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Disability discrimination

Updating author: Tina McKevitt

Summary

  • Disability is a "protected characteristic" under the Equality Act 2010. A person has a disability if he "has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities". (See Definition of disability)
  • The effect of any medical treatment that the employee is receiving should be disregarded when assessing whether or not they meet the definition of disability. (See Medical treatment)
  • There are conditions that are specifically excluded from the definition of disability and therefore the scope of the Equality Act 2010. (See Excluded conditions)
  • The definition of "employee" for the purposes of protection against disability discrimination is wider than that contained in other employment legislation. (See Who is protected?)
  • As well as being liable for its own actions, there are circumstances in which an employer will be liable for the acts of others. Under the wider provisions of the legislation, others who are not employers may find themselves liable. (See Who is liable?)
  • The Equality Act 2010 prohibits direct discrimination (which includes discrimination by association and discrimination by perception), indirect discrimination, discrimination arising from disability, discrimination by way of a failure to comply with the duty to make reasonable adjustments, victimisation and harassment. (See Prohibited conduct)
  • It is unlawful to discriminate in the context of employment or vocational training including, in particular circumstances, after the working relationship has ended where the prohibited conduct arises out of and is closely connected to that relationship. (See Prohibited conduct in the employment context)
  • Direct discrimination is where, because of the protected characteristic of disability, a person treats another person less favourably than that person treats or would treat other persons. (See Direct discrimination)
  • Indirect discrimination is where a person with a particular disability and others who share that disability are, or would be, disadvantaged by the unjustified application of a provision, criterion or practice (PCP) when compared with others to whom the PCP is, or would be applied, and who do not share that disability. (See Indirect discrimination)
  • Discrimination arising from disability is where A treats B unfavourably because of something arising in consequence of B's disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim (see Discrimination arising from disability)
  • An employer may be able to justify the discriminatory result of a provision, criterion or practice, or unfavourable treatment arising in consequence of B's disability, by establishing that it is justifiable because it is a "proportionate means of achieving a legitimate aim". (See Justification)
  • The Equality Act 2010 imposes a duty on an employer to make reasonable adjustments where a disabled employee is placed at a substantial disadvantage by a provision, criterion or practice, a physical feature of premises occupied by the employer, or the lack of an auxiliary aid. (See Reasonable adjustments)
  • Harassment is where person A engages in unwanted conduct related to the protected characteristic of disability, which has the purpose or effect of violating person B's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. (See Harassment)
  • Under the Protection from Harassment Act 1997, an employer may be vicariously liable for a course of conduct by one of its employees that amounts to harassment under the Act. (See Protection from Harassment Act 1997)
  • Victimisation is where person A subjects person B to a detriment because B has done, or A believes that B has done, or may do a "protected act". (See Victimisation)
  • Employers may in certain circumstances lawfully restrict work to people with a particular disability. (See Occupational requirements)
  • A person (A) to whom an application for work is made must not ask about the health of the applicant (B) before offering work to B unless the purpose of the question is for one of the permitted reasons set out in the Equality Act 2010. (See Enquiries about disability and health in recruitment)
  • Public authorities have a general duty to eliminate discrimination, harassment and victimisation; advance equality of opportunity between persons who share a protected characteristic and those who do not; and foster good relations between persons who share a protected characteristic and those who do not. (See Public authorities)

Future developments

There are no future developments.

Definition of disability

Disability is a protected characteristic under the Equality Act 2010. To come within the definition of disability the burden of proof is on an employee to show that they meet the four requirements contained in s.6 of the Equality Act 2010:

  • Does the claimant have an impairment that is either mental or physical?
  • Does the impairment affect the claimant's ability to carry out normal day-to-day activities?
  • Is the adverse effect substantial?
  • Is the adverse effect long term?

Although tribunals address the above parts separately, in Cunningham v Ballylaw Foods Ltd 31 January 2007 NICA the Court of Appeal in Northern Ireland said that the questions of substantial adverse effect and long-term adverse effect overlap and, ultimately, the tribunal must take a view, on the evidence, as to whether or not the overall statutory definition is satisfied. (Cunningham was decided under the Disability Discrimination Act 1995, which remains in force in Northern Ireland.)

