One of the most difficult areas of discrimination is that of disability discrimination. The legislation covers more than just treating somebody less favourably due to their disability but also deals with whether or not such treatment might be justified in specific circumstances as well as the requirements to ensure that disabled people have equal access to services.
The Meaning of “Disability”
Whether or not a person is disabled is defined by a specific criterion. The person must have a “physical or mental impairment which has a substantial long term adverse effect on [the person’s] ability to carry out normal day to day activities”. This definition needs to be broken down into its component parts. Although there is official guidance on each area as to what may or may not constitute a qualifying disability, there is no longer a list of what is included within “day to day activities.
When considering any potential disability discrimination claim the first step is to ascertain whether the person suffers from a disability within the meaning of the legislation. If they do not, then they will not be able to bring a claim for disability related discrimination.
Types of Discrimination
The Equality Act 2010 has established two new types of discrimination. Firstly, discrimination ‘arising from disability’ and secondly, ‘indirect disability discrimination’.
A person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of disability. This may include anything which is the result, effect or outcome of a disabled person’s disability and does not require the disabled person to establish that his or her treatment is less favourable than that experienced by a comparator.
Indirect discrimination is concerned with a provision, criterion or practice (PCP) which is not intended to treat anyone less favourably, but which in practice has the effect of disadvantaging a group of people with a particular protected characteristic. The employee has to show that the PCP put or would put them at the relevant particular disadvantage.
The employer may defend both these forms of discrimination by demonstrating the treatment was a proportionate means of achieving a legitimate aim.
The concept of direct discrimination remains but the wording has changed slightly. The words “because of” replace “on the grounds of”, as with all the protected characteristics. A directly discriminates against B if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Direct discrimination can never be justified.
In addition the Equality Act 2010 now makes it clear that direct discrimination covers less favourable treatment of an individual because he or she associates with a person who has any of the protected characteristics, or because he or she is wrongly perceived to have a protected characteristic.
Duty to Make Reasonable Adjustments
If an employer knows, or ought reasonably to have known, of an employee that it suffers from a disability, it is under a duty to make reasonable adjustments to ensure that if some factor has a detrimental effect on the employee which results in less favourable treatment, this is ameliorated as far as possible. This may include, for instance, widening a doorway for a wheelchair user or acquiring a Braille keyboard for someone with poor sight, or enhanced hearing aids for telephonists with poor hearing.
Although not made explicit in the new legislation, the extent to which the employer has a duty to make reasonable adjustments is likely to depend upon a number of factors. These include the size and resources of the employer, the extent to which it is practicable to make such an adjustment, the extent of the effect of the adjustment on the disabled person, the financial cost and the nature and size of the employer’s business.
There is also a requirement to make adjustments to access to services for disabled people. This requirement is for access to the service rather than the premises, unless of course the service can only be provided by the person entering or using the premises itself. For instance, shops must now all have disabled access and facilities because people can only sample the merchandise if they access the premises. If however the service can be provided by a way other than effecting changes to the premises themselves, this would be acceptable, for example, by telephone or internet.
An employee is entitled to bring a claim in an Employment Tribunal for discrimination by reason that he/she has been treated less favourably because of his/her disability. Such claims attract potentially unlimited awards of compensation because there is no statutory cap. If an employee claims that he/she was dismissed because of disability, there would be no maximum amount which he/she could claim as losses.
There is no minimum period of qualifying service to bring a claim for unfair dismissal on the grounds of, or for a reason relating to, disability discrimination.
Job candidates may also bring discrimination claims. Any employer who turns down a disabled candidate needs to be very sure that their reasons for doing so are unrelated, and are seen to be unrelated, to that person’s disability, or that such reasons are capable of being justified (but beware that if the discrimination is direct, the justification defence cannot be used).
Employees may also bring claims based on discrimination by association. For instance, if a carer of a disabled person is treated less favourably for reasons connected to that person’s disability (i.e. the carer’s request for time off/flexible working to care for the disabled person is refused) that carer can bring a claim for disability discrimination.
When dealing with employees with a high record of sickness absence, employers should be aware that the cause of their illness may qualify as a disability. Whilst it is important that company procedures are followed when managing long term sickness absence, consideration should be given to the making of any reasonable adjustments if it is possible that the illness in question may qualify as a disability. If the employee is ultimately dismissed for incapability due to ill health, the employer does not want to have to face a disability discrimination claim which might succeed if the employer has failed to take account of the disability legislation.
This is particularly important where an employer wants to dismiss for sickness absence someone employed for under a year without following procedures, because employees do not have to be employed for one year to bring a discrimination claim.
Pre Employment Health Check Questionnaires
Section 60(1) of the Equality Act prohibits employers from asking pre-employment health questions except for the limited purposes set out in s 60(6) (such as, for example, establishing whether the employer needs to make reasonable adjustments in the recruitment process or establishing whether the applicant will be able to carry out a function that is intrinsic to the work concerned).
Asking prohibited pre-employment health questions will not in itself amount to actionable discrimination. However, what the employer does in response to the answers given might well do.
Exceptions to the ban on pre-employment questionnaires:
Section 60 is not a blanket ban on pre employment health enquiries. It does not apply to questions that are necessary for any of the following purposes:
- Establishing whether the job applicant will be able to comply with a requirement to undergo an assessment or establishing whether a duty to make reasonable adjustments will arise in connection with such a requirement
- Establishing whether a job applicant will be able to carry out a function that is intrinsic to the work concerned
- Where the employer reasonably believes that a duty to make reasonable adjustments would apply
- Monitoring diversity in the range of job applicants
- Taking positive action for disabled people
Functions intrinsic to the work
The word ‘intrinsic’ is not defined. Therefore how ‘core’ a particular job function will have to be in order to establish this exception is debatable. Employers should be cautious of assuming that every item of a job description is to be so regarded, especially in roles comprising several different types of function. The function must be necessary to the job.