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The key changes:

The Problem is no longer the dog…. The Equality Act 2010 & disability discrimination law Catherine Casserley & Claire McCann. The key changes:. Definition of Disability (section 6, Schedule 1 & Guidance)

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The key changes:

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  1. The Problem is no longer the dog….The Equality Act 2010 & disability discrimination lawCatherine Casserley &Claire McCann

  2. The key changes: • Definition of Disability (section 6, Schedule 1 & Guidance) • Direct Discrimination: now extends to employment, services, education, associations etc (section 13) • Discrimination & harassment based on association & perception (section 13 & section 26(1)) • Comparators (section 23)

  3. More key changes: • Discrimination arising from disability (section 15) • Indirect discrimination (section 19) • Duty to make reasonable adjustments: extent of duty & knowledge requirement • Pre-employment enquiries (section 60)

  4. Meaning of “disability” • Section 6 • “Substantial” now given statutory meaning: “more than minor or trivial” (s.212) • Schedule 1: no list of “capacities” but see Guidance on “matters to be taken into account” • “Likely” as per Boyle v SCA Packaging

  5. Direct Discrimination • Section 13 • “Because of”: association & perception – see Explanatory Notes (para 59) & EHRC Code • “Perceived” disability? Avoiding definition in section 6? • Comparator (section 23): disabled person’s “abilities” – see Aylott v Stockton on Tees BC • Stereotyping

  6. “Arising from” • Section 15 • “Arising in consequence of….”: Broad scope? See Murphy v (1) Slough BC & (2) Governing Body of Langley Wood School • No comparator: “unfavourable” treatment • Knowledge of disability (but not of effects) • Justification defence = legitimate aim & proportionality: relevance of reasonable adjustments?

  7. Indirect Discrimination • Section 19 • Overlap? Consider anticipatory situations affecting groups of disabled people • No knowledge of disability required • Comparison exercise (section 23): “abilities” not imported into material circumstances

  8. Reasonable Adjustments • Section 20 (duty) & s.21 (contravention) • 3 requirements: (1) PCP (2) Physical features & (3) Auxiliary aids • “Whether it is reasonable”: Regulations under section 22 (none yet) [s.18B of DDA] • Extent of duty: more limited obligations to potential applicants? • Knowledge of disability & effects: distinction between potential applicants, applicants & employees?

  9. Pre-employment Enquiries • Section 60 • Employers can only ask questions about health/disability which are “necessary for the purposes of….” • Assessments (eg: selection test) • Intrinsic functions • Monitoring • Positive action • Occupational requirement

  10. Pre-employmentEnquiries • EHRC has power of enforcement • No individual claim but…. • Drawing inferences of discrimination • Explanatory Notes has EGs (para 202) • No guidance in Draft Code

  11. The Problem is no longer the dog….The Equality Act 2010 & disability discrimination lawCatherine Casserley &Claire McCann

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