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Disability Discrimination Notes

LPC Law Notes > Employment Law Notes

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A more recent version of these Disability Discrimination notes – written by University Of Law students – is available here.

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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 DISABILITYSection 6 and schedule 1 EA 2010for 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

1. Two broken arms and absent for four months a. Physical impairment - (Sch 1 para 6) two broken arms would be a physical disability b. Substantial (s 212(1) - with two broken arms unable to do day to day tasks c. Adverse effect - affects her ability to carry out day to day activities and is more than trivial d. 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

2. Suffered serious facial disfigurement a. Physical impairment - (Sch 1 para 6) facial disfigurement is a physical disability b. 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 c. Long term effect - this is permanent and long term (Sch 1, part 1, para 2) He would be classified as disable.

3. HIV infection (Sch 1 para 6) (p 385) a. 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). b. 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 DAYTO-DAY ACTIVITIES CONDITION

SUBSTANTIAL ADVERSE EFFECT

'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. 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 para 2 the effect of an impairment is long-term if...
- It has lasted for at least 12 months
- It is likely to last for at least 12 months; or
- It is likely to last for the rest of the life of the person affected 'On the facts Paul Stevens's impairment is will last for the rest of his life. His doctors have said his condition will get steadily worse. This condition will last for more than 12 months and is long term. It is more than trivial.

MEDICAL EVIDENCE

CONCLUDE

In order to prove the impairment is a disability to a tribunal, a doctor's diagnosis as well as the conditions effect on Paul Stevens's day to day life will be adequate. To conclude, on the facts Paul Stevens arguably has a disability as he establishes the criteria under s.6 of the Act.'

ELIGIBILITYELIGIBIL ITY???PERCEIV ED &
PAST DISABILT IES

Within 3 months of act of discrimination beginning with the date of the act complained of, unless the tribunal considers that it is just and equitable in the circumstances to hear the claim outside that period (s 124 EA 2010). Claimant must satisfy the definition of disability 'The Equality Act protects broad range of workers and employees under S83.
[NAME] is able to make a claim as [he/she] is an employee (British Airways Plc v Mak and others). There is no requirement of continuous employment. The claim must be brought within 3 months of the act of discrimination (if there are a series of acts it will be from the last one but it is better to go from the first)
[He/She] was [dismissed] on [DATE e.g. 9th May] and would have to bring claim by midnight [DATE 8th August].' In cases of failure to make reasonable adjustments, the three month period runs from the point at which the employer makes it clear that no adjustment or further adjustment can be made (Matuszowicz v Kingston)

PERCEIVED
? The act is wide enough to include people who are discriminated against because they are perceived to be disabled ('because of' (direct discrimination s 13) 'related to' (harassment s 26) PAST
? Sch 1 para 9 past disabilities are protected e.g. mental illness which is now cured

DISABILITY 'Under S.6 and Sch 1 Pt 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' Requires a tribunal to look at four different (cumulative) conditions:

A PHYSICAL OR MENTAL IMPAIRMEN T...

DISABIL ITY

'In order to be eligible for disability discrimination a person must satisfy the definition of disability under s.6 Sch 1 Pt 1 EA 2010. The claimant must have a physical or mental impairment. On the facts [NAME] has
[ILLNESS] which [WHAT IT AFFECTS] 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) - joints in wrists and knees: conditions where the effects vary over time or come in episodes
? Broken arms (loss the use of both arms)
? Serious Disfigurement (skin on his face)
? Sensory impairments
? organ specific diseases such as asthma, diabetes (because without medication would be ill)
? progressive diseases such as MS; and
? Mental health conditions such as depression, OCD and eating disorders.
? Certified blind, severely sight impaired or partially sighted Under Sch 1 Pt 1 para 6 [DISEASE] is a disability from the point of diagnosis therefore there is no need to show that the disability has a substantial effect.
? Cancer
? HIV infection
? Multiple Sclerosis How was it caused? (Walker v Sita Information Networking Computing Ltd) - focus is on the effect of the impairment and not how the impairment was caused.
- If you get liver failure because of alcoholism this is a disability as you do not consider how the impairment was caused CONDITIONS THAT DO NOT FALL UNDER THE ACT
? Addiction to alcohol
? Addiction to nicotine or any other substance
? A tendency to start fire or steal
? A tendency to physical or sexual abuse of others
? Exhibitionism or voyeurism
? Hay-fever except where it aggravates another condition '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 [APPLY TO FACTS]...

WHICH IS SUBSTANTIA L...????

time taken to carry out an activity compared to time it would take a person who does not have the disability Pain in doing activities the way in which an activity is carried out the cumulative effects of an impairment the effects of behaviour; and the effects of the environment The fact that they require medicine to alleviate symptoms (Use of medication, treatment or aids must be disregarded in relation to the fact that it takes the pain away.)

Progressive conditions - disability if:
? Impairment having some effect to carry out day to day activities
? Likely to have substantial effect in future

['Because [NAME] has a progressive condition [he/she] 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

DISFIGURMENT 'An impairment of disfigurement is deemed to have a substantial effect and depends on the severity of the disfigurement. On the facts [NAME]
...'
? Scars
? Birth marks
? Limb or postural deformation
? Diseases of the skin
? NOT - bad tatoos/piercings 'To satisfy the definition of disability the Tribunal must ascertain whether the identified impairment adversely affects the claimants 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 [NAME] is unable to...
? Shop
? Read
? Get dressed
? Prepare meals (making coffee)

On the facts [Claimant] 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. SPECIALISED ACTIVITIES
? 'The term is not intended to include activities which are normal only for a particular person or group of people as highly specialised activities do not have an effect on normal day-to-day activities. On the facts [NAME]'s [SPORTING...] would not therefore be considered a normal-day-to-day activity as [compare to other people]'.
? Lifting exceptionally heavy objects does not come within the definition

SUBSTANTIA L ADVERSE EFFECT

WORK ACTIVITIES
? Cruickshank v VAW Motorcast if at work a claimants symptoms have a significant and long-term effect on his ability to perform dayto-day tasks, such symptoms should not be ignored simply because the work itself if specialised 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 claimants cannot do or only do with difficulty rather than on things they 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.

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