Equality Act: new disability discrimination provisions and employers

Some of the most significant changes to the new Equality Act can be found in the provisions relating to disability. Daniel Thomas assesses what they mean for employers.

For the first time, under the Equality Act coming into force in October 2010, employers will be prevented from asking candidates questions about their health that are unrelated to the job role. It will mean those with mental health issues, a medical condition or a disability will not be forced to disclose their condition prior to the offer of employment, unless it hinders their ability to do the job.

The Act will also extend the law on direct discrimination to include discrimination by association and perception to disability; introduce the concept of indirect discrimination relating to disability; and replace disability-related discrimination with “discrimination arising from disability” (following the ruling in Lewisham v Malcolm, which greatly reduced the scope of disability-related discrimination).

As part of the harmonisation of existing discrimination legislation, employers will be prohibited from discriminating against a disabled person by treating them unfavourably where that treatment is “not a proportionate means of achieving a legitimate aim”. Under the Disability Discrimination Act, employers only had to show that the treatment was “justified”.

Pre-employment health checks

The restriction on pre-employment health checks may make it difficult for employers to make reasonable adjustments, according to Linda Scott, HR director at the British Transport Police.

“We will continue to require a physical test as part of the recruitment, as this is a requirement of the role for a front-line officer and would potentially be a health and safety issue if we deployed an officer who was not physically fit for the role,” she says. “On the reasonable adjustments, I think it will be very difficult for employers and employees to get this right if there is no conversation in advance of a person starting – I can see tribunals’ work increasing.”

But Rachel Dineley, employment partner at law firm Beachcroft, insists that the provision should not hinder employers’ attempts to make reasonable adjustments prior to someone starting work. “It shouldn’t do if employers go about the recruitment process in the right way and stay focused on the requirements of the job and invite relevant information from candidates,” she says.

“It is not an absolute ban – but there are prescribed circumstances, so that employers should not try to identify candidates who have a disability and screen them out for discriminatory reasons. For example, it is not considered relevant to ask an applicant for a job as a forklift truck driver if they have suffered from any mental illness, but it will be appropriate to ascertain whether any physical disability would affect the intrinsic skills required of the job.”

Discrimination by association

The ban on discrimination by association will see the Equality Act incorporate the European Court of Justice’s July 2008 ruling in the Coleman v Attridge Law case into law. Sharon Coleman, a legal secretary with the law firm, lodged a claim after alleging she was subject to harassment and discrimination after asking for time off to care for her disabled son.

While the Act does not provide ‘protection for carers’, as has been suggested in some reports, associative discrimination claims are most likely to arise in relation to flexible working requests to care for disabled or elderly relatives, predicts Marian Bloodworth, employment lawyer at Lovells law firm.

“The key action for HR at this stage is to make sure that robust procedures are in place to deal with such requests – managers should be taking decisions about whether to grant or refuse such requests based on genuine business reasons and documenting these appropriately,” she says. “It would then be difficult for an employee to argue that the refusal of a request was discriminatory on the grounds of association because they will not be able to show that other employees would have been treated differently.”

Prohibiting discrimination due to perception, as well as association, was an important step, according to Bela Gor, legal and policy director at the membership organisation Employers’ Forum on Disability.

“We were very pleased because this was not covered before,” she says. “In a recent case, a nurse claimed she was dismissed because her partner was suffering from HIV – and she had no protection.”

Indirect discrimination

The introduction of indirect discrimination will have an immediate impact on employers, Gor warns. “Indirect discrimination in disability was always dealt with via reasonable adjustments that were made on an individual basis,” she says. “Now, employers will have to anticipate disabled employees and think about impact on a group of people. For example, if they are creating a new intranet for staff, they will have to make sure it is accessible to blind and partially sighted employees.”

Equality Act: Disability provisions at a glance

  • Pre-employment health questionnaires restricted.
  • Direct discrimination extended to include discrimination by association and perception to disability.
  • Indirect discrimination relating to disability introduced.
  • Disability-related discrimination replaced with “discrimination arising from disability”.
  • Employers must now prove that treatment of a disabled employee was a “proportionate means of achieving a legitimate aim”.
The provision requiring employers to prove that their treatment of a disabled employee was a “proportionate means of achieving a legitimate aim” will create uncertainty until case law is created, warns Darren Newman, consultant editor at XpertHR.

“Under the old regime, it was generally understood that the standard of justification was the same as in unfair dismissal cases,” he says. “There is going to be a period of uncertainty while the courts work out what a reasonable treatment is.”

Uncertainty

The level of overlap between what can be considered “indirect discrimination” and “discrimination arising from disability” will also create legal uncertainty, Newman predicts. “Anything that would be indirect discrimination could also be discrimination arising from disability,” he says. “One of the key differences is that you don’t need knowledge [of an employee’s disability] to fall foul of indirect discrimination.”

The restriction on pre-employment health questions is “freaking out” employers, because they are fearful they won’t be able to ask how many sick days a candidate may have taken, Newman says. “Asking an interviewee ‘how are you this morning’ will technically be illegal,” he adds.

But Gor insists that good employers will be complying with the new legislation already, and stresses that previous sickness absence isn’t necessarily an indicator of future absence. “Overall, the legislation relating to disability hasn’t changed that much,” she adds. “The only things that changed needed to be changed.”

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