Basically
,the Equality Act (EA) s.6(1)2010 defines a disabled person as
someone with a physical or mental impairment that has a
substantial and long-term effect on his ability to carry out normal
day-to-day activities. EA 2010 outlines a number of protected
characteristics which differs from the Disability discrimination
act’s (1995) definition which required that person to show
that an adversely affected day-to-day activity involved a list
of capacities including mobility,speech,hearing or vision or manual
dexterity.
The
DDA provided protection for disabled people only in employment
and related areas while EA2010 is far-reaching by protecting
disabled people in areas such as supply of goods and services.
Disability
is one of the protected characteristics in Chapter 1(4) of the
EA 2010.Prohibited conduct includes direct or indirect
discrimination, harassment and victimisation. Regarding direct
discrimination s13(1) states that (1)A
person (A) discriminates against another (B) if, because of a
protected characteristic, A treats B less favourably than A treats or
would treat others.There must be a direct causal link between the
less favourable treatment and the protected characteristic.In R
v Birmingham City Council exp Equal Opportunities
Commission(1989)1Lord
Goff said there is discrimination if there is less favourable
treatment on grounds of sex.
The
introduction of “because of” to replace the old terminology
“on grounds of” broadens the scope of the law on direct
discrimination by allowing claims to be brought by someone who
is treated less favourably not because of his disability but
because he is associated with someone with a protected
characteristic including disability.
In addition, the use
of the phrase ‘related to’ in s.26(1) gives a broad outlook to
the section.It implies that the section prohibits any unwanted
conduct connected with rather than merely because of a protected
characteristic.In Coleman
v Attridge Law&Stephen Law2it
was held that the claimant had been discriminated against not
because of her own disability but on account of having to
take care of a disabled child.
The
act also outlines a single definition of indirect
discrimination that is applicable to disability. Under the old
law there was no protection against indirect discrimination on
grounds of disability. The act has changed this and in so doing
rectifies a problem arising
from the case of Mayor
and Burgesses of
London
Borough of Lewisham v Malcolm,
[2008]3
which
watered down the test for ‘disability related discrimination to
such an extent that it became impossible to prove that such
discrimination had occurred. In Malcolm the House of Lords held
that the correct comparator would be someone without a mental
disability subletting his flat . This made it virtually
impossible for claimants with a mental disability to bring a
successful claim for discrimination
Disability
is further defined in Schedule 1 ‘Disability: Supplementary
Provision’, ‘Part 1: Determination of Disability. Within the
meaning of the act it is the effects of the impairment rather
than establishing if it is a “clinically recognised”
condition that is decisive. In other words, an illness can be
either the cause or effect of an impairment.
Lindsay J stated in College
of Ripon & York St John v
Hobbs
[2002]
4
that
“an impairment can be something that results from an illness as
opposed to itself being an illness.”
There
is a shift from the medical to the social model of
disability in EA2010 which is an improvement. In J
v DLA Piper UK LLP(2010)5
the court held that the argument that the appellant did not have
an impairment was invalid by rejecting the “medical diagnosis “
test because the requirement to demonstrate a clinically recognised
condition was removed in 2005.
In
order to make a disability claim a person must satisfy the
statutory definition of disability. EA 2010 states that“The
effect of an impairment is long-term if it has lasted at
least12
months, is likely to last at least 12 months or is likely to
last for the rest of the life of the person.”
Where an
impairment is off and on it is treated as having a long-term
effect where the probability of recurring is high. In SCA
Packaging Ltd (appellant) v. Boyle
(respondent)
[2009]6
the court extended the definition of “likely” from “more
likely than not” to “could well happen” and the appeal of
the employer failed. What is essential is the effect and not
the impairment. Where an impairment is off and on it is
treated as having a long-term effect.
Regarding
normal day to day activities ,the” list of capacities”
outlined in DDA schedule 1 para 4(1) one of which must be
affected have been repealed which facilitates flexibility in the
implementation of this part of the test.In
Ekpe v Commissioner of police
of
the Metropolis(2001)7
it was held that an activity need not be normal day-to-day
activity for both sexes to fall within the definition.
s.15
(1) outlines what amounts to discrimination arising from
disability:E+W+SThis
section has no associated Explanatory Notes
(1)A
person (A) discriminates against a disabled person (B) if—
(a)A
treats B unfavorably because of something arising in consequence of
B's disability, and (b)A cannot show that the treatment is a
proportionate means of achieving a legitimate aim. The replacement
of ‘less favourable’ with ‘unfavorable’ has eliminated the
requirement of a comparator which is an improvement on the DDA 95 s3a
approach. This provision has been introduced to reduce the
harm done in London
Borough of Lewisham v Malcolm
[2008]
where the court’s construction of a
comparator effectively rendered the provision useless.
“Substantial”
means more than minor or trivilal.In “Goodwin
v Patent Office(1999)8
Morrison J held that the fact that a person can carry out
activities does not mean that his ability to do them has not
been impaired.
S15(1)(b)
is an objective justification test which enables the
defendant to escape liability for the unfavourable treatment of
the claimant.
A defendant can
escape liability if he proves that the unfavourable treatment
in question is a proportionate means of achieving a legitimate
aim.
The expression ‘proportionate means of achieving a legitimate aim’
represents the objective justification test which may involve
considering and eliminating other alternative measures which would be
less discriminatory before making rules.
It
is not necessary to establish that there was no alternative
to the PCP that was applied but its application has to be
justified in spite of its discriminatory effect. The principle
of proportionality requires the court to consider the
reasonable needs of
the business
in making its decision.
