Discrimination in the workplace

A disability discrimination case can be brought by existing employees, job applicants, workers employed on a contract personally to do work, apprentices and contract workers, eg many agency workers or those working for contracted- out services. There is no minimum qualifying service or hours required for a worker to make a claim.

The Equality Act does not simply protect a small number of people with visible disabilities. It can protect large numbers of people with invisible as well as obvious and visible disabilities. It may also protect those with temporary, but long-term, injuries or ill-health, who would not normally think of themselves or be considered by others as having a disability.

Disability discrimination under the Equality Act 2010.

There are several different forms of disability discrimination under the Equality Act. The following is only a list of issues covered under the act.

Failure to make reasonable adjustments

Direct discrimination

Direct discrimination by association

Direct discrimination due to perceived disability

Discrimination arising from disability

Harassment

Indirect discrimination

Victimisation

Pre-employment disability or health enquiries

Who is “disabled” under the Equality Act 2010?

To gain the protection of the Equality Act, a worker must prove s/he meets the legal definition of disability in the Act.

The legal definition: overview

Section 6(1) of the EqA says:

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

Billy Muir from LBJ consultants suggests the following:

Each element of this definition should be separately considered in the following stages:

1. Is there a physical or mental impairment?

2. Does the impairment have an effect on the worker’s ability to carry out normal day-to-day activities? Is the effect substantial?

3. Is the substantial effect long-term?

Get more information at https://lbjconsultants.co.uk/

CHECKLIST

The wide scope of ‘disability’ covered under the Equality Act 2010

Check list on proving the worker has a disability.

·         Identify the physical or mental impairment. 


·         Is the condition deemed a disability, eg certified visual impairment, HIV 
infection, multiple sclerosis, cancer? 


·         Is it an excluded condition, eg hay fever? 


·         Which of the day-to-day activities are affected? 


·         Is the effect substantial? This only means more than minor or trivial. 


·         If the effect is minor, is it likely to become substantial in the future? ‘Likely’ means ‘it could well happen’. 


·         Is it a condition which is deemed to have substantial adverse effect, ie severe disfigurement? 


·         When considering the adverse effect, focus on what the worker cannot do or can only do with difficulty or tiredness, as opposed to what s/he can do. 


·         Consider the effect on normal activities, not highly-specialised hobbies; Include both work and non-work activities. 


·         If necessary, consider the deemed effect without any medication or aid. 


·         Is the substantial adverse effect long-term (12 months) or recurrent? 


·         Consider what medical evidence is necessary, eg to prove

o   the nature of the impairment


o   the nature and seriousness of the effects

o   when the effects started and how long they are likely to last

o   the deemed effect without medication or aids. 


·         Consider the cost of medical evidence and whether to instruct an expert jointly with the employers. 


Consider the appropriate medical expert: GP, treating consultant, independent consultant.

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