Disabled People in Connection With Employment

According to Caroline Gooding, the Disability Discrimination Act (DDA) 1995 was the first British statute ever to address the issue of discrimination against Britain’s disable people. [1] The DDA made it unlawful to discriminate against disabled people in connection with employment, the provision of goods, facilities and services or disposal and management of premises. [2] It also contains provisions regulating the accessibility of public transport services, such as taxis, train and buses. [3] These provisions were supposed to apply by the end of 2004.

DDA Act was found by the disabled people and organizations’ helping them feeble and disappointing. Limitations of the Act were recognized, but on the other hand it was the first declaration in this area to be used as a benefit for disabled people. [4] Other commented that it could be construed as an indication that headway had been made in establishing the extent to which disabled peoples opportunities were restricted by factors extrinsic to their physical and intellectual abilities (Drake, 1999). [5] Major reservations about the DDA was that it did not establish a Commission for disability rights compatible to those safeguarding the interests of women and minority ethnic groups. [6] It was done in accordance with 1999 Disability Right Commission Act and Commission started operation in 2000.

Last year in October United Kingdom brought a wide-range of equality rules. The Equality Act 2010 [7] (EA 2010) is the product of a number of important reviews, all of which concluded that inequality and discrimination are significant problems in the workplace and the legislation is a key driver in resolving them. [8] The general purpose of the EA 2010 is to encourage social mobility within the United Kingdom. Its impact assessment states that it was based on evidence, which proved the need for government intervention to “encourage” and “enable” public authorities to use their procurement activities to further equality objectives. [9] The Act also re-states and amends the United Kingdom’s transposition of certain EU Directives related to equality matters. [10] The Act harmonizes definitions, introduces new types of unlawful discrimination, extends associative and perceptive discrimination to relevant protected characteristics, introduces the concept of positive action, and restricts pre-employment health enquiries and the use of pay secrecy clauses. [11] On the other hand, combined discrimination, equal pay audits and positive action in relation to ‘recruitment and promotion’ are complicated concepts and remain subject to further regulation. [12]

CHAPTER I

DEFINING DISABILITY

The definition of who is protected by the legislation – the definition of disability – is more complex than in relation to gender and race. [13] Stone suggests that concept of disability has been to resolve the issues of distributive justice. This issue is created by presence in the modern world of two distributive systems – one of which distributes on the basis of waged labour and the other on the basis of need. [14] There is a potential conflict between the two systems, since if people can acquire good through the need system they will not need to engage in waged work… This conflict has historically been resolved by the creation of rigid categories of need – the elderly, children, and the disabled – to determine who will be allowed to claim public assistance. Hence disability becomes synonymous with dependence and inability. (Gooding C., 1994,)

According to S1-2 DDA (S.6 and Sch. 1 EA 2010)- person is disabled if he has physical or mental impairment, which has substantial and long term adverse effect on the ability to carry out day-to-day activities and such affect must be long term and substantial. Before going to further with analysis of them, let me first have a look at the common approach that Employment Appeal Tribunal (EAT) adopted in cases. In the case Goodwin v. The Patent Office [15] , Morison J. (p. 307) made two points: that the tribunal had an inquisitorial role and the legislation should be interpreted purposively. However, in more recent cases, Morison J. enthusiasm was nor repeated. The first point was received in the later EAT case of Rugamer [16] , which was upheld by the Court the Appeal as ‘valuable judgment’. [17] The second point was simply ignored by the Court of Appeal, when discussing interpretation. [18]

Medical concept

Moreover, disability is a concept which can be formulated in different ways. [19] Disability is a medical concept, based on mental or physical impairment, which substantially limits functioning. [20] Since the 1960s the medical model has been increasingly challenged by another conceptualisation of disability, known as the ‘social model’. [21]

‘Substantial long-term effect’