The
test of proportionality was established in Bilka-Kaufhaus
Case
C-170/84 [1986]9
and requires the PCP to be the right solution.
The
notion of detriment is broadly interpreted and does not
require any tangible loss. Depriving a person of a valued
choice is sufficient and there is no need to establish a
causal link between the prohibited conduct and the claimant’s
disability.
s.15(2)EA2010
introduces the requirement of knowledge as a defence where
P can show that he did not know or could not be expected to
know that the claimant is disabled.s15
(1) does not apply if A shows that A did not know, and could not
reasonably have been expected to know, that B had the
disability.However,if an agent of the employer such as a line
manager knows then the defendant cannot escape liability,
Although,
the introduction of knowledge is a positive development, there
is no guarantee that a disabled person will not suffer
discrimination by informing his employers of his disability.
The
EA 2010 introduces a stage where an employer is under a duty
to make reasonable adjustments for disabled persons. This
trigger point is where not doing so would put them at a
substantial disadvantage compared to non-disabled persons if
the adjustments were not made.
s.20.EA2010
makes it obligatory for employers and service providers to
make reasonable adjustments . The duty comprises the following
three requirements:
Firstly,
where a provision, criterion or practice (PCP)of A's puts a disabled
person at a substantial disadvantage in relation to a relevant
matter in comparison with persons who are not disabled, to take such
steps as is reasonable to avoid the disadvantage.
Secondly,
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, it is obligatory for the employer to
take such steps as is reasonable to avoid the disadvantage.
Thirdly,
where a disabled person would but for the provision of an auxiliary
aid, be put at a substantial disadvantage in relation to a relevant
matter in comparison with persons who are not disabled, to take such
steps as is reasonable to provide the auxiliary aid.
PCP
has the same broad meaning as in indirect discrimination(s.19)In
Fareham
College Corporation v Walters (2009)10
it was held that the claimant was unfairly dismissed because
of his disability or sickness and that in order to determine
whether a PCP placed the claimant at a disadvantage it may not
be necessary to identify non-disabled comparators.
Sch.
8 para. 20 EA2010 provides the circumstances under which duty
to make reasonable adjustments is triggered. Whether or not an
adjustment is reasonable cannot be treated in isolation from
the issue of affordability for the employer who could get rid
of the claimant using the expense of making the desired
adjustment as an unreasonable adjustment.
In Cordell
v
Foreign
and Commonwealth Office(2011)11
it was held that as regards the claim
of direct
discrimination the appellant’s non-appointment was not due to
her disability as such but the costs of the adjustments which
it necessitated.
In Melville
v Home office
the issue before the court was
whether the claimant had suffered psychiatric injury arising out
of stress at work handling suicide victims. It held that the
appellant had failed to take reasonable care because
the
system which they had devised for dealing with that risk had not been
implemented in respect of the claimant
Furthermore, s.60
EA2010 attempts to create a level playing field for job
applicants who may have a disability by prohibiting employers
from making pre-employment enquiries about disability and health.
This rule applies not only to questions to applicants but
also questions to referees for those job applicants.
This provision is intended to prevent disabled candidates from being
unfairly screened out at an early stage of the recruitment process.
Another issue is
that the EA provides protection from harassment because of a
disability. s.26 defines such conduct as
(ii)creating
an intimidating, hostile, degrading, humiliating or offensive
environment for the victim because of his disability. Previous
legislation only offered work-related protection.
Certain
medical conditions are exempted from the test of ‘substantial
adverse effect’. These are outlined in EA 2010 Sch. 1 Pt 1 para
6(1) such as Cancer,HIV infection and multiple sclerosis.
Progressive conditions which may initially not have a
substantial adverse effect are also covered in EA 2010 sch.1,Pt
1,para 8(1). Such
conditions as a tendency to set fires or addictions to non–prescribed
substances are specifically excluded from the EA 2010.
In
conclusion, I share the view that the EA 2010 represents a
considerable improvement in the protection to disabled people by
widening the scope of the protection provided to disabled
persons to cover both work-related and non-work related areas
as well as its introduction of the concepts of protected
characteristics ,prohibited conduct, direct and indirect
discrimination. However, the concrete benefits of EA2010 will be
measured by its application in decided cases.
1
R V Birmingham City Council exp Equal
Opportunities Commission(1989) AC 1155
2
Coleman V Attridge Law &Stephen Law-C-303/06
Bibliography
Equality
Act 2010- A Guide to the New Law,Editor-Michael
Duggan,Published by Law Society,London,2010.
Equality
and Discrimination :The New Law,Brian
Doyle,C. Casserley,S. Cheetham,V.Gay &O.Hyans,Jordan
Publishing,Bristol,2010.
Office
for disability issues :
http://odi.dwp.gov.uk/disabled-people-and-legislation/equality-act-2010-and-dda-1995.php
Blackstone’s
Guide to the Equality Act (2010) Wadham.
J. (Ed),
Discrimination
Law: Theory and Context, Text
and
Materials
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Bamforth. N., Malik. M. and
O’Cinneide ,
Sweet& Maxwell Ltd. (2008)
Discrimination
Law: Texts, Cases and Materials, McColgan. A., Hart
Publishing, Oxford and
Portland, Oregon, Second Edition, 2005
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HR
Magazine:
http://www.hrmagazine.co.uk/hro/news/1018514/the-practical-implications-equality
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