Disability Discrimination – Further Information
The following is intended to provide a brief introduction to aspects of disability discrimination.
It explains some of the key basic ideas unique to disability and should not be taken or treated
as legal advice. It should be read in conjunction with “Discrimination: a brief guide”. Any
specific queries or problems relating to issues covered in this briefing note may be addressed
via the Markel Helpline.
The Equality Act 2010 (“the EA”) governs the protection that is given to disabled people within
the employment field. This protection is based on a number of additional key concepts that
are discussed below.
1.
Disability
A person will be disabled for the purposes of the EA if they satisfy all four tests set
out below:
1.1
They have a Physical or Mental Impairment
There is no definition of “impairment” in the EA. However the concept should
be given its “ordinary and natural meaning”. An employment tribunal will
apply its own good sense to establish this and so the same approach ought
to be adopted by employers.
1.2
The Condition affects Normal Day to Day Activities
To be seen as having an effect on normal day to day activities, the
impairment must have an effect on activities that are considered normal for a
large number of people and that are carried out daily or frequently. The fact
that an activity is an integral part of a job will not necessarily make it a day to
day activity.
Examples of day to day activities might be going shopping, walking or
travelling by public transport or car, carrying out household tasks, reading
and writing or following simple routines such as recipes in a book.
For example, if a person developed a condition that prevented her from
playing the piano this would not be seen as having an effect on day to day
activities. However, if it also stopped her from using a computer keyboard to
send emails then it would be seen as having this effect.
1.3
The effect is substantial
The EA says that the effect has to be substantial. For example, it would be
reasonable to treat inability to climb a flight of stairs or to walk without
unsteadiness as substantial. However, inability to walk a mile without
tiredness or minor discomfort would not be seen as substantial. Similarly,
inability to open door knobs or grip a handrail would be likely to be seen as
substantial effects but inability to thread a needle or carry out similar fine
motor skills would not.
If the effect ceases to be substantial, an employer must also consider
whether that effect is likely to reoccur. If so, then the effect will continue to be
seen as more than minor or trivial.
If an employee adopts coping strategies or is helped by medication, the effect
should be considered as if the coping strategies or medication were not used.
1.4
Long Term Effect
The affect of the impairment will only be seen as a long term affect if it has
lasted at least 12 months; if it is likely to last for 12 months; or if it is likely to
last for the rest of an employee’s life.
2.
Additional types of discrimination
In addition to the forms of discrimination in the EA common to all forms of
discrimination, there are additional forms unique to disability.
2.1
Discrimination arising from a disability
A person will discriminate against a person if they treat them unfavourably as
a consequence of an issue arising from their disability. For example, if a
secretary is less productive because they can not type as fast as other
employees due to arthritic problems, and they are dismissed because of this,
this will be seen as disability discrimination. However, if the employer can
show that this discrimination was a proportionate way of achieving a
legitimate aim, it may be possible to defend this form of discrimination (but
not direct discrimination) on the grounds that it is justified.
An employer will not be liable for disability discrimination if they did not know,
or could not have reasonably have been expected to know, and the
employee’s disability.
2.2
Duty to make reasonable adjustments
Where a disabled person is put at a substantial disadvantage in comparison
with non-disabled people by a requirement of his job, a feature of his
employer’s premises, or due to the need for an auxiliary aid, the employer
has a duty to make “reasonable adjustments” to ensure that the disabled
person is not disadvantaged. A failure to do this will amount to disability
discrimination.
For example, an employer that has a policy providing designated parking
spaces to senior managers may make a reasonable adjustment where it
allows an employee who is not a manager but has a mobility impairment to
park very close to the office.
3.
Pre-employment health questionnaires
From 1 October 2010, employers can no longer ask job applicants questions about
their health and whether they have a disability, including whether the applicant will be
able to carry out a function which is intrinsic to the work concerned, except in very
specific circumstances.
Employers will still be entitled to screen applicants about health after making a job
offer, or after including the applicant in a pool of successful candidates to be offered
work.
© DAC Beachcroft LLP
February 2013