Post on 15-Dec-2014
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Marie Walsh Winston Solicitors LLP 112 Street Lane Roundhay Leeds
Disability Discrimination
Summary
Eligibility
Direct discrimination
Discrimination arising from disability
Indirect discrimination
Victimisation and harassment
Reasonable adjustments
Definition - disability
Equality Act 2010 – “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” (Section 6 (EA 2010))
Four key questions: 1
1. Is there a physical or mental impairment?
Identify the impairment
Medical advice
Beware of deemed disabilities
Four key questions: 2
2. Is there an affect on the employees ability to carry out normal day-to-day activities?
Activities must be normal, e.g. shopping, reading and writing, getting dressed etc
Effects on ability at work?
Personal statement?
Four key questions: 3
3. Is the affect substantial?
More than minor or trivial
Likely to reoccur
Progressive condition
Medical advice
Four key questions: 4
4. Is the affect long term?
Lasted at least 12 months or
Likely to last 12 months or
Likely to last for the rest of their life
Eligibility
Day 1 rights
Advertisements
Application to termination
Unlimited compensation
Injury to feelings
Direct discrimination
“Because of disability, a person (A) treats another (B) less favourably than A treats or would treat others”
(Section 13(1) EA 2010)
Discrimination arising from disability
A treats B unfavourably because of something arising in consequence of B’s disability; and
A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(Section 15(1) EA 2010)
Indirect discrimination
A applies to B a provision, criterion or practice (PCP)
B has a disability
A applies (or would apply) that PCP to a person who does not have B’s disability
The PCP puts (or would put) those with B’s disability at a particular disadvantage when compared to other persons.
The PCP puts (or would put) B at that disadvantage
A cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim
(Sections 6 and 19 EA 2010)
Victimisation
A subjects B to a detriment because either:
B has done a protected act; or
A believes that B has done or may do a protected act
(Section 27(2) EA 2010)
Harassment
1. A engages in unwanted conduct related to disability;
2. The conduct has the purpose or affect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
Harassment (cont’d)
In deciding whether conduct should be regarded as having the required affect, the following must be taken into account:
1. B’s perception
2. The other circumstances of the case
3. Whether it is reasonable for that conduct to have that affect.
(Section 26(4) EA 2010)
Reasonable adjustments
The Equality Act imposes a duty on employers to make reasonable adjustments.
The duty can arise where a disabled person is placed at a substantial disadvantage by reason of:
1. An employer’s provision, criterion or practice (PCP)
2. A physical feature of the employer’s premises
3. An employer’s failure to provide an auxiliary aid
Questions?
? ?
Winston Solicitors - contact details
Telephone: 0113 320 5000
Website: www.winstonsolicitors.co.uk
email: maw@winstonsolicitors.co.uk
LinkedIn: www.linkedin.com/in/mariewalshsolicitor
Twitter: @MarieWinstonLLP
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