It covers the following:
The development of laws against discrimination in the UK since the 1960s has been piecemeal, resulting in numerous Acts of Parliament and sets of regulations. The first piece of legislation dealing directly with disability discrimination, the Disability Discrimination Act 1995 (DDA) was then subject to significant amendments over the following 12 or so years, and case law has also had a great impact on how the law works. The DDA is discussed in Mind’s Legal briefing: Disability discrimination, which sets out the law up to and including 30 September 2010.
The need to clarify and consolidate discrimination law became greater and the Government spent considerable time preparing the Equality Bill to pull together all strands of discrimination law. The Equality Act 2010 came on to the statute books in April, in the last few weeks before the general election in May 2010. This briefing sets out the main provisions of the Equality Act 2010 (EqA) and focuses on the way in which the law on disability discrimination applies in England and Wales with effect from 1 October 2010. Please refer to the previous Legal briefing: Disability discrimination for any discrimination issues that occurred before this date.
The EqA prohibits discrimination on the basis of any “protected characteristic” set out in the Act. In alphabetical order, these cover:
The ways that someone would show that discrimination took place apply across each of the protected characteristics, although there are some exceptions and adaptations. In particular, the EqA recognises the need for positive action and that more favourable provisions may need to be put in place in relation to the protected characteristic of disability.
The EqA provides protection against discrimination that may arise at work (for employees and workers, but currently not for volunteers except in very limited respects) in the provision of services and public functions, premises and in education as well as in dealings with associations. It does so by making discrimination unlawful in a number of ways, and by providing legal remedies to individuals who experience discrimination.
As under the DDA, the starting point is the concept of disability as defined in s. 6(1) and (2) EqA. Generally an individual seeking protection must show that he or she has a disability (although some interesting points arise in relation to direct discrimination, see below). The key elements in the definition remain as before:
(a) The individual has a physical or mental impairment; and
(b) That impairment has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities.
Building on interpretation of the DDA, an effect is substantial where it is more than minor or trivial (but not necessarily much more than that).
Long term is defined in Schedule 1 and catches an effect that has lasted for at least 12 months, or is likely to last at least 12 months or for the rest of a person’s life. The definition also acknowledges that mental health conditions in particular can fluctuate over time, by making clear that if a person is no longer experiencing significant adverse effects then he or she may still be classed as having a disability if there is evidence that the effect is likely to recur (that the effect could well happen again).
Also, where someone is being helped to get on with day-to-day activities by taking medication or because they are having some other treatment, they are still to be treated as having a disability if there is evidence that they could well be affected in a significant way once again if they stop taking the medication or if they were no longer having the treatment.
The detail set out above builds upon our experience of living with the DDA. The EqA has however made one difference, particularly relevant to those with a mental health disability, in that it will no longer be necessary to show that the adverse effects arising from the impairment impact on any particular capacity – such as memory or the ability to concentrate. This was the case under the DDA and hopefully the change will make it slightly easier for someone to show that a mental health condition is a disability, by explaining the way in which the effects impact on everyday life without also needing to illustrate that any specific capacity is affected.
Guidance is being drafted to give examples of what may and may not be a disability and this will be published in due course by the Government's Office for Disability Issues. The guidance issued previously under the DDA is being used as a starting point, and it is hoped that there will be an increase in the number of examples of mental health conditions and their effect. Under s.6(5) EqA, courts and tribunals will be required to have regard to this guidance in deciding whether someone has a disability.
The circumstances in which someone can experience discrimination are wide and varied and in order to reflect this the legislation sets out various different ways in which discrimination can arise. Together the wrongful acts are referred to as “prohibited conduct”. Employers and service providers and other organisations are of course expected not to allow "prohibited conduct" to take place, and may face legal claims from anyone who feels that they have been discriminated against. Set out below are the different aspects of prohibited conduct as they apply in relation to disability (and please note that there are some variations for different types of protected characteristic).
The DDA made it unlawful to allow poor treatment "on grounds of disability". This has been reworked: a person such as an employer or service provider (A) discriminates against B in situations where A treats B less favourably than others in a similar situation and that this is because of a disability. In order to show that there has been discrimination, B needs to show a link between disability and the way he or she was treated by A. In some cases there may be no evidence that A has actually treated someone else differently, but B can still challenge treatment by trying to show how A would have acted towards another person in that type of situation.
The EqA makes clear that someone who does not have a disability cannot bring a claim that he or she has been treated less favourably than a disabled person. This, of course, is recognition that in some instances disabled people may need to be treated in a more advantageous way, for example, by an employer.
