Equality-Disability
EQUALITY ACT 2010 – Disability.
Under the Act disability is one of the “protected characteristics” and disabled people must not be treated less favourably than others because they are disabled. This applies to businesses providing goods, facilities and services as well as to all employers.
Note the types of discrimination listed in the Introduction to this section all of which apply to disabilities.
A person is defined as having a disability for the purposes of discrimination law if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day to day activities. The Government has issued detailed guidance on what should be taken into account when deciding whether someone has a disability and has stated that "normal day to day activities" will include work-related activities such as interacting with colleagues, following instructions and using computers.
The Equality Act 2010 (Disability) Regulations 2010 provide that addiction to alcohol, nicotine or any other substance is not to be treated as an impairment for the purposes of the Act unless that addiction was originally the result of administration of medically prescribed drugs or other medical treatment.
Also not to be treated as impairments for the purposes of the Act are:
• a tendency to set fires
• a tendency to steal
• a tendency to physical or sexual abuse of other persons
• exhibitionism
• voyeurism
• seasonal allergic rhinitis (e.g.hay fever) unless it aggravates the effect of any other condition
• severe disfigurement if it consists of (a) a tattoo (which has not been removed) or (b) a piercing of the body for decorative or other non-medical purposes, including any object attached through the piercing for such purposes.
The Regulations specifically provide that persons certified as blind, sight impaired or partially sighted by a consultant ophthalmologist are deemed to have a disability.
A person discriminates against a disabled person if he treats that disabled person unfavourably because of something arising in consequence of the disability and cannot show that the treatment is a proportionate means of achieving a legitimate aim.
It will not be discriminatory if he did not know and could not reasonably have been expected to know of the person’s disability.
Different situations can arise, of course, in cases involving service providers and those involving employers.
Service providers
A service provider discriminates against a disabled person if he fails to comply with his duty to make reasonable adjustments to ensure disabled people are not placed at a substantial disadvantage when accessing services. This entails a responsibility to anticipate the needs of disabled customers.
There is also a duty to take reasonable steps to provide an auxiliary aid where a disabled person is put at a substantial disadvantage compared to non-disabled people.
The Act clarifies the three requirements for making reasonable adjustments and the point at which the duty to make reasonable adjustments is triggered.
Care should be taken to ensure compliance with the code of conduct for service providers. Remember that the duty to make reasonable adjustments is a continuing process and should be constantly reviewed.
The service provider is responsible for the actions of employees and representatives. Adequate and regular training of staff is most important.
Employers
The Act imposes a duty on employers to make reasonable adjustments for disabled staff to help them overcome disadvantage resulting from an impairment. Failure to meet that duty would be discriminatory unless the employer did not know and could not reasonably have been expected to know of the employee’s disability.
The Act limits the circumstances in which enquiries about disability and health can be made in the recruitment process. Before a job offer is made to an individual the employer can only ask health related questions to help to:
• decide whether reasonable adjustments need to be made for the person to the selection process.
• decide whether an applicant can carry out a function intrinsic to the work concerned.
• monitor diversity among people making applications for jobs.
• take positive action to assist disabled people.
• obtain assurance that a candidate has a particular disability where the job genuinely requires the jobholder to have that disability.
In cases of physical disability the condition, effects and prognosis can usually be assessed by the employer based on medical evidence. This is not necessarily the case, however, in regard to mental impairment.
The Employment Appeal Tribunal (EAT) has ruled that cases involving workers who claim disability discrimination on account of depression should not have to be assessed only on a strict medical diagnosis but initially on the effect their condition has on their work and other normal day to day activities on a long term basis.
The EAT ruling states “There are indeed sometimes cases where identifying the nature of the impairment from which a claimant may be suffering involves difficult medical questions; and we agree that in many or most such cases it will be easier- and is entirely legitimate- for the tribunal to park that issue and to ask first whether the claimant’s ability to carry out normal day-to-day activities has been adversely affected – one might indeed say “impaired”- on a long-term basis.”
If an employee appears to be suffering from depression, anxiety, stress etc. great care must be taken to assess whether that employee’s condition could be a mental impairment which has a substantial and adverse effect on his ability to carry out normal day-to-day activities on a long term basis. If it is then any action that could be discriminatory must be avoided.
The meaning of impairment is not defined by statute but certain “prescribed conditions” such as some addictions or personality disorders are specifically excluded (see above). It will be for the tribunals to determine whether or not a particular impairment has an adverse long-term effect on day-to-day activities.
The legislation provides that “where impairment ceases to have a substantial effect on a person’s ability to carry out normal day to day activities, it is to be treated as continuing to have that effect if the effect is likely to recur.” The EAT has ruled that “---(an employee) “could, if the medical evidence supported the diagnosis of a condition producing recurrent symptomatic episodes, properly claim to be disabled throughout the period: even if each individual episode were too short for its adverse effects -------- to be regarded as “long-term” -----(provided (the employee) could show that the effects were “likely” to recur) “
A long-term effect is if
(a) it has lasted at least 12 months,
(b) the period for which it lasts is likely to be at least 12 months; or
(c) it is likely to last for the rest of the life of the person effected.
It should be noted that these statutory “factors” are for the purpose of helping to determine if the employee could have a disability within the meaning of discrimination law. They do not necessarily determine what constitutes long-term absence that might give rise to termination of employment.(As to which see the website under “Absence - Long-term sickness”)
For the purpose of assessing whether the employee’s condition might constitute a disability very specific questions should be put to the GP and, if appropriate, to a specialist consultant.
For example, the GP should be asked about the effect of the employee’s condition on his ability to carry out normal day-to-day activities and also to provide a long-term prognosis covering the factors (a), (b) and (c) above.
In the event of the employee’s condition being likely to constitute a disability the medical evidence should also indicate any adjustments that could be made by the employer to enable the employee to continue or return to work.
Armed with all the medical and other evidence the employer should then take appropriate professional advice before embarking on any action that might be detrimental to the employee and could constitute disability discrimination.
All PBS information sheets are designed to provide the detail you need to implement best business and employment practices. They are not a detailed commentary on the current law and where advice is needed in a specific case you should contact PBS for expert consultation.
Equality/disability