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.
With the coalition Government having announced that it is to implement the Equality Act from October 2010 onwards, we set out the top four things you need to know about changes to the law on disability discrimination under the Act.
- The new definition of direct discrimination – less favourable treatment “because of” the protected characteristic of disability – is wide enough to cover discrimination by association. So, for example, if an employee was refused a job because he or she had a disabled child, this would be direct discrimination. 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 Act introduces a new form of disability discrimination – discrimination “arising from” a disability. This dispenses with any need for a comparator. It simply requires that the claimant has been treated “unfavourably because of something arising in consequence” of his or her disability. For this type of discrimination to occur, the employer has to know, or reasonably be expected to know, that the employee has the disability in question.
The Government Equalities Office guidance gives the example of a disabled employee who, because of his or her disability, has to take more time off than other employees. If the employer treats the employee less favourably because of this, this will be unfavourable treatment because of something – the absence – arising in consequence of the employee’s disability.
- At present, to receive protection from disability discrimination, individuals 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. An impairment is 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.
This list of capacities is removed under the Equality Act, leaving tribunals to make a common-sense decision about whether or not a particular impairment has a substantial effect on day-to-day activities. The Government Equalities Office guidance states that this will make it “easier for someone to show that they have difficulty carrying out their day-to-day activities, and therefore that they come under the definition of ‘disabled person’”.
- The Act makes 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. 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.
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. And 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 the provision.
For more detailed guidance on the practical impact of the new disability provisions on the workplace, as well as information on the areas where the drafting of the Equality Act is likely to result in uncertainty for employers, become a member of Personnel Today Plus and read this article in full. Sign up for free.