As noted in a previous newsletter blog post the substance of previous law making it unlawful to discriminate against a person in the employment field because of disability remains generally unchanged by the Equality Act 2010. However various detailed changes are probably more significant if the “protected characteristic” is disability than if it is one of the other eight protected characteristics.
Firstly, “comparators”. As a matter of commonsense, “discrimination” involves making comparisons. In 2008 the House of Lords identified a particular problem in selecting the appropriate person with whom a person suffering from a disability should be compared for the purposes of deciding whether there had been unlawful discrimination. Obviously the comparison should be with a fit person, but which fit person? In simple terms, in the employment field, if a person was unable to come to work because of a disability and was dismissed for non-attendance, should his/her position be compared with (i) that of a fit person who, being fit, would not have been absent from work (and so would not have been dismissed) or should his/her position be compared with (ii) that of a fit person who was dismissed for non-attendance? If it were (i) the disabled person would have been discriminated against; if it were (ii) there would have been no discrimination as the disabled person would have been treated in exactly the same way as the fit person.
Those interested in the detail may like to look at the judgment in London Borough of Lewisham v Malcolm HL 2008 but the important point for present purposes is that the Equality Act 2010 simply sweeps away the problem. The position from 1 October 2010 is simply that “A person (A) discriminates against a disabled person (B) if (a) A treats B unfavourably 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 result is a special category of “disability-related discrimination”, essentially unjustified less favourable treatment for a reason which relates to a person’s disability with no requirement for a comparator.
Thus it is now clear that in the above example the disabled person would, all else being equal, win a disability discrimination claim under the Equality Act 2010.
Secondly, the meaning of “disability”. In general the meaning of “disability” for Equality Act 2010 purposes is very similar to that used previously – it means a physical or mental impairment which “has a substantial and long-term adverse effect” on a person’s “ability to carry out normal day to day activities”. There are a couple of minor changes to the definition, one for the benefit of cancer sufferers and the other concerning what is meant by “normal day to day activities” but these are unlikely to make much practical difference. A change which will make a practical difference, albeit perhaps not in very many cases, is that a child aged under 6 will qualify as suffering from a disability regardless of whether their disability affects their normal day to day activities, provided of course that they satisfy the other conditions required to qualify – this is likely to be particularly relevant in the context of alleged “associative discrimination” against an employee who is a carer of a small child (as to which see the earlier newsletter blog post).
Thirdly, pre-employment health enquiries are generally banned as from 1 October 2010. This point is covered in more detail in the following blog post concerning pre-employment health questions.
Fourthly, indirect discrimination applies in disability cases from 1 October 2010. In practice it should be generally possible for an employer to avoid liability if he makes an appropriate reasonable adjustment once he has become aware of the employee’s disability.
This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.
