What Are Examples of Disability Discrimination?

Introduction

The Government described the duty to make reasonable adjustments as “a cornerstone of the [Equality] Act and requires employers to take positive steps to ensure that disabled people can access and progress in employment.” On the face of it, this should have resulted in a decrease of disability discrimination in the UK, unfortunately has not been the case.
This essay will critically discuss the extent to which the introduction of reasonable adjustments has been successful in the UK, and whether or not the duty to make reasonable adjustments has eliminated discrimination and inequality of opportunity faced by disabled individuals. This essay will focus upon disability and employment as its main point of reference to highlight any discrepancies between non-disabled and disabled people in the workplace.

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Background to the Equality Act 2010

Disability is defined in the Equality Act 2010 in Section 6(1) as meaning a physical or mental impairment, which adversely affects normal day-to-day activities, with the adverse effect needing to be substantial. Instead of a list of disabilities that are capable of this definition, the Act has given a broad definition, which the disability would have to adhere to if a Claimant is to be successful in their claim. Whether or not a person is disabled is often the first hurdle for an Applicant and can be the most contentious in employment litigation.

Discrimination is defined in the Act as when, “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” Prior to 2010, the Disability Discrimination Act 1995 was the leading statute in this area, ensuring employers were under a duty to make reasonable adjustments for their disabled employees. The House of Lords in Archibald v Fife Council stated that,
“The DDA does not regard the differences between disabled people and others as irrelevant. It does not expect each to be treated in the same way. The duty to make adjustments may require the employer to treat a disabled person more favourably to remove the disadvantage, which is attributable to the disability. This necessarily entails a measure of positive discrimination.”
This case was the first substantial case to be litigated on the basis of making reasonable adjustments. The employee had been dismissed on the basis that they could no longer fulfil their job duties following an operation. This was a discrimination claim and the House of Lords held that there had been a failure by the employer to make reasonable adjustments.

Current Law

As the law currently stands, the duty to make reasonable adjustments is found in Section 20 of the Equality Act 2010, which states that this duty is comprised of three requirements found at section 20(3), (4) and (5). Firstly, where an employer’s “provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled,” then the duty arises. Secondly, it also arises if the disabled person has a physical feature which puts him at a substantial disadvantage and thirdly, without an auxiliary aid, the disabled person would suffer from an inequality of opportunity. Overall, the duty arises when, without such adjustments, the disabled person would be put in a severely disadvantaged position when compared to their non-disabled colleagues. The law imposes upon employees a duty to take reasonable steps to ensuring that the adjustments made would avoid this disadvantage. It is interesting to note that the duty on employers to make reasonable adjustments to disabled individuals extends to contract workers and other temporary members of staff such as trainees. This should provide adequate protection from disability discrimination as it extends to all staff but this does not necessarily suffice.
Section 20(7) of the Act states that employers are not permitted to charge disabled employees for the costs in making any reasonable adjustments. This is arguably a very important section of the Equality Act as it ensures that disabled individuals are not penalised and bearing the costs themselves for any adjustments to make. It is fair to say that without such protection, the opportunity for discrimination in this way would have been rife in the workplace. Therefore, the duty on employers to make reasonable adjustments is a positive step forward to eliminating disability discrimination in employment.
The requirement for equal opportunities for all employees extends to the recruitment policies of an organisation as well. This will include ensuring that the job advertisement and description is adequately detailed about what is required of the job, yet at the same time making no discriminatory claims. If applicants have to complete an application form then it should be available in different forms to accommodate all disabled people, such as an option in braille. When individuals are invited for interview, all reasonable adjustments should be made to welcome them and assist them on the day, such as having the interview on the ground floor if the applicant is a wheelchair user. The recruitment committee should, ideally, have an equality and diversity officer within the human resources team to ensure compliance with their legal duty of no discrimination against disabled people. When selection tests form part of the recruitment process, applicants with dyslexia or other conditions, should be given longer to read and answer the questions to ensure a fair process. If an applicant is offered the job, then discussions should take place as to what steps and measures should be given to enable the individual to work in a comfortable environment. On the other hand, if an individual is not suitable for the position, then reasons why they were deemed not suitable should be recorded. There should be no evidence of discrimination in these reasons as this could potentially form the basis for a discrimination claim.

