Legal opinion: the new disability discrimination regime under the Equality Act 2010

The Equality Act 2010 comes into force on 1 October with the objectives of harmonising, strengthening and clarifying existing discrimination law to support progress on equality.

The new Act provides increased protection for disabled people. The new concept of “discrimination arising from disability” is intended to replace “disability-related discrimination” under the Disability Discrimination Act 1995, which is repealed upon the introduction of the Equality Act 2010.

Former position: disability-related discrimination

Key points:

  • Under section 15 of the Equality Act 2010, an employer discriminates against an employee if it treats the employee unfavourably “because of something arising in consequence of” the employee’s disability, without justification.
  • A disabled employee is no longer required to establish that his or her treatment is less favourable than that experienced by a comparator.
  • This should make it much easier for disabled employees to establish discrimination “arising from” their disability.

The 2008 House of Lords’ decision in London Borough of Lewisham v Malcolm turned disability-related discrimination on its head by requiring a disabled person to prove they have been treated less favourably than a non-disabled person who is otherwise in the same circumstances. For example, a disabled employee on long-term disability-related absence could be lawfully dismissed if the employer would have dismissed a non-disabled employee absent for the same length of time. This significantly weakened the protection available to disabled employees and made it near impossible for employees to succeed with claims for disability-related discrimination.

New position: Discrimination arising from disability

The new Act prohibits employers from discriminating against disabled employees because of something arising in consequence of that disability. Disabled employees will no longer be required to establish that their treatment is less favourable than that experienced by other non-disabled employees. An employee must simply establish that unfavourable treatment is because of something connected with their disability.

Employers will be able to defend such claims successfully if they did not know and could not reasonably be expected to know the employee was disabled; or if they can establish that the treatment was a proportionate means of achieving a legitimate aim.

The wording of the legislation makes clear that the unfavourable treatment must be based on the complainant’s own disability, so those associated with disabled people cannot bring claims of discrimination arising from disability.

Implications for employers

It should be easier for disabled employees to successfully claim discrimination “arising from” disability.

There is likely to be an increase in claims from, for example, dyslexic employees who are criticised or prohibited from undertaking certain tasks due to a tendency to make spelling and grammatical mistakes. Previously, following Malcolm, such employees would have struggled to show less favourable treatment relating to their dyslexia if other non-dyslexic employees making the same mistakes would have been treated in the same way. However, provided dyslexic employees can show the mistakes arose as a consequence of their dyslexia, to successfully defend a discrimination claim the employer will have to either justify the treatment, which is likely to be difficult, or satisfy the employment tribunal that it was unaware of the employee’s dyslexia, which will also be difficult given the obvious signs.

Similarly, employees who are dismissed for long-term absence arising from depression no longer need to compare themselves with non-disabled long-term absentees and are therefore likely to find it easier to prove that their dismissal was discrimination arising from disability if their absence was caused by their depression.

Of course, the employee’s condition must be sufficiently serious and long-lasting to constitute a disability in the first place and conditions such as dyslexia and depression will not always meet the definition. The definition of disability remains largely unchanged by the Equality Act, save that an employee alleging disability no longer has to show that one or more specified “capacities” are affected.

We shall have to see how the new legislation is interpreted by employment tribunals. The changes need not be bad news for employers provided that they get to grips with their obligations under the new Act at an early stage. They should focus on informing and training senior management and line managers and updating their equality policies where necessary.

Eleanor Scholey, solicitor and employment law specialist at Harbottle & Lewis LLP

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