The definition of disability in s.6 of the Equality Act 2010 is supplemented by sch.1 to the Act. It should be noted that while an employee is still required to show adverse effect on their normal day-to-day activities to satisfy s.6, the Equality Act 2010, unlike the now repealed Disability Discrimination Act 1995, does not set out an exhaustive list of what may constitute a day-to-day activity. The Equality Act 2010 explanatory notes state that this change will make it easier for some people to demonstrate that they meet the definition of a disabled person. The Government has issued guidance about matters to be taken into account for the purposes of determining disability (Equality Act 2010 guidance on matters to be taken into account in determining questions relating to the definition of disability). This guidance, which came into force on 1 May 2011, applies to cases where the alleged act of discrimination or harassment occurred on or after 1 May 2011. The guidance reflects the fact that the Equality Act 2010 does not refer to an exhaustive list of normal day-to-day activities. It also reflects developments in relevant case law since guidance was issued under the now repealed Disability Discrimination Act 1995. The tribunals and courts are obliged to take account of guidance issued under the Equality Act 2010 where relevant. General guidance is contained in the Employment statutory code of practice.

The claimant's disability is assessed at the time of the alleged discriminatory act, not at the time of the tribunal hearing. In Richmond Adult Community College v McDougall [2008] IRLR 227 CA (decided under the now repealed Disability Discrimination Act 1995), the Court of Appeal held that the likelihood of recurrence of a disability must be assessed at the date of the act of discrimination, and subsequent events cannot be taken into account. The likelihood of a disability recurring or being long term must, therefore, be based on the evidence available at the time of the discrimination, not later events. However, it is advisable for an employer to investigate whether or not an employee is disabled as, if it could reasonably have known that the employee was disabled, it will have a duty to make reasonable adjustments.

Sickness alone is not a disability. The European Court of Justice (ECJ) held in Chacón Navas v Eurest Colectividades SA [2006] IRLR 706 ECJ that a person who is dismissed solely on account of absence from work due to sickness is not protected by the prohibition against discrimination on grounds of disability. The ECJ held that sickness and disability are different and that the Equal Treatment Framework Directive (2000/78/EC) only protects workers from discrimination arising from disability. However, it should be noted that, although sickness and disability are not the same, sickness can be, or become, a disability. This decision is unlikely to affect the definition of disability under the Equality Act 2010.

The disability must impact on working life. In Z v A Government Department and the Board of Management of a Community School Case C-363/12 ECJ, Ms Z was fertile and had healthy ovaries but was unable to support a pregnancy because she had no uterus. She and her husband opted for a surrogacy arrangement whereby a surrogate mother gave birth to a baby who was their genetic child. Ms Z claimed that her employer's refusal to provide her with paid leave equivalent to maternity or adoptive leave amounted to disability discrimination, but the ECJ disagreed. The ECJ held that "the concept of 'disability' within the meaning of the Equal Treatment Framework Directive (2000/78/EC) presupposes that the limitation from which the person suffers, in interaction with various barriers, may hinder that person's full and effective participation in professional life on an equal basis with other workers". While acknowledging that "a woman's inability to bear her own child may be a source of great suffering for her" the ECJ noted that there was no suggestion that "Ms Z's condition by itself made it impossible for her to carry out her work or constituted a hindrance to the exercise of her professional activity". Accordingly, it held that her condition did not constitute a disability within the meaning of the Directive.

In some circumstances, obesity may amount to a disability. In FOA, acting on behalf of Karsten Kaltoft v Billund Kommune [2015] IRLR 146 ECJ, the ECJ ruled that while there is no general EU law principle of non-discrimination on grounds of obesity with regard to employment and occupation, the Equal Treatment Framework Directive "must be interpreted as meaning that the obesity of a worker constitutes a 'disability' within the meaning of that Directive where it entails a limitation resulting in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers". Where obesity is relied on before UK employment tribunals, the tribunal will have to determine whether or not the conditions specified by the ECJ have been met. In Bickerstaff v Butcher NIIT/92/14, the Northern Ireland tribunal applied the ECJ decision in FOA, acting on behalf of Karsten Kaltoft v Billund Kommune [2015] IRLR 146 ECJ and held that Mr Bickerstaff's obesity constituted a disability.

