Equality Act 2010: What does this mean for your business?
Disability Discrimination
Disability discrimination laws are designed to make sure that disabled people are not discriminated against in their place of work or in other areas such as access to transport, amenities and such like. Until recently discrimination on the grounds of disability was covered by the provisions of the Disability Discrimination Act 1995. However with effect from 1st October 2010 disability discrimination is now covered by the provisions of the Equality Act 2010. Although the Equality Act 2010 is not yet fully enacted, the provisions relating to disability are in force. The introduction of the Equality Act 2010 is not intended to provide radical new concepts of disability discrimination legislation, instead it expands on the original principle of the 1995 Act and is designed to simplify existing concepts and provided further protection.
Purpose
Disability discrimination legislation was not designed to make you, the employer treat a disabled person better than a non-disabled person. Instead the purpose of such legislation is to place the disabled person on the same level as someone who is not disabled and making them as productive in the workplace as any other employee. It is vital that employers follow this legislation otherwise you could find yourselves making a substantial payout for discriminating against people on the grounds of disability.
Disability
A person is regarded as being disabled for the purposes of this Act if he has:-
- A physical or mental impairment, and
- The impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
There are therefore three elements to consider:
- Physical or mental impairment: This would include examples such as amputated limbs, defective limbs from birth or through accident, blindness and deafness. Mental impairment includes learning disabilities and recognised mental illnesses.
- Substantial and long-term adverse effect: An impairment must have lasted for at least 12 months or is likely to last 12 months. Substantial is anything more than minor or trivial.
- Normal day-to-day activities: Under the previous Act there was a list of activities such as mobility, hearing, eye sight, memory etc, however this is no longer the case and this discretion is left to the tribunal to determine what is considered as normal day-to-day activities.
If a person satisfies the above test then they will be considered as disabled for the purposes of the Act and therefore protected by the provisions of the Equality Act 2010.
Types of discrimination
The following types of discrimination apply to all business regardless of the size of the business. A business owner found breaching any of the following is likely to be classed as discriminating against a disabled person.
Direct discrimination: A person discriminates against another if, because of a protected characteristic (the disability), he treats the disabled person less favourably than he would treat others.
Direct discrimination is the most obvious form of discrimination and a disabled person simply needs to show ‘less favourable treatment’.
Discrimination arising from disability: This occurs when an employer discriminates against a disabled person by treating them unfavourably because of something arising in consequence from the disabled person’s disability, and the employer cannot justify that unfavourable treatment. This type of discrimination is also known as ‘reason related’ discrimination, i.e. an employer discriminates because of a reason related to the disability.
An example of this would be an employee regularly taking time off work to attend a hospital because of their disability, and because the employee is taking time off work and attending the hospital regularly the employer then decides to dismiss the disabled person.
For an action of discrimination to be successful on this ground, the disabled person must show a causal link between unfavourable treatment and their disability. Employers do have a defence to this type of discrimination if they can show that he did not know or could not reasonably be expected to know that the employee had a disability.
Indirect discrimination: This occurs when an employer applies a provision, criterion or practice which is discriminatory in relation to the disabled person and this provision criterion or practice puts them at a disadvantage. An example of this would be relocating the workplace to the top floor in a building and the disabled person being a wheel chair user can not access the top floor of the building.
Employer’s obligations
It is the employer’s obligation to make “reasonable adjustments” to assist disabled staff. What is a reasonable adjustment can be a major aspect of dispute. It might be providing specialist equipment or providing certain adjustments in the work place for the disabled person, but it alos takes into account the size and resources of the employer, so that what is reasonable for a big employer may not be the same as for a small business.
An employer also discriminates against a disabled person if he/she/they fail to take into account disability in the recruitment process. Claims can arise and be made by individuals who are not employees. Reasonable steps in this regard may include :-
- Offer your job application forms in alternative formats such as brail, audio or large font format.
- Provide space for a potential employee to give details of any adjustments required should they be called for an interview.
- Allow additional time for suitability assessments.
This duty to make reasonable adjustments continues once you have employed a disabled person. It is also present if you have employed a non-disabled person and at some point they become disabled. Examples of adjustments which may need to be considered are :-
- Adapting the physical features of the work place such as providing a ramp.
- Relocating the office of the employee to an accessible part of the building.
- Allowing the disabled person to work from home.
- Widening of doors.
- Providing specially adapted equipment such as chairs or computer screens.
- Allowing absence during work hours to attend medical treatment sessions.
- Allowing altered working hours.
- Allocating some of the disabled person’s duties to other members of staff.
- Installing stair lifts.
- Providing work surfaces of suitable height.
What is reasonable?
As an employer you are under an obligation to make reasonable adjustments, failing to make an adjustment for a disabled person does not automatically constitute discrimination. This is because the reasonableness of the adjustment would be assessed by a tribunal. In determining whether it would be reasonable for an employer to make an adjustment regard will be given to the following:
- Whether it would be practicable to make the adjustment.
- The financial cost of making the adjustment.
- The size of the employers business.
- The extent of the employer’s financial resources.
It must be noted that reasonable adjustments must be job related. It is not the duty of an employer to provide personal carers or special facilities. The Act does not require an employer to treat a disabled person more favourably than other employees.
Advantages
There are many good reasons to employ disabled people:
- Employing disabled people illustrates you are an equal opportunities employer.
- The adjustments made for a disabled employee can often also help existing employees such as the use of ramps.
- Employing disabled people illustrates corporate responsibility to your customers.
- By making a real effort to assist a disabled employee they will often repay that commitment with great honesty, loyalty and hard work
Implementing the principals of the Equality Act and its requirements promotes good practice and an employer doing so is far less likely to found in breach of equality legislation, the risk of litigation and adverse publicity.
For advice on any aspect of discrimination law or employment law generally, we suggest you get in touch with Darlingtons, Solicitors in London, who kindly provided this article