The new Equality Act provisions seek to balance competing interests concerning disability in a legal minefield. Anne Pritam, a specialist in employment and partnership law, looks at why the Act came about.
Discrimination laws are like buses; you wait for ages then three come along at once. In the 1970s and 1980s, employers only had to be concerned with ensuring racial and sexual equality. But a rash of European legislation compelled the UK Parliament to enact legislation covering disability, sexual orientation, religion/belief and age.
To bring all the strands together, the last Government embarked on the magnum opus that is the Equality Act 2010, which was rushed through the statute books in the “wash-up” at the end of the parliamentary term. The opportunity was taken to tidy up certain areas of law, including disability discrimination, but many questions around the new law remain.
It has never been easy to legislate for the protection of disabled people in the workplace. As Lord Justice Mummery observed in the seminal case of Clark v Novacold, “anyone who thinks that there is an easy way of achieving a sensible, workable and fair balance between the different interests of disabled persons, of employers and of able-bodied workers in harmony with the wider public interests in an economically efficient workforce, in access to employment and equal treatment of workers and in standards of fairness at work, has probably not given much serious thought to the problem”.
There is a conceptual challenge in providing discrimination protection, which is wholly different from the other “protected characteristics” under the Equality Act. The essence of anti-discrimination protection for the characteristics of race, sex, sexual orientation, religion and age is equality and equal treatment. Yet disability discrimination, by definition, cannot be about equal treatment, but fair treatment.
Disability discrimination, by definition, cannot be about equal treatment but fair treatment”
The aim of the legislation must always be to achieve a “level playing field”; but for each individual, the playing field will look different. This means that when occupational health specialists, lawyers and human resources professionals look to case law to guide their decisions in tricky management situations involving disabled people and their rights in the workplace, they are hampered by the fact that almost all case law is fact-driven. In other words, it is difficult to draw legal precedents because what is needed to treat one person with a particular disability fairly may be very different for another person.
Add to that the heady combination of domestic and European political influences, change in social attitudes and questions around healthcare in the UK, and the net result has been at best an asymmetric set of obligations and entitlements.
Unintended consequences and the Malcolm decision
All new legislation brings with it the operation of the “law of unintended consequences”, and no consequence could have been more unintended than some of the uses to which the Disability Discrimination Act (DDA) 1995 was put by inventive lawyers, and the conflicting findings of judges, in particular in the case of Malcolm v Lewisham Borough Council. It is important to look backwards in order to determine what we can expect under the new law.
Back in the early days of the DDA 1995, the first disability case to reach the Court of Appeal (Clark v Novacold, March 1999) concluded that where a person is treated less favourably for a reason that relates to his or her disability, a tribunal must analyse if discrimination has occurred by comparing that treatment with how someone to whom the reason does not apply would have been treated (regardless of whether they are disabled or not).
Putting that into the most common scenario with disability, it means that where a person was dismissed further to long-term sickness absence arising from a disability, the question that a tribunal had to ask was whether or not an employer would have dismissed someone who did not have that disability and had not been absent. This is a circular test, since in practice an employer would have had no reason to dismiss someone who was not absent. So the absent person had an advantage in showing he or she had been less well treated than the person (real or hypothetical) who was not sacked. In practice, employers’ defences turned on the justification of their actions.
Many, particularly among the legal community representing employers, consider that test to be fundamentally unfair. How could an employer ever justify its decisions relating to a disabled person if the benchmark was how a person to whom the very reason for dismissal did not apply? The comparison is meaningless.
OH and HR professionals and lawyers had all learned to live with the Clark v Novacold test, when along came Lewisham Borough Council v Malcolm – a House of Lords decision in 2008. The outcome went back right the other way, in favour of the employer. Although the Malcolm decision related to housing issues not employment, and in fact turned on the limited statutory defences available in housing claims, its conclusion (which came to be adopted in employment disability discrimination cases) was that a comparator in a disability-related discrimination claim is in fact a non-disabled person with the same characteristics as a disabled person. In other words, in the absence scenario above, the employer’s treatment of the disabled person should be compared with how they would have treated someone who was not disabled but had been absent.
Understandably, lawyers representing claimants were up in arms: how could a claimant ever succeed on any claim for discrimination for a reason related to disability in light of this new revised test? The focus switched from claims for disability-related discrimination, which were generally acknowledged by claimant lawyers to be hopeless, to the employer’s duty to make reasonable adjustments, where greater inroads could be made into criticising employers’ behaviour.
The Equality Act 2010 – an attempt to find a solution
The problems arising from the Malcolm case filtered through to Parliament and Government, which took on board the impact of the case when drafting the new Equality Act. In a rare show of unity, the Equality and Human Rights Commission, employers’ body the CBI, the Employment Lawyers’ Association, and firms and chambers representing both claimants and employers all joined the consultation on drafting the new Equality Act to resolve the situation. Lengthy debate ensued at the House of Commons, House of Lords and committee stages of the new Equality Bill.
