job applicants whether or not they have a disability that will require reasonable adjustments to the selection process, they cannot ask about disabilities that will require reasonable adjustments to the job itself until after the job has been offered. They can, of course, ask whether or not an applicant can carry out a function “intrinsic to the work concerned”, but it is far from clear how wide this exception is. Clearly it would cover the ability of a forklift truck driver to drive a forklift truck, but would it cover asking whether or not someone has a mental health issue that affects his or her ability to work long hours? It would appear that this exception does not permit an enquiry about an applicant’s likely level of sickness absence, as this is about overall performance in the role rather than ability to carry out an intrinsic job function. The interview question “how many days off sick have you had in the last year?” is rendered unlawful by s.60(1).
Section 60(7) provides that a reference to an intrinsic job function is a reference to one that would be intrinsic to the work once an employer has complied with a duty to make reasonable adjustments. However, the provision applies only where the employer reasonably believes that the duty to make reasonable adjustments will apply. Since the employer cannot ask if the applicant has a disability, to find out if the duty applies, it is rather difficult to see how this provision can work.
There is also a technical issue with the exception relating to positive action. As we have seen above, the scope of positive action in the Equality Act 2010 is much wider in relation to disability discrimination than it is in relation to the other protected characteristics. Thus, employers operating the “two ticks” scheme will be able to guarantee an interview to disabled applicants who meet the minimum criteria for the job. However, the exception in s.60(6) refers to positive action that would be covered by s.158 of the Act. The problem is that s.158 does not cover positive action in relation to recruitment or promotion (s.158(4)(a)), so it is difficult to see what positive action under s.158 could realistically necessitate a question about disability or health as part of the recruitment process.
The drafting of s.60 is therefore unsatisfactory in a number of respects and would benefit from an early review.