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LPC Law Notes Employment Law Notes

Disability Discrimination Model Answer Notes

Updated Disability Discrimination Model Answer Notes

Employment Law Notes

Employment Law

Approximately 388 pages

A collection of the best LPC Employment notes the director of Oxbridge Notes (a former Oxford law graduate) could find in 2014 after combing through seventeen LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of Employment Law notes available in the UK this year. This collection of notes is full...

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The following is a more accessible plain text extract of the PDF sample above, taken from our Employment Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

ELIGIBILITY/ TIME LIMITS FOR ALL DISCRIMINATION CLAIMS

  • Claim must be brought within 3 months of act of discrimination
UNLAWFUL ACT FOR ALL DISCRIMINATION CLAIMS

  • Discrimination in job advert, recruitment, promotion, dismissal, harassment, post-employment matters, subjecting a person to detriment
PROTECTED CHARACTERISTIC – “DISABILITY”

  • Does it satisfy s.6 EA 2010 definition?

    • Physical/mental impairment

      • Given its natural meaning – straightforward

    • Long term

      • Sch 1 Para 2 EA 2010 – Lasted at least 12 months or likely to last for at least 12 months

    • Substantial adverse effect

      • More than minor or trivial effect – e.g. causing pain, fatigue, substantial social embarrassment or a loss of energy and motivation (Appendix 1 page 287 - Employment Statutory Code of Practice)

      • A progressive condition is taken to have a substantial adverse effect if it is likely to be substantial in the future, even if it is not substantial now (Sch 1 Para 8 EA 2010)

    • Normal day-to-day activities

      • See ODI guidance Appendix 1 page 47 (attached to this model answer)

  • Two common exceptions:

    • Cancer, HIV infection and multiple sclerosis – each a disability from the point of diagnosis with no need to show that it has a substantial adverse effect on the claimant’s ability to carry out normal day to day activities - no need to apply the definition (Sch 1 Para 6 EA 2010)

    • Facial disfigurement – Once it has been established that there is an impairment and that impairment is long term, a claimant with a facial disfigurement will be deemed disabled. There will be no need to show that the impairment has a substantial adverse effect on the claimant’s ability to carry out day to day activities as this is already deemed to be the case under Sch 1 Para 3 EA 2010
FAILURE TO MAKE REASONABLE ADJUSTMENTS (s.21 EA 2010)

  • s.20 imposes the duty to make reasonable adjustments on the employer if there is a PCP, physical feature or lack of auxiliary aid that puts claimant at a substantial disadvantage in comparison to non-disabled people

    • Identify the PCP, physical feature or lack of auxiliary aid

    • Identify the comparator – person without the disability who could adhere to the PCP (Archibold)

    • Was he at a substantial disadvantage in comparison to the comparator? E.g. “Yes as he could not get work the hours of the new regime and was consequently dismissed”

  • So yes, the respondent was indeed under a duty to make reasonable adjustments. Did the respondent make such adjustments?

    • Identify possible adjustments – change of hours, install a lift etc.

    • Objective test – Smith v Churchill

    • Conclude whether such adjustments would objectively be reasonable

  • Defence of not having actual knowledge of the disability – will rarely apply
DISCRIMINATION ARISING FROM DISABILITY (s.15 EA 2010)

  • Has the employer treated the claimant unfavourably because of something arising in consequence of his disability? (Note: no comparator required as the treatment must simply be unfavourable as opposed to ‘less’ favourable)

    • Apply – e.g. “the employer knew about the claimant’s disability but treated him unfavourably as he did not allow him to change his hours and ultimately dismissed him”

  • Defence under s.15(1)(b) EA 2010 – was the treatment a proportionate means of achieving a legitimate aim?

    • Apply – e.g. “the employer’s aim was to keep clients happy by having someone available during those hours. Dismissing the claimant however is not proportionate as he could have assigned him to different clients or changed his hours”

    • Further, Code of Practice on Employment Paras 5.20 and 5.21 make it clear that it will be unlikely that the respondent will be able to objectively justify the unfavourable treatment if the there were reasonable adjustments that could have been made and they failed to make those adjustments

    • (If employer fails to make reasonable adjustments, it is very unlikely that a discrimination arising from disability claim could be defended)

    • Conclude
DIRECT DISCRIMINATION (s.13 EA 2010)

  • Rarely applicable in disability discrimination claims; see direct...

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