Disability Discrimination

“A person (P) has a disability if (P) has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.

  • No longer necessary to look at “capacities” including mobility, manual dexterity, physical coordination etc

In addition to direct, indirect, victimisation and harassment there are the additional claims of:

  • Discrimination arising from disability; and
  • Failure to make reasonable adjustments
  • s60 ­ unlawful to ask an applicant about health ­ enforceable by EHRC
  • If do ask ­ burden shifts to employer to prove the info was not relied upon
  • Therefore it isn’t a blanket ban ­ can also enquire whether an employee is able to undergo an interview (e.g. wheelchair access for interview/selection)
  • Can ask questions to comply with diversity monitoring; to establish whether an applicant has a disability

Discrimination arising from disability:

  • Disability Related Discrimination now “discrimination arising from disability” (s15)
  • Designed to counter the problems encountered by London Borough of Lewisham v Malcolm HL 2008

– HL said the correct comparator is non-disabled person otherwise in the same circumstances e.g. in sickness cases ­ someone with the same absence record but no disability

  • Under EA ­ (A) discriminates against a disabled person (B) if (A) treats (B) unfavourably “because of something arising in consequence of (B)’s disability“, and (A) cannot objectively justify the treatment
  • If the treatment is because of (B)’s disability, it is direct discrimination
  • S15(2) ­ potential defence where (A) did not and could not reasonably have been expected to know, (B) had the disability
  • Now no reason for a comparator (therefore avoiding Malcolm difficulties)
  • There is now, under the EA, indirect disability discrimination ­ but this is likely to be over-shadowed

Duty to make reasonable adjustments (s20) has three aspects:

  1. Where a provision, criterion or practice (PCP) or physical feature puts a disabled person at a disadvantage compared to a non-disabled person;
  2. The employer must make reasonable adjustments to avoid the disadvantage; and
  3. Where, but for the provision of an auxiliary aid, a disabled person would be at a substantial disadvantage, there is a duty is to take reasonable steps to provide that auxiliary aid.
  • Duty does not apply where employer could not reasonably be expected to know of the disability and that the person will be at a disadvantage
  • Not DD to treat (A) not as favourably as (B) (a disabled person)