Reasonable Adjustments

The importance of making reasonable adjustments was emphasised by a previous Parliamentary Under-Secretary of State for Education and Employment, who advised that local authorities,
“will be able to do virtually anything to encourage and enable disabled people to work for them, as long as they appoint the person who is most suitable for the job after they have made reasonable adjustment … there is no maximum for such adjustments. If a local authority is prepared to invest vast sums of money in making provision so that a disabled person is suitable for a job, that is up to the authority, and it has that privilege”.
The Tribunal in Wynn v Multipulse Electronics Ltd also considered this, where the job applicant was not interviewed on “health and safety” grounds because of his disability. The Tribunal found that the applicant had the requisite skills and experience for the job, but had been initially rejected as the small company decided that they did not have the resources/finance to make the necessary reasonable adjustments. The Tribunal rejected this reasoning and decided that the company had not made a sensible consideration for the reasonable adjustments, including the fact that the Government provided support for work initiatives and, on this basis, they were successfully sued for disability discrimination. The duty to provide reasonable adjustments to disabled workers has provided the individuals with the statutory vehicle to pursue litigation to alleviating disability discrimination. It is an important outcome from the legislation.
Reasonable adjustments can be temporary and can include improvements to the workplace to enable disabled employees to access their workspace and to be able to do their job correctly. This is often seen by the providing of ramps to work premises to assist wheelchair users. There is also the option of delegating certain parts of the job to temporary staff. By allowing disabled people the option of flexible working hours and by granting them leave of absence for medical appointments etc, employers would be satisfying their legal duty of reasonable adjustments. This ties nicely with the opportunity of job-share. Before starting their role, employers should ensure that disabled people have had the requisite training for their role and correctly understand what is required of them. Employees should have the right equipment in order to complete their duties and this can include specially formatted computers for those with hearing and speaking difficulties. The statute has ensured that employers should take into consideration and take action into the above, and this on the face of it should be sufficient to combat discrimination to provide all employees with equal opportunities at work.
Section 21 of the Equality Act 2010 states that it is against the law for an employer to fail to comply with this duty and they can face a discrimination claim if a breach has occurred. Notwithstanding this, Part 3 of Schedule 8 of the Act allows employers the defence that if they lacked knowledge of the disability then they cannot be sued for any lack of action on their part. This is arguably a fair section in the Act as the legal duty on employees has to be reasonable and employers cannot be expected to act if they were unaware of the disability. This is especially so when there is no legal duty on employees to report their disability to their employers. Although, if at interview the person’s disability is obvious at first sight, for example a wheelchair user, then the defence will not be permitted. Similarly, employers are permitted to ask such questions at interview and/or through an application form as to whether reasonable adjustments would be necessary for interview etc. It is argued that organisations that subscribe through these methods are adequately protecting themselves against potential disability discrimination claims. This may be more difficult for current employees whose conditions develop during their employment. The most common example is when an employee is suffering from depression and does not exhibit any outward symptoms. The question for the Tribunal is whether or not the employer ought reasonably to have known about the disability. These questions are arguably fair restrictions on the duty to make reasonable adjustments that should not prevent a clear case of disability discrimination.

Approach by the Employment Tribunal

If successful, Claimants can be awarded substantial fines by the Employment Tribunal, which should, in principle, lead to adequate deterrence to prevent further discrimination by organisations. Despite this, it is not necessarily the case as numerous claims have occurred every year since the introduction of the Equality Act 2010, thereby highlighting the large numbers of discrimination occurring in the workplace. Although, this figure is not truly representative as a number of employees do not take their case to the Tribunal, and it is worrying that the current figure may hide more discrimination in the UK. The lack of cases being taken to the Tribunal may be accounted for the rise in costs to take such action that is largely preventing claimants from pursing their claims. Those in the legal profession have voiced their concerns over the Government’s cuts in legal aid to this area and rising costs. Whilst the statue has in place the duty to make reasonable adjustments, if people cannot take their cases to Tribunal, this will severely reduce the deterrence and enforcement impact of the duty.
The question of whether or not the adjustments made were ‘reasonable’ is assessed objectively by the Employment Tribunal:
“The question of whether any reasonable adjustments were required … depends on an objective assessment of what could be done to ameliorate the disadvantage in fact created.”
The objective nature of the test was reinforced by the case of Tarbuck v Sainsbury Supermarkets Ltd and this remains under the Equality Act 2010. When deciding whether or not the employer has taken ‘reasonable’ measures, the Tribunal will consider factors, such as effectiveness and questioning whether it was a practical move. For example, by providing a blind employee with a computer formatted with braille, is both an effective and practical move to assisting the employee. Costs are a very important consideration and this will depend on a number of factors, such as the resources available to the organisation. It is common sense that a bigger company with more disposable income will be expected to have contributed more to the reasonable adjustments than a smaller company. Notwithstanding this, it is no justification for the employer to say that they could not afford the adjustments required to enable the disabled person to work. It is their legal duty to comply and the Government have providing numerous ways of funding these adjustments. Therefore the legal duty should be complied with and it should have initiated a sharp decrease in the instances of disability discrimination.
In Tribunals today, the most popular test is that of The Secretary of State for Work and Pensions v Wilson, where the EAT held that firstly employers have to ask themselves whether the adjustment would overcome the disadvantage the disabled person is currently facing. If this is answered affirmatively, then the Tribunal considers whether or not it was practicable to take these steps. By assessing practicality, the Tribunal will consider the company’s resources and finances to ensure a fair decision is reached. Therefore a smaller company cannot have the defence of saying that they cannot afford to employ a disabled person. On this basis, the legal duty should be alleviating disability discrimination as it applies to all businesses.

