The Equality Act 2010 Disability Discrimination

1. The Equality Act 2010 Disability Discrimination Laura Prince

2. Timetable • Enacted 8 April 2010. • The Equality Act 2010 (Commencement No.4, Savings, Consequential, Transitional, Transitory and Incidental Provision and Revocation) Order 2010 brings the majority of the provisions in the Equality Act into force on 1 October 2010 • The socio-economic inequality duty on public authorities (S.1), dual discrimination i.e. claims combining two protected characteristics (S.14), the requirement on private sector employers to publish gender pay gap information (S.78), positive action in recruitment and promotion (S.159), and the single public sector equality duty (Ss.149-157) have not been included.

3. Aims

4. The Protected Characteristics • Age (s.5) • Disability (s.6 and Schedule 1) • Gender reassignment (s.7) • Marriage and civil partnerships (s.8) • Pregnancy and maternity (s.17 and 18) • Race (s.9) • Religion or belief (s.10) • Sex (s.11) • Sexual orientation (s.12)

5. Disability, section 6 • Similar definition to that under the Disability Discrimination Act 1995:- “A person (P) has a disability if- (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities” • Keeps requirement for long-term effect (if it has lasted, or is likely to last at least 12 months) (Schedule 1, paragraph 2(1)) • Does not replicate the list of eight capacities (e.g. Mobility or speech, hearing or eyesight) – According to the explanatory note this should make it easier for some people to demonstrate that they meet the definition of a disabled person.

6. Dual Discrimination • Equality Bill: Assessing the impact of a Multiple Discrimination Provision, identifies 3 forms of multiple discrimination, the one which wasn’t covered by the previous legislation and is now covered is the third:- • “Where the discrimination involves more than one protected characteristic and it is the unique combination of characteristics that results in discrimination in such a way that they are completely inseparable” • E.g. Black woman treated less favourably because she is a black woman – different to way a black man would be treated or a white woman (Bahl v Law Society). • Only dual discrimination covered, not multiple discrimination – hard to see how this is justified. • Remains to be seen if the new coalition government will bring this provision into force.

7. Prohibited Conduct • Direct Discrimination • Indirect Discrimination • Discrimination arising from disability • Duty to make reasonable adjustments • Victimisation • Harassment

8. Direct Discrimination • wording changed from “grounds of” to “because”; the explanatory note says this is not intended to have a different meaning. • Less favourable treatment because of the victim’s association with someone who has that characteristic is covered

9. Discrimination arising from disability • Concept of disability related discrimination repealed. • Replaced by discrimination arising from disability:- • Treating an employee unfavourably because of something arising in consequence of his disability. • Employer must know, or be reasonably expected to have known, that the employee in question has a disability. • Reverses Lewisham v Malcolm • A has to show “unfavourable” rather than “less favourable treatment, the requirement for a comparator has been removed.

10. Indirect discrimination • First real harmonising provision (harmonises law across all strands) • Applies where employer applies a PCP which is discriminatory in relation to a relevant protected characteristic • Reference to persons who share a protected characteristic is defined as a reference to persons with the same disability. • Might be difficult to show group disadvantage in respect of disability; probably easier to rely on discrimination arising from disability provisions. • Possible to objectively justify both indirect discrimination and discrimination arising from a disability (no longer a defence that there was a ‘material and substantial reason for the treatment’); this is because the EA creates a single objective justification test to replace the use of different tests

11. Reasonable Adjustments • Duty to make Reasonable adjustments (s.20) • Only applies to disability discrimination • Difficult to reconcile with Coleman v Attridge Law • Obligations to make reasonable adjustments extends to:- • Physical features of premises • Provision criterion or practice • Auxilliary aids • Cannot make employee pay or contribute to costs of adjustment

12. Recruitment and Health questions • Employer must not ask job applicant questions about health • Before making an offer (conditional or not) • Before including applicant in pool to be offered work • Exceptions • Questions to establish reasonable adjustments to assessment process • Questions to establish if applicant can carry out a function intrinsic to work concerned • Diversity monitoring

13. Positive Action (s.159) • Can treat a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic and B does not. • This only applies if:- • A is as qualified as B to be recruited or promoted • P does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it, and • Taking the action in question is a proportionate means of achieving the aim referred to in subsection 2) (i.e. Overcoming or minimising disadvantage).