Last month we provided you with an update in respect of the prohibition on asking pre-employment health questions from 1st October 2010; this is not the only change to the disability discrimination regime that has been brought about by the Equality Act 2010. In fact, two new strands have been introduced: indirect disability discrimination and discrimination “arising from disability”. Further, there are also a few subtle changes that alter the scope of direct discrimination.
The Law Society Gazette noted on 7th October 2010 that employment tribunals could be “submerged” by a surge in cases stemming from the new regime contained in the Equality Act 2010 and that employers would need to have “ultra sensitive radars” to pick up on potential claims.
Indirect disability discrimination
This type of discrimination already applies to other protected characteristics such as age, race, religion or belief and sexual orientation. It has now been extended to cover disability and gender reassignment. Indirect discrimination can occur where a rule, practice or policy is applied equally to all but in fact puts disabled people at an unfair disadvantage compared to non-disabled people. Indirect discrimination can be justified if you can show that it is a “proportionate means of achieving a legitimate aim” i.e. that you acted reasonably in managing your business. A legitimate aim might be any lawful decision you make in running your business and being proportionate essentially means to be fair and reasonable e.g. showing that you looked at less discriminatory alternatives. Employers should be wary of citing reducing costs as a legitimate aim because if this is the sole aim it is unlikely to be unlawful.
Discrimination arising from disability
This is a completely new concept brought about by the Equality Act 2010 and this type of discrimination will occur where a disabled person is treated unfavourably because of something arising in consequence of their disability. As with indirect disability discrimination, there is a defence to discrimination arising from disability by reference to proportionality and legitimate aims.
Direct disability discrimination – perception and association
Direct discrimination occurs when someone is treated less favourably than another person because of a disability they have. Under the new regime, direct discrimination is extended to protect individuals who are treated less favourably because others think they are disabled i.e. they are perceived to be disabled. Additionally, individuals who are treated less favourably because they associate with someone who is disabled are also protected. Hence, an employee no longer necessarily has to be disabled in order to bring a claim for disability discrimination.
The duty to make reasonable adjustments has been retained by the Equality Act 2010 and it is likely that on practical level, this may still be the main focus for employers. Further, if an employer can show that it has complied with that duty, it seems likely that it would also be able to defend claims for indirect discrimination and/or discrimination arising from a disability on the grounds that its treatment of the employee is a proportionate means of achieving a legitimate aim.