Academic Commentary

Academics such as Anna Lawson point to the fact that disability is the only protected characteristic whereby an employer is under a reasonable adjustment duty. The UK is not unique in this respect, as the same situation is found in the EU and international law.
“There have been calls for a more expansive approach which would extend such duties to religion or to other characteristics more generally. There was, however, surprisingly little discussion of such a possibility in the lead up to the Equality Act. Such a discussion might have been helpful in identifying whether disadvantages often associated with other protected characteristics require the flexibility of response of a reasonable adjustment duty or can be more effectively tackled through specific schemes (such as those applying to flexible working and parental leave).”
From this academic perspective, it is fair to say that the legal duty on employers is a positive development in removing discrimination from disabled people. In this article, Lawson is such a supporter of the concept that she campaigns for its existence in other protected characteristics such as religion. This is because failing to comply with the duty to make reasonable adjustments is a form of discrimination in Employment law and the same cannot be said for other protected characteristics. On this viewpoint, it is strongly suggested that disabled people face higher protection than others in this regard.
One of the many positives of the legal duty is that it, “If an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show that the treatment was objectively justified.”
However, one of the major problems with discrimination affecting disabled people is that, even if an employer complies with his duty to make reasonable adjustments, they can still treat the disabled employee unfairly on the basis of their disability. For example, an employer may change an employee’s working hours to ensure they attend medical appointments, but that does not prevent them from dismissing the employee on the ground of absence from work. From an objective perspective, the legal duty on employees to make reasonable adjustments for disabled workers has resulted in an increase in the number of disabled people in employment. This can be viewed as a positive step forward in support of disabled people in the workplace. Yet this has occurred with at the same time as an increase in the number of disability discrimination claims. Given the high number of claims, it is at least arguable that reform of the law is required to provide stronger deterrence against disability discrimination.

Case Law

The case law in this area is interesting and provides valuable assistance in examining whether or not adjustments have eliminated discrimination and inequality of opportunity faced by disabled individuals. The case of Wilson v DWP provides a useful insight into the attitudes of the Tribunal and the way that disability discrimination law has developed, as the Tribunal was seen to be making a substantial award as a mark of deterrence.
The case of O’Hanlon v Commissioner for HM Customs said that,
“It will be a very rare case indeed where the adjustment said to be applicable here, that is merely giving higher sick pay than would be payable to a non-disabled person who in general does not suffer the same disability related absences, would be considered necessary as a reasonable adjustment…although we do not rule out the possibility that it could be in exceptional circumstances.”
Therefore, in exceptional circumstances this could form part of the employer’s legal duty to make reasonable adjustments for disabled people to alleviate any disadvantages or inequality of opportunity. The Tribunal in Nottinghamshire County Council v Miekle echoed this, where the employee was awarded full sick pay for her leave of absence from work. But, this was namely because the failure to make reasonable adjustments was the reason for the employee’s absence, there was a causal connection that assisted her claim. Therefore, this should provide sufficient protection for disabled people from discrimination in the work place.
Although, successful cases against employers have been found in cases, such as Burke v Clinton Cards. In this case, a female employee was diagnosed with cancer and despite her employer being aware of her condition, she received an increased workload and the work was not suitable for her. The Tribunal found that her employer had not complied with their legal duty to provide reasonable adjustments, such as a lighter workload or job duties more suitable to her condition. Both of these measures could have been easily implemented and it only highlights the lack of action by the employer. Therefore, the Tribunal awarded the employee ?10,000 in compensation for her discriminatory treatment. This shows that the Tribunals are willing to find actions of disability discrimination and are doing their part to significantly reduce disability discrimination at work.
In the case of Chief Constable of South Yorkshire police v Jelic, the Employment Appeals Tribunal upheld the ruling by the trial Tribunal that the employer had failed to make reasonable adjustments for the disabled employee. The EAT ruled that it would have been a reasonable measure to have allocate the employee’s duties to another police officer in order to assist them. Job sharing and allocating of responsibilities is an important delegation decision for the employer and the Tribunal views it as a reasonable action to take in the circumstances views it. The relatively simple nature of such an action is arguably strong evidence of the continual presence of discrimination against disabled people by employers. The fact that it is against the law to do so does not appear to be an adequate deterrent against discriminatory behaviour.
In the media, there have been a couple of high profile cases involving disabled people and the lack of reasonable adjustments. One of the most controversial cases, which showed an apparent discrimination case that shocked the nation, was the female employee at Abercrombie & Fitch. The woman had had her arm amputated and as a result, the employer said it was not a sight that customers should have to see whilst they were shopping. Instead, of making reasonable adjustments to accommodate this, the female employee was sent to the stockroom. The Tribunal and most reading the case were appalled with the behaviour and attitude of the employer. This was reflected in the award the Tribunal provided to the employee. The high profile nature of such claims should act as sufficient deterrence but this case shows that it has been successful at this. Therefore, more is required in order to reduce discriminatory actions against disabled work to allow everyone to be treated equally at work.