The explanatory notes to the EqA make clear that this type of discrimination is intended to be wide enough to allow someone (B) to bring a claim about less favourable treatment because of disability, even if B does not have a disability. This should enable, for example, the non-disabled parent of a disabled child to challenge an employer or service provider over less favourable treatment because of the child’s disability (based on the parent’s association with his or her disabled child) (EBR Attridge Law LLP v Coleman [2010] ICR 242).
The section may go wider still as it has in other types of discrimination claim (specifically those involving discrimination on the basis of sexual orientation). Someone may disclose to his employer that he has had depression (even though this may not in fact be serious or long-term enough to be a disability). The employer then assumes that the employee has a disability for the purposes of the EqA but goes on to treat him less favourably than others. The employee may be able to use this section to challenge the discriminatory treatment even if his depression is later judged not to be a disability, because the employer had been under the impression that it was a disability. This point is one that would need to be clarified by the courts.
Direct discrimination has until now been regarded as very difficult to prove and it will be interesting to see whether the new law will provide better protection. Where there is evidence that this type of discrimination has taken place, the discriminator will be held responsible and will have no opportunity to try to justify why it acted that way.
This category is intended to widen the situations that could lead to a claim of discrimination by making it unlawful for a person (A) – possibly again an employer or service provider – to treat another person (B) unfavourably where this happens because of something arising in consequence of B’s disability. There is no need for B to compare himself with anyone else. He would be able to win a claim if he can show that he was treated unfavourably and show that this was linked to his disability.
This is a new form of wording and is intended to be wide-reaching. It aims to clarify how the law is intended to work if there is discriminatory treatment linked to disability, following a disappointing House of Lords decision in 2008 (Lewisham v Malcolm [2008] UKHL 43). It should have a positive effect on the way in which an employer treats absence from work connected with a disability (or the way in which a service provider provides a particular service). The well-known example is that of a restaurant owner who does not allow customers to bring dogs onto the premises. This would of course prevent someone who has a disability and uses a guide dog or assistance dog, from bringing that dog onto the premises. This may be discriminatory – the disabled dog-owner is being treated unfavourably for a reason that is a consequence of his disability.
However, as this type of discrimination is potentially very wide, the alleged discriminator is entitled to try to justify its actions by showing there is a good reason (referred to in the legislation as a “proportionate means of achieving a legitimate aim”). In order to succeed, the restaurant owner would need to show that it had first looked at ways of making reasonable adjustments.
It is also important to note that an employer or service provider would not be held responsible for discrimination under this section if he or she did not know that B had a disability. Sometimes, as under the DDA, there will be information that indicates that B has or may have a disability and this can’t then be ignored. The issue for B is whether to consider disclosing a disability in order to gain a better chance of ensuring that the he is treated appropriately. Perhaps this is something that will be more important in some cases than in others – such as employment situations, and perhaps also when someone deals regularly with a service provider such as a bank or housing association.
For the first time under UK disability discrimination legislation, a disabled person can now argue that a practice or arrangement which seems at first glance to be neutral (and not intended to discriminate) in fact puts the disabled person at a particular disadvantage when compared with another person or group (or that it would do so if it were allowed to continue). There is no doubt that this will catch some situations similar to those that “arise from disability” under s.15.
However, for indirect discrimination it does not matter whether an employer or service provider knows about any particular person’s disability – they need to be thinking ahead in relation to the impact that practices and arrangements may have on disabled people (as well as on other groups with a different protected characteristic). The difficult thing with this type of claim is likely to be finding another group of people to compare with.
The alleged discriminator will be able to defend his or her actions by arguing that the approach is justifiable: that it is a proportionate means of achieving a legitimate aim.
Under the DDA the law recognised a need to help disabled people that may not apply in other areas, by making adjustments to help them. The starting point here is to identify whether there is a practice or arrangement that is putting a disabled person at a substantial disadvantage when compared with a non-disabled person. If this is the case, then the person seeking to continue with that practice or arrangement is required to make changes to the extent that it is reasonable which would help a disabled person to overcome that substantial disadvantage. The duty also extends to ensuring that physical features that put a disabled person at a disadvantage are dealt with and, if auxiliary aids are needed to assist the disabled person, that they should be provided.
The rules in this area apply slightly differently depending on whether the concerns arise in a work context or when providing services.
An employer should look at all adjustments that may help. These may include:
The employee does not need to come up with suggestions, but it will help to do so, and the employer must consider any reasonable adjustments that the employee proposes. The employer cannot require the disabled person to contribute to the cost of adjustments, but grants and other funding will often be available to an employer.
What is reasonable for the employer will be judged according to the following factors:
The duty is a positive one and employers have been expected to show that they have paid careful attention to meeting it. However, the duty applies only where the employer has some knowledge that an employee (or job applicant) has a disability.
