Definition of Disability
Whilst s.4 of the Equality Act 2010 (EA 2010) sets out that disability is a protected characteristic, the main definition of ‘disability’ is taken from case law and has been enshrined in s.6(1) EA 2010. The case of Goodwin v Patent Office provides 4 necessary elements for disability :-
- physical or mental impairment
- the impairment must have an adverse effect on a person’s ability to carry out normal day to day tasks
- there must be a substantial adverse effect
- the effect must be long term
The above definition creates many disputes. In some cases, a disability obviously falls within the above definition, but in many cases, where there may be intermittent symptoms or where an illness is difficult to diagnose, there can be problems. Mental health problems and conditions such as ME or IBS syndrome are particularly problematic.
Who is Protected Under the Equality Act 2010 ?
In employment law terms, under the EA 2010, protection is offered to a wide range of persons. This list includes:
- job applicants and employees
- agency workers
However, one notable exception concerns the armed forces: there are no obligations on employers regarding the protected characteristic of disability in relation to the armed forces.
Forms of Disability Discrimination within the Equality Act 2010
Within the EA 2010, there are four main prohibited acts on employers in relation to persons who are protected under the act, but the 2 which are by far the most common are :-
- direct disability discrimination
- indirect disability discrimination
Direct Disability Discrimination
S.13(1) EA 2010 states that there is direct disability discrimination if, because of a protected characteristic (disability in this case), a person (A) treats another (B) less favourably than A would treat others. The burden of proof lies on the employee and they must use a hypothetical comparator used to show less favourable treatment.
Furthermore, to establish direct disability discrimination, the discrimination must be ‘because of the disability’; the question that should be asked by the Tribunal is ‘what was the employer’s conscious or subconscious reason for the treatment
There is no objective justification for direct disability discrimination.
Indirect Disability Discrimination
Under s.19(1) EA 2010, indirect disability discrimination occurs where A applies to B a ‘provision, criterion or practice’ (PCP) which is discriminatory. This is defined in s.19(2) as being where A applies that PCP to persons who do not have B’s disability, the PCP puts those with B’s disability at a disadvantage when compared to other persons, the PCP puts B at a disadvantage and it cannot be justified as a proportionate means of achieving a legitimate aim.
From an employer’s point of view, knowledge of the disability is not required for liability to occur. However, indirect disability discrimination can be objectively justified. To establish this justification, the employer will need to show that there is a legitimate aim and that the imposition of the PCP is a proportional way of achieving that aim.
Failing to Make Reasonable Adjustments
Under s.20 EA 2010, there is a general duty on employers to make reasonable adjustments to their premises or working environments in order to aid disabled employees or applicants for positions.
The statute provides three situations where the duty arises:
- Where a PCP of A puts a disabled person a substantial disadvantage in relation to a relevant matter in comparison with a person who is not disabled, there is a duty to take such steps as is reasonable to avoid the disadvantage (s.20(3))
- Where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, there is a duty to take such steps as is reasonable to avoid the disadvantage (s.20(4))
- Where a disabled person would, but for the provision of an auxiliary aid, be put at substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, there is a duty to take such steps as is reasonable to provide the auxiliary aid (s.20(5))
As far as employers are concerned, this is a situation where there is no scope for justification: if there is a failure to make reasonable adjustments by the employer, they will be held liable. However, the employer is not under a duty to make reasonable adjustments if he/she does not know, and could not reasonably be expected to know, that a person has a disability and is likely to be at a substantial disadvantage compared with persons who are not of that disability.
With regards to the cost of any improvements, s.20(7) states clearly that any person who is subject to a duty to make reasonable adjustments is not entitled to require that disabled person to pay the costs of that improvement.