Outlook video: Equality Act - disability

XpertHR's head of content Jo Stubbs and group editor David Shepherd discuss changes to the law on disability discrimination that will be brought in by the Equality Act 2010. 

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The questions in full:

The definition of direct disability discrimination currently refers to less favourable treatment of a disabled person on the grounds of his or her disability – has this changed under the Equality Act 2010?
Yes, the Equality Act is phrased in terms of protected characteristics – such as sex and race – and direct discrimination occurs when a person is, or would be, treated less favourably "because of" a protected characteristic – in this case, the protected characteristic of disability. 

What does that mean on a practical level?
The formulation "because of a protected characteristic" is intended to be wide enough to cover discrimination by association, as required by the European Court of Justice (ECJ) in the case of Coleman v Attridge Law and another [2008] IRLR 722 ECJ. Ms Coleman claimed that she had been discriminated against and harassed because of her son’s disability, and the ECJ said that the Equal Treatment Framework Directive (2000/78/EC) does not limit protection to those who are themselves disabled, which the Disability Discrimination Act 1995 clearly does (albeit the Employment Appeal Tribunal construed it to include associative discrimination when the case came before it: EBR Attridge Law LLP and another v Coleman (No.2) [2010] IRLR 10 EAT). So, for example, if an employer were to refuse to employ someone because he or she had a disabled partner or child, that would be discrimination because of the protected characteristic of disability. 

Coleman was one of the cases that had to be taken into account in the Equality Act – London Borough of Lewisham v Malcolm was another. How has the Act dealt with that?
London Borough of Lewisham v Malcolm [2008] IRLR 700 HL was a controversial housing decision whereby the House of Lords held that, when considering disability-related discrimination, the required comparison is with a person who is not disabled but who is otherwise in the same circumstances as the claimant. In this instance, where the individual was a schizophrenic who had sublet his flat, causing the council to seek possession of it, the correct comparator was deemed to be someone without schizophrenia who had also sublet his flat (and in relation to whom the council would also have sought to repossess the flat). This made it practically impossible for employees to succeed with this type of claim. The Equality Act introduces a new form of disability discrimination in response to this – discrimination "arising from" disability. 

Does this new form require a comparator?
No, it dispenses with the need for a comparator. It simply requires that the claimant has been treated "unfavourably because of something arising in consequence" of his or her disability. The employer can justify this type of discrimination, but the justification test is going to be harder to meet than justification of disability-related discrimination. But, for this type of discrimination to occur, the employer does have to know, or reasonably be expected to know, that the employee has the disability in question. 

Is there an example of what might constitute discrimination arising from disability?
The Government Equalities Office guidance gives the example of a disabled employee who, because of his or her disability, has to take more time off than other employees. If the employer treats the employee less favourably because of this, this will be unfavourable treatment because of something – the absence – arising in consequence of the employee’s disability. 

A new provision has been inserted into the Act regarding enquiries about disability and health – what does that do?
Section 60 basically makes it unlawful for an employer to "ask about the health" of a job applicant before offering work to, or shortlisting, the applicant. If the employer asks an unlawful question about health during the recruitment process, and the applicant does not get the job, in any subsequent disability discrimination claim the burden of proof will be on the employer to show that there was no discrimination. 

Is it just written questions in health questionnaires that are outlawed?
No, both written and oral questions are outlawed by the provision, so employers will have to ensure that line managers conducting job interviews avoid the subject of health or fitness. Neither is the provision limited to questions directed at the job applicant. So a request for a reference sent before a job offer is made must also avoid asking questions that contravene the provision. 

Does that mean that employers will not be able to ask if an applicant needs reasonable adjustments to be made to the interview process?
No, there are several exceptions to the rule, one being where the question is necessary to establish if the employer has a duty to make reasonable adjustments in relation to an assessment – which would include a job interview or sitting a test. 

Legal guidance

Disability discrimination under the Equality Act 2010
Much of the media attention on the Equality Act 2010 has focused on controversial areas relating to socio-economic inequality, positive action and gender pay reporting. However, the Act's disability discrimination provisions are likely to have much more impact on day-to-day working life. In this article, we take a detailed look at how the Equality Act 2010 deals with disability discrimination and how the current disability discrimination regime will change when the new provisions come into force.