It is also possible for a disabled person to bring a claim on the basis that he or she has been subject to harassment usually where the circumstances indicate a more aggravated form of direct discrimination. The disabled person would need to show that the alleged discriminator had acted in a way that violates his or her dignity, or in a way that creates an environment that is intimidating, degrading or humiliating. Employers are under a particular duty to protect employees from harassment by third parties (s.40 EqA).
Someone who feels that he or she has been victimised because of disability, will be able to bring a victimisation claim (and in practice this can often affect the amount of damages that a court or tribunal will award). Victimisation occurs where someone suffers a detriment (is placed at a disadvantage) after making an allegation of discrimination or supporting someone else who has been discriminated against.
There are new provisions in s.60 EqA that are particularly helpful to people with disabilities when applying for jobs. There has been a lot of concern about the common practice of asking health questions as part and parcel of a job application process. Potential job applicants who have experienced mental health problems can be understandably concerned about how answers to health questions would be interpreted by employers.
The new provisions make clear that it is not lawful for an employer to ask health questions in the recruitment process before a job offer is made. It is still relevant for an employer to ask these questions after the offer, and so the practice of job offers being conditional on references and health assessments will continue (and so the possibility of claims should offers be withdrawn remains).
Now, in the earlier stages in the process, a disabled job applicant can expect to be treated in the same way as other applicants. Hopefully this will ensure that applications are treated on merit alone unaffected by hidden prejudices or stereotypical assumptions. It is not possible for an individual to bring a claim against a potential employer simply because it asks these questions (only the Equality and Human Rights Commission is permitted to do so) but if questions have been asked about health at interview and the person does not get the job, a court or tribunal will be expected to look very carefully at the employer’s actions. The employer will be required to prove that the decision not to appoint was appropriate, and not linked to the applicant’s disability. This should make it easier for an unsuccessful job applicant to win a claim under s.13 or s.15 EqA.
In certain circumstances it will still be possible to ask questions about health, particularly to ask whether a candidate may need to have reasonable adjustments made in relation to the job interview. An employer is also allowed to ask whether an applicant would have the ability to do certain tasks if these are regarded as key elements of the job being applied for. An employer would still be under limitations in asking such questions, particularly because any assessment about someone’s ability to do a particular task would need to take account of whether reasonable adjustments could be made that would help the applicant.
Part 5 of the EqA sets out the duties owed to employees, workers, partners, barristers and office-holders by the organisations they work for. Similar rules apply to those who provide employment services, such as recruitment agencies. These organisations must not discriminate in the way they offer employment or work, in access to benefits or services, or in the way they bring working arrangements to an end and must ensure that the individual is not placed at a disadvantage in any other way that amounts to discrimination. Any individual who feels that their employer or an organisation that they work for has discriminated in any of the ways discussed above will be able to bring a claim in the Employment Tribunal. Details are available on the website www.employmenttribunals.gov.uk
Volunteers are generally not protected from discrimination although there may be an argument in specific cases if someone receives a fee or certain other employment benefits, but recent case law has not been helpful in extending protection to volunteers.
It is often advisable to use a discrimination questionnaire (known as a DL56) to help clarify the issues that are causing concern and to seek an initial response from the organisation. Often this helps identify the strength of a claim, and may lead into discussions to try to settle a claim at an early stage.
An application to an Employment Tribunal must be made within three months of the discrimination that is being complained about. This is particularly important if there is a single discriminatory act on a particular date. In many cases there may be a number of linked matters that amount to discrimination and the time limit then runs from the last of these. It is always important to seek legal advice as soon as possible.
An application may sometimes be possible out of time if the Tribunal agrees that in all the circumstances of the case it is just and equitable to do so. However, you must have strong reasons for making a late claim, for example, by showing that the effects of your disability stopped you from being able to do so.
Tribunals will decide if there has been a breach of the law and can award compensation for loss and for injured feelings, as well as making recommendations about how to remedy discriminatory treatment. The injured feelings award has no limit and can be quite significant in serious cases.
Publicly funded assistance can be available to allow an employment specialist solicitor to prepare your case, if you qualify financially. Solicitors specialising in employment law who can take publicly funded cases are listed on the Community Legal Advice (CLA) website (see below). However, publicly funded representation is not available at any hearing. Solicitors will occasionally consider a “conditional fee agreement”, often known as “no win, no fee”, if you have a strong case but cannot afford to pay privately.