It was written by Highmore, S., that “long-term adverse effect” must last or be likely to last for at least 12 months (or, if shorter, the expected remaining lifespan of the person). Whilst we would expect that conditions such as deafness, paraplegia, schizophrenia or multiple sclerosis would qualify as disability, this definition will extend the categories of disability to less obvious conditions, such as asthma or migraine, if the effects in a particular person interfere sufficiently with day-to-day activities. [22]

Reasonable adjustment

The UK House of Lords has referred to the reasonable adjustment duty as catering “for the special needs of disabled people” and even asserted that it “necessarily entails an element of more favourable treatment”. [23]

CHAPTER II

Direct and indirect discrimination

S.149(1)(a) of EA 2010 refers to discrimination (direct or indirect) or any other prohibited conduct against any individual on the basis of one or more of those characteristics. “Any other prohibited conduct” refers to a breach of an equality clause or rule or to a breach of a non-discrimination rule, as set out anywhere in the EA 2010 (see s.149(8) of the EA 2010). [24]

Discrimination by association

Framework Directive 2000/78 [25] describes direct discrimination as arising from treatment on prohibited “grounds” it has been read in the United Kingdom as arising from treatment due to personal characteristics [26] ; the Disability Discrimination Act 1995 [27] and the Disability Discrimination Act 2005 [28] referred throughout to discrimination against a “disabled person”. [29] It is suggested that indirect discrimination by association should be prohibited in the Directive 2000/78, and the declaratory discrimination prohibition should extend to reasonable accommodation and indirect discrimination. [30] “No conclusive answer as to whether discrimination by association is prohibited flows from Article 13 EC and the directives that were adopted under it.” (Coleman [2008] E.C.R. I-5603 A.G. Opinion fn.5.)

According to O’Brien C. (2011), the UK legislature appeared to draw its authority for a personalised DDA from the European Union’s legislative silence on not only the issue of associative discrimination, but also on discrimination on the grounds of past or assumed [31] characteristics. Indeed, the fact that the DDAs proscribed discrimination on the grounds of past disability, [32] and discriminatory advertisements, [33] along with the broader material scope of the DDA [34] and Equality Act 2010 [35] than the employment-centric EU provisions, [36] appeared to place the United Kingdom ahead of the EU equality agenda. [37] This perception contributed to the belief that the Directive ought to set a “minimal” equality standard–tantamount to suggesting “lower than that established nationally”. [38] The precedent in this area of law was Coleman case.

Equality Act 2010

How Act applies The Act is divided into parts, each of which applies differently to different organisations. Part 5 applies to all employers and is likely to be of broadest application to the charity and not-for-profit sectors. The majority of the other parts of the Act have a more specific application. These include: (a) Part 4, which applies to disposals of premises; (b) Part 6, which applies to all education bodies in relation to pupils, students and applicants; and (c) Part 7, which applies to associations in relation to their members, associates and guests. [39]

Other key parts of the Act include those applying to the public sector, in particular Parts 3 and 11. Part 3 makes it unlawful to discriminate against, harass or victimise a person when providing a service to the public or when exercising a public function. Part 11 establishes a general duty for all public authorities and organisations exercising a public function to have “due regard” to the need to eliminate unlawful discrimination, harassment and victimisation, to advance equality of opportunity and to foster good relations between groups when carrying out their functions. [40]

Equality Act main changes

The EA 2010 protects persons who have certain defined characteristics, such as: age, disability, gender, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, and sexual orientation’. [41] They are described under the Act as “protected characteristics”. [42] As it has been pointed out by Talbot A. and Brownsell L., these characteristics are at the core of Act and are defined at length in Part 2. The definitions are broadly consistent with those set out in previous legislation, with only a few minor changes (for example, “gender reassignment” no longer requires a person to be under medical supervision in order to come within the definition). [43]

Disability discrimination

In addition to general changes to discrimination law there are several key changes in the specific area of disability discrimination. In particular, the definition of “disability” no longer requires that an impairment affects one or more of a specified list of capacities (e.g. mobility, manual dexterity, speech etc.). [44] Under the Equality Act 2010, there has to be a physical or mental impairment which has a long-term and substantial adverse effect on a person’s ability to carry out day-to-day activities. [45]

