The Equality Act 2010
The law relating to disability discrimination is governed by the Equality Act 2010.
The Key Provisions of the Act are that employers:
- Must not treat any employee, worker or job applicant unfavourably for a reason relating to the individual’s disability, unless they can show that the treatment is justified
- Make reasonable adjustments to working arrangements, working practices and premises in order to accommodate the individual needs of a disabled worker
There is also a duty to take positive steps to support an employee who has a disability in order to enable them to remain in employment and perform their job successfully.
Definition of ‘Disability’
Disability is a protected characteristic under the Equality Act 2010. A person has a disability if he/she 'has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day to day activities'.
The effect must be long term therefore the condition should last for or, be reasonably expected to last for 12 months or, more. Therefore, someone who has become disabled suddenly could be protected under the Equality Act 2010. Also, someone who has a terminal illness and is likely to survive less than 12 months is also protected under the Equality Act 2010.
Effects that are not long term would therefore include loss of mobility due to a broken limb that is likely to heal within 12 months and the effects of temporary infections, from which a person would be likely to recover within 12 months.
The impairment must affect normal day-to-day activities therefore; ‘normal’ day to day activities are ones carried out by most people on a fairly regular basis such as lifting and carry a shopping bag or, books. Highly specialised activities such as playing a musical instrument would not fall within this definition. However, bear in mind that someone who is affected in such a specialised way but is also affected in normal day to day activities would be covered by this part of the definition.
Impairment will only be taken to amount to a disability in law if it has a substantial (more than trivial) and adverse affect on one or, more of the following:
- Manual dexterity
- Physical co-ordination
- Ability to lift, carry or, otherwise move everyday objects
- Speech, hearing, eyesight
- Memory or, ability to concentrate, learn or, understand
- Perception of the risk of physical danger
- A person with a severe disfigurement is also classed as disabled under the Equality Act 2010
Types of conditions covered under the Equality Act 2010
- Any physical illness that lasts more than 12 months
- Progressive illnesses, such as Alzheimer’s disease, HIV & AIDS, muscular dystrophy, cancer, multiple sclerosis, ME
- Intermittent conditions, such as rheumatoid arthritis provided that when the condition does occur it has a substantial effect on the individual; the person is protected by the Equality Act 2010 at all times, including periods when the condition is in remission
- Dyslexia, if its effects are substantial
- Learning disabilities and difficulties
- Some stress-related conditions, whether or, not they have been precisely diagnosed, so long as they have a substantial and adverse effect on the individual
Mental Illness and the Equality Act 2010
Mental illness may range from serious long-term illness such as schizophrenia through to depression and some stress-related conditions.
Employees who have, or have had, any type of substantial and long-term mental illness or impairment, whether or not it amounts to a clinically well-recognised mental illness, are protected under the Equality Act 2010.
If an employee has had a condition or, illness in the past which at the time amounted to a disability, he/she retains permanent protection against discrimination for a reasons related to that disability.
Types of conditions not covered under the Act
Conditions that are not covered under the Act include:
- Addiction or, dependency on alcohol, nicotine or drugs (other than prescribed)
- Hay Fever
- Certain mental conditions including tendency to set fires, steal, voyeurism
Although addiction to alcohol and drugs are excluded from the scope of protection under the Act, an individual with such an addiction may become disabled as a consequence of it. For example, someone with an alcohol addiction may develop liver disease as a consequence of persistent heavy drinking and become disabled.
Justification for disability discrimination
Treatment of an employee unfavourably for a reason which relates to disability is capable of justification. However, discriminatory treatment will never be capable of justification unless you have first made all possible reasonable adjustments to assist and support the employee. If there are no reasonable adjustment that would help or, if all reasonable adjustments have already been made, you may be able to justify discriminatory treatment. For example, you may be able to justify dismissal where it has become impossible, extremely difficult or highly impractical for the employee to do their job and there are no adjustments that would improve the situation.
Criteria for an adjustment to be reasonable
When considering whether the reasonable adjustments advised to you by Occupational Health are reasonable and practical for you to implement, it is important to consider;
- The financial cost of the adjustment
- Your resources (budget) and that of the organisation
- How effective the reasonable adjustment may be in helping the employee and having the effect of improving attendance to an acceptable level
- The extent to which making the adjustment would prevent the effect in question
- The extent to which making the adjustment would disrupt any of your operational activities
- The extent to which making the adjustment would disrupt other employees or clients
- The extent to which you have the financial or, other assistance to help you make the adjustment