You may be able to obtain free legal advice in the following ways:
Anyone providing services to the public or a section of the public, and those who exercise a public function (HMRC for example) are under a duty not to discriminate against any disabled person in the way they operate, and this includes a responsibility to make reasonable adjustments – see Part 3 of the EqA. Part 4 EqA sets out the obligations on certain managers and owners of premises, including landlords and housing associations.
In general, disabled people can expect services to be provided to them on the same terms and to the same standards as other members of the public, and can also expect steps to be taken to help overcome particular difficulties that a particular disabled person may face. This is an ongoing duty and service providers are expected to review the way they provide services and make changes to avoid discriminating. Sometimes, a service-provider may be able to make reasonable alternative arrangements and would not be obliged to take steps that would fundamentally alter the nature of the service or to take a step which it has no power to take. (EqA Schedule 2).
Special provisions apply about the provision of transport, particularly the extent to which the service-provider may be required to alter or remove features of certain vehicles. However, certain buses and taxis may need to be adapted to the needs of disabled people. Discrimination by transport providers in stations, for example treatment by staff in ticket offices, is covered under the EqA.
Any individual who feels that a service-provider has discriminated in any of the ways discussed above will be able to bring a claim in the county court. The claim should be brought within six months starting with the date of the act that is being complained about. Sometimes a claim may be allowed after six months if the judge thinks it is just and equitable to allow this.
The judge can award a successful claimant damages for any loss suffered, including compensation for injured feelings and can make a declaration about the rights of the claimant in the particular circumstances. Such declarations should often have the effect of changing a service-providers way of doing things – because it will want to avoid others in a similar situation from bringing claims.
Publicly funded assistance may be available from solicitors qualified to advise on consumer claims, depending on your financial position. Publicly funded representation might be available for a very high-value claim. However, unless the claim is for more than £5000 it will be treated as a small claim for which publicly funded representation is unavailable. Some solicitors may consider a conditional fee agreement (“no win, no fee”) if the claim is a very strong one, but this is unusual. (Not surprisingly, very few claims were brought under the matching sections of the DDA.)
The provisions that explain how the provisions against disability discrimination apply to schools, colleges and universities are set out in Part 6 EqA. Disabled pupils and students are protected from discrimination in the way they are to be offered admission to schools, colleges and universities and in the way education and other benefits or services are provided, and are also entitled to have reasonable adjustments put in place.
Claims alleging discrimination by a school or education authority in relation to education in schools should be made to the First-tier Tribunal (or the Special Educational Needs Tribunal for Wales) within the period of six months starting with the date of the act that is being complained about. Other claims relating to education are brought in the county court, again within six months.
Insurance comes within the provision of services, and some special provisions are set out in Schedule 3, Part 5 EqA. In particular, an insurer will not be treated as discriminating if it is taking a decision or imposing a condition that is both reasonable and relevant to carrying out its risk assessment. Existing policies cannot be challenged, although issues may arise in relation to renewal of terms.
The Code of Practice issued under the DDA states that blanket assumptions should be avoided. The new draft Code under the EqA (currently out for consultation) also makes clear that insurers cannot rely on untested stereotypes or generalisations or unsound data and so offering insurance to disabled people or people with particular disabilities on additional or adverse terms or conditions is likely to be unlawful.
Time to Challenge is part of a national campaign called Time to Change. We can provide advice and assistance to help someone with a mental impairment to consider that they have been discriminated against. As with the EHRC, we can only provide representation if a case has significance for many people in similar circumstances.
If you need further information, please email legalunit@mind.org.uk.
This legal briefing attempts to outline key concepts introduced into discrimination law by the Equality Act 2010. It is not a substitute for advice in any particular case. As mentioned above, there are some differences in the way in which the law will apply depending on the circumstances and background to the alleged discrimination.
There are still several provisions of the Equality Act which have not been brought into effect such as the duty on public authorities to advance equality of opportunity (s.149 EqA). This is expected to come into force in April 2011. For the time being the current law on that topic, set out in s.49A DDA, will continue to apply.
For further information about the work of Mind's Legal Unit, please refer to the information on this page, available also as a hard copy (request by telephoning 020 8519 2122).
For more detailed advice on any of the issues discussed in this briefing you should take advice from a solicitor specialising in this area of the law.
Details of where to seek specialist advice can be obtained from the following three organisations:
The Law Society
www.lawsociety.org.uk
T: 0870 606 2555
Community Legal Advice
Directgov
T: 0845 345 4345
The Equality and Human Rights Commission also offers a helpline service:
Alternatively, you could contact your local Law Centre or Citizens Advice Bureau, who may be able to help.
Pauline Dall
Mind Legal Unit
15-19 Broadway
Stratford
London E15 4BQ
(Updated December 2010)