Employment law

The Equality Act 2010 provides protection for disabled job applicants and employees.

Not only is an employer liable for its own discriminatory acts but also for any discrimination carried out by its staff.

The definition of a disability is a broad one.

A person is defined as having a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day–to-day activities. There is no exhaustive list of conditions that amount to impairments and, although medical advice may be sought on the issue, ultimately it is the employer’s responsibility to make a judgement about whether a condition constitutes a disability. Often mental health conditions are more difficult to evaluate but depression, schizophrenia, bipolar disorder, obsessive compulsive disorders, depression and personality disorders constitute disabilities. Anxiety and stress may constitute disabilities if they have a substantial and long term effect. In considering whether the condition is “substantial and adverse” the focus will be on what the worker cannot do rather than what they can do. Moreover, day-to-day activities are broader than work-related activities and include domestic tasks. The condition must be long term, meaning that it has lasted, or is likely to last, for 12 months or more. This means that individuals who were disabled in the past but are no longer disabled will be protected if the condition lasted at least 12 months or recurred during a period of 12 months.

Offences under the Equalities Act

Direct discrimination is where an employer treats a disabled person less favourably than it would treat a person who does not have that particular disability. For example if an employer makes stereotypical assumptions about a particular disability or its effects this is likely to constitute direct discrimination as the employer would not make such assumptions about a non-disabled person. The comparator will be someone (real or hypothetical) without the particular disability whose circumstances are similar to the disabled person. It is not essential to find a comparator whose circumstances are precisely the same as the disabled employee’s as long as their circumstances are not significantly different. An employer cannot justify direct discrimination if an employee establishes their case in a court or Tribunal.
A provision, criterion or practice may apparently be neutral but may affect one group more than others. An example affecting disabled employees might be an attendance policy which the individual finds more difficult to comply with. The appropriate comparator will be the same as direct discrimination cases but an employer may be able to justify indirect discrimination by showing that the treatment complained of is a proportionate way of achieving a legitimate aim.
There is no requirement for a comparator in the case of discrimination arising from a disability. Discrimination arising from a disability may be justified if the treatment is a proportionate way of achieving a legitimate aim. Where a reasonable adjustment could have been made to avoid or mitigate the unfavourable treatment, it is likely to be difficult for an employer to justify.

The duty to make reasonable adjustments applies if:

  • a provision, criterion or practice applied by or on behalf of an employer places a disabled person at a substantial disadvantage compared with a non-disabled person;
  • any physical feature(s) of premises – occupied by the employer places a disabled person at substantial disadvantage compared with a non-disabled person; or
  • the provision of an auxiliary aid will prevent a disabled person being put at a substantial disadvantage in comparison with someone who is not disabled.

An employer cannot justify a failure to comply with the duty to make reasonable adjustments and the only defence, where is it alleged that the employer has breached the duty, is that it was not reasonable to comply with the duty. The duty to make adjustments only arises if an employer knows or could reasonably be expected to know that a person is disabled and that the employer knows or could reasonably expected to know that the effect of this is that the person is likely to be placed at a substantial disadvantage. An employer cannot claim that it did not know about a job applicant or worker’s disability if anyone in the employer’s organisation had knowledge. If there is any uncertainty about whether a worker is suffering from any condition that might constitute a disability, it will be sensible to obtain medical advice as soon as possible to ensure compliance with the duty to make reasonable adjustments.

Victimisation occurs when a worker is subjected to less favourable treatment than others whose circumstances are the same as theirs because they have done one or more of the following protected acts:

  • Brought proceedings against their employer or any other worker;
  • Given evidence or information in connection with proceedings brought by another person under the Equality Act 2010;
  • Taken any other action in connection with the Equality Act 2010; or
  • Made any allegation against their employer or any other worker of a contravention of the Equality Act 2010.

Harassment occurs where an employer, for a reason which relates to a disability, subjects a person to unwanted conduct which has the purpose of or effect of:

  • Violating the person’s dignity; or
  • Creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
There are some conditions which are excluded from protection such as kleptomania and a tendency to physical or sexual abuse of others. Addiction is also excluded unless the addiction is the consequence of taking prescribed drugs or medical treatment. However an employee suffering from an impairment which is the result of an excluded condition such as depression or liver damage may have a claim if the less favourable treatment is on account of the impairment rather than the excluded condition.

    Discrimination that occurs due to an association with a disabled person or a perception by the employer or another worker of an individual’s disability, whether the perception is correct or not, is also unlawful.

       

      Other legal obligations

      Employers have a general duty to protect the health and safety of their workers and others affected by their activities under the Health and Safety at Work Act and other regulations as well as a general duty of care. Breaches of health and safety duties may bring criminal prosecutions in respect of statutory offences as well as claims for damages. Negligent breaches of health and safety will give rise to civil liability if physical or mental injury arises.

      There are also a number of other possible related claims based on the employment relationship including:

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