A person found to be disabled under another statute does not automatically qualify as disabled for the purposes of the Equality Act 2010. For example, a person who qualifies for disability living allowance may not be disabled under the Equality Act 2010 (Hill v Clacton Family Trust Ltd [2005] All ER (D) 170 (Oct) CA) (decided under the repealed Disability Discrimination Act 1995).

In London Borough of Redbridge v Baynes EAT/0293/09 (decided under the repealed Disability Discrimination Act 1995), the EAT held that the employment judge had erred in finding that Mrs Baynes, who is blind in her right eye, was disabled within the meaning of s.1 of the Disability Discrimination Act 1995, notwithstanding her clear assertions that she was not disabled and in the absence of any medical evidence. The EAT refused to permit Mrs Baynes to withdraw her concession that she was not disabled, which it stated was "clearly made" and "fully informed".

The employment tribunal in Wheeldon v Marstons plc ET/1313364/2012 held that a severe nut allergy amounted to a disability under the Equality Act 2010. In Glass v Promotion Line Ltd ET/3203338/2012, the tribunal held that severe eczema was a disability.

Additional resources on definition of disability

Line manager briefings

Impairment

The terms "physical impairment" and "mental impairment" are not defined or explained in the Equality Act 2010 but the requirement that they have a substantial effect on a person's ability to carry out day-to-day activities is seen as ensuring that minor physical impairments that do not amount to what are normally regarded as disabilities will not be covered by the Act. The Government has issued the Equality Act 2010 (Disability) Regulations 2010 (SI 2010/2128) specifying that certain prescribed conditions will, or will not, constitute an impairment. These Regulations repealed the Disability Discrimination (Meaning of Disability) Regulations 1996 (SI 1996/1455) with effect from 1 October 2010.

The Court of Session in Millar v Inland Revenue Commissioners [2006] IRLR 112 CS (decided under the repealed Disability Discrimination Act 1995) held that it is not necessary to show that there is any cause of a physical impairment or why the employee has that impairment. As it pointed out, many forms of physical impairment result from conditions that cannot be described as "illnesses" so that, for example, an amputee does not have an illness but does have an impairment. It is now clear that the claimant is not required to show a physical cause for physical symptoms, to establish that they have a physical impairment. In Power v Panasonic UK Ltd [2003] IRLR 151 EAT (also decided under the repealed Disability Discrimination Act 1995), the EAT overturned the tribunal's decision that the claimant was not disabled because alcohol addiction (an excluded condition) had led to her depression. The EAT said it was not material to consider how the impairment was caused. The question was whether or not it was a disability within the meaning of the Disability Discrimination Act 1995 or whether, where relevant, it was an impairment, such as alcohol addiction, which was excluded under the Disability Discrimination (Meaning of Disability) Regulations 1996, and continues to be excluded under the Equality Act 2010 (Disability) Regulations 2010. The fact that an excluded condition leads to a physical or mental impairment does not mean that the impairment itself is excluded (see Excluded conditions). The effect of these cases is reflected in the Equality Act 2010 guidance on matters to be taken into account in determining questions relating to the definition of disability, which states that: "It is not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded." The guidance confirms that an impairment does not have to be the result of an illness.

In Walker v Sita Information Networking Computing Ltd EAT/0097/12, the EAT (overturning the employment tribunal decision on this point) held that an employee who suffered from a wide range of health conditions and symptoms described as "functional overlay accentuated by obesity" without any identifiable physical or mental "cause" was disabled within the meaning of the repealed Disability Discrimination Act 1995. The tribunal had erred in considering it necessary to establish a physical or mental "cause" of the impairment. The absence of an apparent cause for the employee's impairment was significant only as an evidential issue in that: "Where an individual presents as if disabled, but there is no recognised cause of that disability, it is open to a tribunal to conclude that he does not genuinely suffer from it." However, in the present case it was not disputed that the employee's symptoms were genuine.