Conclusion

The statute provides that the employer has an important duty to take reasonable practicable steps to ensure that their employees are protected from any risk of harm. This is extended when the situation concerns disabled people as employers must go one step further to make sure that the work and their work premises do not prohibit their ability to do their job. On the face of it, it is clear that the duty to make reasonable adjustments has, to some extent, eliminated discrimination and inequality of opportunity faced by disabled individuals. The same problem applies across the law of discrimination as protection is only granted to the individual if their condition meets the definition of ‘disability.’ It is arguably a complex definition that should be given wider scope to ensure adequate protection for all disabled people in the UK against discrimination. The high number of hurdles a claimant has to jump over to be successful in this litigation is a worrying concern for some academics, as they propose that even more has to be done in this area to alleviate disability discrimination in the workplace. As one academic, who campaigns for a reform in the law, says:
“The requirement of knowledge reinforces the reactive nature of the reasonable adjustment duty and likewise places no obligation on employers to consider adjustments until they are confronted either by an applicant, or employee whom they know, or ought to know, to be disabled and to be exposed to a substantial disadvantage as a result of their provisions, criteria, practices or physical features.”

Also, the vast number of cases being heard by Employment Tribunals nationally shows that the law is not acting as deterrence to employers. Instead, it may be advisable that reforms do occur in the law to ensure that disabled people have the same opportunities that are open to all.

Bibliography

Articles
Employment Law Bulletin, ‘Disability Discrimination Act 1995’ (1996) 2

Anna Lawson, ‘Disability and employment in the Equality Act 2010: opportunities seized, lost and generated” Industrial Law Journal (2011) 359
Stephen Bunbury, ‘The Employer’s Duty to make Reasonable Adjustments. When is a reasonable adjustment not reasonable?’ International Journal of Discrimination and the Law 2009, Vol.10, pp. 111-131

Books
Ian Smith & Aaron Baker, ‘Smith & Wood’s Employment Law’ (11th ed, OUP, 2013)

Cases
Archibald v Fife Council [2004] IRLR 651
Burke v Clinton Cards October 2010, ET/2900622/09
Chief Constable of South Yorkshire police v Jelic [2010] UKEAT 0491/09/2904
Nottinghamshire County Council v Miekle [2004] EWCA Civ 859
O’Hanlon v Commission for HM Customs [2006] IRLR 840
Tarbuck v Sainsbury Supermarkets Ltd [2006] IRLR 664
The Secretary of State for Work and Pensions v Wilson UKEAT/0289/09
Wilson v DWP [2010] EAT/0289/09

Wynn v Multipulse Electronics Ltd 22 October 2007, Case Number: 2301416/07

Government Report
Equality of Human Rights Commission, ‘Equality Act 2010 Code of Practice’

Legislation
Disability Discrimination Act 1995
Equality Act 2010

Website
Rebecca English (The Daily Mail) “I was banished to the stockroom, says disabled shop girl now suing Abercrombie & Fitch for discrimination” available at http://www.dailymail.co.uk/news/article-1192674/I-banished-stockroom-says-disabled-shop-girl-suing-Abercrombie–Fitch-discrimination.html accessed 9 May 2014
Equality & Human Rights Commission ‘Reasonable adjustments’ http://www.equalityhumanrights.com/advice-and-guidance/education-providers-schools-guidance/key-concepts/reasonable-adjustments/ accessed 13 May 2014
Gov.uk, ‘Reasonable adjustments for disabled workers’ https://www.gov.uk/reasonable-adjustments-for-disabled-workers accessed 13 May 2014
HSE ‘The law’ http://www.hse.gov.uk/disability/law.htm accessed 13 May 2014
Samira Shackle (NewStatesman) ‘How legal aid cuts are harming the voiceless and most vulnerable’ (13 January 2014) http://www.newstatesman.com/politics/2014/01/how-legal-aid-cuts-are-harming-voiceless-and-most-vulnerable accessed 13 May 2014

Xpert HR, ‘Disability discrimination awards 2011/12’ http://www.xperthr.co.uk/quick-reference/disability-discrimination-awards-201112/114296/ accessed 9 May 2014

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