Equality Act 2010
Discrimination arising from disability
(1) A person (A) discriminates against a disabled person (B) if:
(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.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
The resulting wording in s.15 (see box) is probably as good as it could get in the light of competing interests and suggestions. It is certainly a good deal clearer than the first-draft wording issued for consultation.
Unresolved questions in the Equality Act definitions
A few key points to note are:
> There will be no discrimination if A (the employer) shows that it did not know and could not reasonably have been expected to know that B (the individual) had the disability. This means that there will be no defence if it is obvious that the employer should have made reasonable enquiries. It is a case of the “elephant in the room”: if you ignore it when everyone else can clearly see that it is there, then there will be no defence. OH professionals should be pleased that this principle is now codified in legislation.
> The government guidance is clear that a comparator is no longer required to bring a claim under the new provisions of s.15, which means farewell to all the arguments of Malcolm, in theory. You might wonder why, in that case, the word “unfavourably” appears at s.15 (1)(a). There is no explanation in the government guidance save that it seems the draftsmen felt that “unfavourably” carries no connotation of comparison, unlike the traditional formulation “less favourably”, where a comparator is required. Interestingly, references to “detrimental treatment” were dropped from earlier drafts. Lawyers are already clear that on an evidential basis, it will be hard to show if unfavourable treatment has or has not occurred, if no comparisons or benchmarks are presented to a tribunal.
> There is an interesting quirk at s.15(1)(b). It states that A (the employer) will be liable for the discrimination if it “cannot show” that the treatment is a proportionate means of achieving a legitimate aim. The equivalent legislation for the other protected characteristics refers simply to the treatment being a proportionate means, rather than carrying any reference to the employer having to “show” that it is. This begs the question of whether Parliament intended that there should be a higher evidential test for employers to justify discrimination arising from disability, rather than the threshold in other classes of discrimination. While this seems unlikely to have been Parliament’s intention, lawyers that are looking for novel ways to present arguments will no doubt pick up on the distinction.
> Section 15(2) also includes a single word that could give rise to some interesting litigation. “Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.” This seems straightforward. An employer can legitimately excuse itself by saying that it could never have been expected to know that a disabled person had the impairment and therefore its treatment of the disabled person was simply in ignorance. However, s.15(2) speaks of “the” disability. Does this mean that if an employer is faced with a situation where it treats someone unfavourably but in fact the individual in question had a disability different from that which the employer expected, it can abrogate responsibility?
To put this situation in a practical context: an employee is prone to tearful bouts and frequently cries at her desk in the mornings. She is passed over for promotion because the employer feels she is too emotional to take on management responsibilities. The employer does not know, but reasonably suspects (and is therefore on notice in legal terms) that the individual concerned is depressed.
The employee brings a claim for disability discrimination in which she reveals that she has been diagnosed with multiple sclerosis and believes that the employer did not want to promote her because it knew there was an issue with her wellbeing. In this case, it is probably fair to say that the employer could not reasonably have been expected to know that she had that particular disability. Does this therefore mean that the individual’s claim will fail? This is a moot point as things currently stand.
The Equality Act supports the principle of both associative discrimination and perceptive discrimination”
The Equality Act generally supports the principle of both associative discrimination (as illustrated in the recent European decision in Attridge v Law) and perceptive discrimination, whereby if someone is perceived to be a member of protected group and is treated unfavourably because of that, it is sufficient to ground a discrimination claim. For example, an Asian woman who suffers harassment in the workplace because her colleagues believe she is Muslim, but is in fact Hindu, can still present a claim for religious discrimination because the discrimination was based on the perception of her colleagues.
The new form of discrimination is being referred to as “discrimination arising from disability”. When considering the impact of the equality, practitioners should have regard to the full definition. The wording is carefully chosen: it relates to “something arising in consequence of B’s disability”, which means that there must be “something” to give rise to the claim. It is not the disability itself that gives rise to the claim but the impact of the disability in the workplace (for example, absence, inability to concentrate and emotional reactions).
Interplay with other issues
Although the above may already have exhausted your capacity for legal problem solving, it is also worth noting that the Equality Act does not entirely address many other practical issues, including:
- how to deal with confidentiality and the knowledge that an OH professional has of a patient’s condition, particularly in light of the new prohibition on pre-employment enquiries about health (s.60);
- how reasonable adjustments should be assessed in light of new s.15 provisions (s.20);
- how to define a disability, given that the Schedule 1 tests of mobility, manual dexterity and so on, have now been swept away (s.6); and
- how precisely employers should deal with positive action (s.158) and, as mentioned above, question marks around claims arising from the perception of disabled people in the workplace.
Anne Pritam is a partner at law firm Stephenson Harwood. She would like to hear OH practitioners’ thoughts and comments on the implementation of the new Equality Act and the effect it has had.