"Mental impairment" covers a wide range of impairments relating to mental functioning, including learning disabilities and mental illness. Examples given in the Equality Act 2010 guidance on matters to be taken into account in determining questions relating to the definition of disability include "mental health conditions with symptoms such as anxiety, low mood, panic attacks, phobias, or unshared perceptions; eating disorders; bipolar affective disorders; obsessive compulsive disorders; personality disorders; post-traumatic stress disorder, and some self-harming behaviour" and "mental illnesses, such as depression and schizophrenia". Now that there is no longer a requirement to show that an impairment resulting from, or consisting of, a mental illness results from a clinically well-recognised illness, a claimant need establish only that they have a mental impairment. Following the decision in Millar v Inland Revenue Commissioners [2006] IRLR 112 CS under the repealed Disability Discrimination Act 1995, it is not necessary to show the cause of that impairment. However, a claimant is likely to have to provide substantial evidence of an impairment, which will usually include medical evidence: Beales v The Secretary of State for Work and Pensions EAT/0602/05 (decided under the repealed Disability Discrimination Act 1995) (see Medicals). In J v DLA Piper UK LLP [2010] IRLR 936 EAT, which was also decided under the repealed Disability Discrimination Act 1995, the EAT distinguished between symptoms of low mood and anxiety attributable to what is generally referred to as clinical depression (which is a mental impairment), and symptoms of low mood and anxiety attributable to adverse circumstances, which would not amount to a mental impairment. The EAT stated that, where there is doubt as to the existence of an impairment, tribunals should first consider the adverse effect issue ie whether or not the employee's ability to carry out normal day-to-day activities has been adversely affected for twelve months or longer. The EAT stated that this would be likely to highlight the distinction between a mental impairment and a reaction to adverse circumstances since "it is a common-sense observation that such reactions are not normally long-lived". In Saad v (1) University Hospital Southampton NHS Trust (2) Health Education England EAT/0184/14, the employee suffered from a depressive and general anxiety disorder. However, the employment tribunal found that this did not have a substantial adverse effect on his ability to carry out normal day-today activities and therefore did not amount to a disability. On appeal, the employee argued that the tribunal "did not assess the effects of the impairment on his work environment or his work-related activities" and that, had it done so, it would have found that the impairment "did substantially impact on his ability to communicate with colleagues and access the workplace". He also submitted that the tribunal had found that there was a problem with concentration which, he argued, also "indicated that the impairment had a substantial adverse effect". Having regard to the evidence, including the employee's responses to cross-examination, the EAT dismissed the appeal, holding that the employment tribunal "did consider the impact on the [employee's] workplace-related activities including his ability to communicate with colleagues and access the workplace and his concentration … [and] was entitled to conclude on the evidence that the impairment did not have substantial adverse effects".

In Herry v Dudley Metropolitan Council EAT/0100/16, the EAT held that the employment tribunal had correctly drawn the distinction identified in J v DLA Piper UK LLP [2010] IRLR 936 EAT between stress as a mental impairment and stress as a "reaction to life events". The EAT stated that "unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise … are not of themselves mental impairments: they may simply reflect a person's character or personality". Dismissing the appeal, the EAT concluded that the tribunal was entitled to find that Mr Herry's stress was "very largely a result of his unhappiness about what he perceives to have been unfair treatment of him, and to that extent is clearly a reaction to events".

Day-to-day activities

Even if there is a mental or physical impairment, it will be regarded as a disability in terms of the Equality Act 2010 only if it has a substantial adverse impact upon the employee's day-to-day activities. This is assessed on an individual basis so that what for one employee would amount to a disability may not be assessed as a disability for another employee. The focus should be on the disabling effects in the individual case not just the disorder itself.

A person is a "disabled person" only if the impairment has an adverse effect on their "normal day-to-day activities". The Equality Act 2010, unlike the repealed Disability Discrimination Act 1995, does not prescribe what may constitute a day-to-day activity. Section D of the Equality Act 2010 guidance on matters to be taken into account in determining questions relating to the definition of disability provides guidance on the meaning of the term, together with illustrative examples. The guidance states that: "In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern."