Harassment

The Act includes three types of harassment:

(1) sexual harassment;

(2) harassment caused by treating a person less favourably, because he or she has either submitted to or rejected sexual harassment;

(3) where a person is subjected to unwanted conduct “related to” a protected characteristic, where that conduct has the purpose or effect of creating an intimidating, degrading, humiliating, offensive or hostile environment for the complainant or of violating the complainant’s dignity. [46] According to Talbot A. and Brownsell L., this extends the protection available under previous legislation, as the definition is broad enough to cover harassment based on association or a mistaken perception. [47]

EA 2010 extended protection from harassment by third parties, such as clients or customers, to employees and job applicants. From 2008 protection from third party harassment applied only to sex-related and sexual harassment. Now employers are liable in relation to third party harassment related to age, disability, gender reassignment, race, religion or belief, sex and sexual orientation. Marriage and civil partnership along with pregnancy and maternity are not covered. [48]

As Gilzean S. observes, there is some concern that the EA 2010 has missed the opportunity to streamline the law in this area and instead of abolishing the “three strikes” rule that originated in the amended Sex Discrimination Act 1975, the test has been applied across the characteristics. Some believe that the test is too convoluted and puts unnecessary hurdles in place for claimants. [49] Moreover Gilzean, S. says that, there is a view that the freestanding definition of harassment is wide enough to encompass claims of third-party harassment and the EA 2010 could have put that beyond doubt without imposing the “three strikes” test across the board. [50]

It may be recalled from the previous case law that employees used to be able to bring claims of direct discrimination against employers if they could show that the employer could have reasonably prevented third party harassment from occurring. [51] In the Burton case, the EAT found that events within the banqueting hall were under the control of the assistant managers and, if they had been properly instructed, the appellants would have been withdrawn and not suffered any harassment. However Burton was overruled by the House of Lords in the case of Pearce v Mayfield secondary school Governing body [52] , in which it was held that an employer’s failure to protect employees from harassment by third parties should not be treated as discrimination unless the failure itself can be said to be discriminatory on grounds of sex or race. (Gilzean S., 2011).

The EAT in Gravell v London Borough of Bexley (EAT/0587/06) held that Pearce did not preclude a claimant using the freestanding harassment provisions of the Race Relations Act 1976 to bring a claim against their employer in respect of racial harassment by a third party. [53] Here the EAT doubted that the comments in Pearce regarding direct discrimination claims held good in relation to the new harassment provisions, finding that if the local authority had a policy not to challenge racist comments or behaviour by customers this could be capable of having the effect of “creating an offensive environment” for her. (Gilzean S., 2011). In addition Gilsen S. points out, that it is helpful that the three strikes test in the EA does not require the claimant to show that the employer had any control over the situation (as in Burton case), the requirement of knowledge of harassment on two previous occasions significantly restricts the circumstances in which liability arises. [54]

Under s.40(2) of the EA 2010, an employer will be treated as subjecting an employee to harassment where a third party harasses the employee in the course of his or her employment and the employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so. This will not apply unless the employer knows that the employee has been subjected to harassment by a third party on at least two other occasions, whether or not it is the same third party on each occasion (s.40(3)).

Future will show are the new provisions implemented in the Equality Act 2010 are effective enough to protect employees in the area of third party harassment or further amendments will be required. Now employers will know about there liability in this area. Furthermore it was the first time this area become clear and open in the legislation for all protected characteristics. [55]

Victimisation

Victimisation is prohibited (ss.33(3), (4) of the EA 2010), as is discrimination on the part of any person whose permission is required for the disposal (s.34 of the EA 2010). [56]

Victimisation, which takes place where a person is treated badly because they are taking or considering taking action under the Act or supporting someone else who is doing so, is now a separate category and is no longer treated as a form of direct discrimination. [57] This means that a plaintiff just needs to prove that he/she is being victimised and no longer needs to show, that his/her treatment was less favourable, comparing to the treatment of others. [58]