Disability discrimination

CONSIDER OTHER CLAIMS i.e. WD

A person must first satisfy its definition of disability (s6 and Schedule 1, part 1). They must then be able to point to an unlawful act such as the failure to recruit or promote the disabled person.

Under the Equality Act 2010 there are claims of: direct discrimination (and combined discrimination) (ss13 and 14), discrimination arising from disability (s15), indirect discrimination (s19), failure to make reasonable adjustments (ss20 and 21), harassment (s26) and victimisation (s27).

The burden placed on the employer is higher for disability discrimination than it is for other protected characteristics; for example, an employer is under a duty to consider whether adjustments need to be made to accommodate the needs of the disabled person. If adjustments are required, the employer must make all ‘reasonable adjustments’.

Definition of Disability

Section 6 and schedule 1 EA 2010
for claimant to qualify as disabled, must meet the following conditions:
- either mental or physical impairment
- impairment affects ability to carry out normal daily activities
- impairment has a substantial adverse effect
- adverse effect is long-term

Disability Discrimination Different Conditions

Task 1

Two broken arms and absent for four months
1. Physical impairment – (Sch 1 para 6) two broken arms would be a physical disability
2. Substantial (s 212(1) – with two broken arms unable to do day to day tasks
3. Adverse effect – affects her ability to carry out day to day activities and is more than trivial
4. Long term effect – (Sch 1 part 1, para 2 EA 2010) this is not likely to last more than 12 months as we are told that she should recover within 4 months.

She is not disabled

Suffered serious facial disfigurement
1. Physical impairment – (Sch 1 para 6) facial disfigurement is a physical disability
2. Substantial (Sch 1 Pt 1, para 3) – severe disfigurement is deemed to have a substantial adverse effect on the person to carry out day to day activities
3. Long term effect – this is permanent and long term (Sch 1, part 1, para 2)

He would be classified as disable.

HIV infection (Sch 1 para 6) (p 385)
1. Physical impairment as it is a medical condition which includes diseases such as HIV – do not have to prove it is substantial or has an adverse effect and long term effect. It applies from the time of diagnosis, (includes cancer and MS).
2. HIV is a disability

Does Paul’s arthritic condition come within the definition of s 6 and Pt 1 of Schedule 1 of EA 2010?

‘Under S.6 and Sch 1 EA 2010 a person has a disability if he has a physical or mental impairment, which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities’

NB: Government Guidance - Appendix

Requires a tribunal to look at four different (cumulative) conditions:

A PHYSICAL OR MENTAL impairment…	‘In order to be eligible for disability discrimination a person must satisfy the definition of disability under s.6 Sch 1 EA 2010. The claimant must have a physical or mental impairment. On the facts Paul Stevens has arthritis which affects his wrist and knee joints and comes under the definition of physical impairment’. Example: Arthritis (that effects people in the morning – the crystals within the joints need to be broken down) –is a condition that affects the joints in wrists and knees: conditions where the effects vary over time or come in episodes and is therefore a physical impairment
Which is SUBSTANTIAL…	‘S.212(1) of the Act requires an impairment to be substantial. The Act defines ‘substantial’ as ‘more than minor or trivial. Guidance suggests that when establishing if an impairment is a disability we should consider that he cannot get out of bed or dress easily. He cannot take the lid off a coffee jar without using a gadget. The condition responds reasonably well to medication but will not go away. (Use of medication, treatment or aids must be disregarded in relation to the fact that it takes the pain away.) Because Paul Stevens has a progressive condition which means that the Impairment has some effect in carrying out day to day activities and this is likely to have substantial effect in future. He need only show some effect. Whether the condition is substantial will be a question of fact to be determined by tribunal.
WHICH HAS AN ADVERSE EFFECT ON NORMAL DAY-TO-DAY ACTIVITIES CONDITION	‘To satisfy the definition of disability the Tribunal must ascertain whether the identified impairment adversely affects the claimant’s ability to carry out normal day-to-day activities. Guidance states that the term ‘normal day-to-day activities’ are things that people do on a regular or daily basis. On the facts Paul Stevens is unable to get out of bed or dress easily or open a coffee jar without a gadget which are activities which he cannot do without aids, gadgets or medications that are helpful. Without the use of aids, gadgets or medications, he is unable to do the functions above.
substantial adverse Effect	The impairment must have a substantial adverse effect. Substantial means ‘more than trivial’ rather than ‘very large’, so it’s not a high standard. Whether or not the impairment has a substantial adverse effect is a question of fact to be determined by the tribunal. Tribunal should focus on what the Paul Stevens cannot do or only do with difficulty rather than on things he can do (Patterson v Commissioner of Police of the Metropolis). If the claimant can carry out normal day-to-day activities in pain or with difficulty, this can amount to a substantial adverse effect, but won’t necessarily do so. Of course, many people who have impairments use medication or treatment to help reduce the effects of the impairment. Nevertheless they can still be classed as disabled. If someone has a progressive condition, provided it will have a substantial effect, it is presumed that they have that condition.
and has a The longterm effect	Under Sch 1...

Buy the full version of these notes or essay plans and more in our Employment Law Notes.

Disability Discrimination Notes

Updated Disability Discrimination Notes

Employment Law

Disability discrimination

Definition of Disability

Disability Discrimination Different Conditions

Does Paul’s arthritic condition come within the definition of s 6 and Pt 1 of Schedule 1 of EA 2010?

Disability Discrimination

Need instant answers? Our AI exam tutor is here to help.

More Employment Law Samples