The Equality Act 2010 (the “Act”), which came into force on 1 October 2010, introduces a new form of disability discrimination, that of “discrimination arising from disability”. This replaces the concept of “disability-related discrimination”, which had been significantly diluted by a 2008 judgment of the House of Lords in the widely reported case, Lewisham v Malcolm.
WHAT IS DISCRIMINATION ARISING FROM DISABILITY?
Section 15 of the Act prohibits an employer (A) from treating an employee (B) unfavourably because of something arising in consequence of B’s disability unless A can show that the treatment is a proportionate means of achieving a legitimate aim.
Discrimination arising from disability can be broken down into the following components:
(i) Unfavourable treatment…
According to the Employment Statutory Code of Practice, produced by the EHRC, “unfavourable treatment” means that a claimant has been “put at a disadvantage” such as being refused a job, denied a work opportunity or dismissed.
Unlike disability-related discrimination, the concept it replaces, it is not necessary for a claimant to establish that they have been treated less favourably than a comparator in order to claim discrimination arising from disability.
(ii)…of a disabled employee (“B”)…
Section 15 of the Act is limited to actions “arising as a consequence of B’s disability” As a result, a claimant must be disabled in order to claim discrimination arising from his/her disability. An employee is disabled if they fall within the scope of the “disability” definition contained in section 6 and Schedule 1 of the Act.
There is no scope for claims of discrimination arising from disability to be based on an person’s association with a disabled person or people’s perception of them as disabled if they have no disability. Claims of that sort would have to brought under a different definition, direct discrimination.
(iii)…by an employer (“A”) who is (or ought to be) aware of B’s disability…
Section 15(2) of the Act provides that there will no discrimination if the relevant employer did not know, and could not reasonably have been expected to know, that the employee was disabled.
However, knowledge of a disability may be imputed to an employer, particularly in cases of long-term sickness. An employer should take reasonable steps and have systems in place to find out if an employee is disabled and/or requires reasonable adjustments to be made to premises or working practices.
(iv)…because of something arising in consequence of B’s disability…
Section 15 of the Act is designed to protect disabled employees from unfavourable treatment due to the knock-on effects of an employee’s disability, rather than the disability itself – for example: lengthy absences from work, frequent doctor’s appointments, increased irritability due to pain etc.
(v)…and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
The onus is on an employer to justify objectively any unfavourable treatment. Unfavourable treatment such as denial of a work opportunity could be justified if the employee is unable to perform an intrinsic function of the job. Dismissal for long term absence could be justified if it was not reasonable to leave the job vacant indefinitely.
Whether an employer has complied with the duty to make reasonable adjustments for disabled employees will be extremely important in determining whether any unfavourable treatment of a disabled employee is a proportionate means of achieving a legitimate aim.
For example, an employer who disciplines a disabled employee for taking too many breaks would face a difficulty in justifying disciplinary action, in circumstances where the employee is taking the breaks to protect or mitigate the effects of their disability, i.e. as a consequence of the disability. An employer would be expected, before proceeding to disciplinary action, to examine first whether a reasonable adjustment could be made to the employee’s working hours or the nature of their work, in order to accommodate the employee’s disability. Otherwise, the discipline would not be proportionate.
PRACTICAL ADVICE FOR EMPLOYERS
In practical terms, it is likely that Tribunals will take a broad view as to what constitutes “unfavourable” treatment, and will focus less on the nature of the treatment and more on the justification for the treatment.
In certain unfortunate circumstances, such as long-term sick absences, it may become necessary for an employer to dismiss an employee as they are no longer capable of performing their duties. Dismissing an employee with a disability on capability grounds due to long-term sick absence, while a potentially fair reason for the purposes of unfair dismissal legislation, will constitute unfavourable treatment unless objectively justified.
As a result, in these circumstances there is a significant risk of a claim of both discrimination arising from disability, based on section 15 of the Act, and a claim of unfair dismissal.
In order to avoid liability in respect of each claim, employers will need to:
(a) establish that the dismissal is fair on capability grounds (and that a fair procedure has been followed) for the purposes of unfair dismissal legislation; and
(b) objectively justify the dismissal, for the purposes of defeating a claim of discrimination arising from disability.
In order to justify objectively the dismissal, the employer would need to establish that reasonable adjustments were considered and appropriately applied and that, notwithstanding these efforts (and having regard to all of the circumstances) dismissal was a proportionate means of achieving a legitimate aim.