In Mutombo-Mpania v Angard Staffing Solutions Ltd EATS/0002/18, the EAT upheld the tribunal decision that the employee, who had essential hypertension, had not discharged the burden of proving that he was disabled within the meaning of the Equality Act 2010. The EAT held that, while working a night shift could be a normal day-to-day activity, the employee had failed to provide evidence and "simply gave no insight into any limitations on his day-to-day activities by [his] physical impairment".

In Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763 EAT (decided under the repealed Disability Discrimination Act 1995), the EAT held that a senior policeman who was diagnosed with minor dyslexia was disabled within the meaning of the Act. Medical evidence suggested that he ought to be given 25% extra time in his examination for promotion to the rank of superintendent as a result of his (newly diagnosed) dyslexia. The EAT said that a tribunal should not compare the performance of the employee with that of the average person in the population. It is the comparison between what the individual can do and what they would be able to do without the impairment that is important in determining whether or not they are disabled. The EAT concluded that it was self-evident that a person who needed 25% longer to complete an examination because of his dyslexia was at a substantial disadvantage, and was therefore disabled. Further, following Chacón Navas v Eurest Colectividades SA [2006] IRLR 706 ECJ, in which the ECJ said that the definition of an impairment includes when "participation in professional life is hindered over a long period of time", the EAT held that sitting exams was a day-to-day activity even though it related to the claimant's professional life and was infrequent. In Chief Constable of Lothian and Border Police v Cumming [2010] IRLR 109 EAT (decided under the repealed Disability Discrimination Act 1995), the EAT clarified that neither Paterson nor Chacón Navas provides that participation in a particular professional life, on its own, amounts to a day-to-day activity.

In Sobhi v Commissioner of the Police of the Metropolis EAT/0518/12 (decided under the repealed Disability Discrimination Act 1995), the EAT applied Chacón Navas and Paterson in overturning the employment tribunal decision that a prospective police constable with dissociative amnesia who failed to disclose a previous conviction was not disabled. The tribunal had held that Ms Sobhi was not disabled because there was "absolutely no evidence that her normal day-to-day activities outside the work place are adversely affected by the dissociative amnesia". However, applying Chacón Navas, the EAT held that: "Although Ms Sobhi's loss of memory was limited to just one aspect of her past, her loss of memory in that respect had an adverse and long-term effect on any activity of hers which required her to recall whether she had any previous convictions. One of those activities was applying to become a police constable. That was an activity to which the definition of disability in s.1(1) of the 1995 Act should be treated as applying because, despite its language, a person must be regarded as a disabled person if their condition has a substantial and long-term adverse effect on any activity of theirs which relates to their effective participation in professional life. Such an activity must include Ms Sobhi's application to become a police constable." The case was remitted to the tribunal, which needed to consider whether or not the effect of the impairment on Ms Sobhi's normal day-to-day activities was "substantial".

The EAT in Ekpe v Commissioner of Police of the Metropolis [2001] IRLR 605 EAT (decided under the repealed Disability Discrimination Act 1995), said that "normal" is anything that is not abnormal or unusual. What is normal does not depend on whether or not the majority of people do it. It held that the employment tribunal in the case had been wrong to discount the fact that the claimant could not put rollers in her hair and could not always use her right hand to apply make-up on grounds that neither was a "normal day-to-day activity" because they are activities carried out almost exclusively by women. The EAT said that anything done by most women or most men is a normal day-to-day activity. This case is reflected in section D of the Equality Act 2010 guidance on matters to be taken into account in determining questions relating to the definition of disability, which states that: "it is possible that some activities might be carried out only, or more predominantly, by people of a particular gender, such as breast-feeding or applying make-up, and cannot therefore be said to be normal for most people. They would nevertheless be considered to be normal day-to-day activities."

Playing any particular sport or game, certainly to a high level of ability, is not a normal day-to-day activity, although a person who suffers from an impairment of mobility that prevents him or her from engaging in any "normal endeavours at fitness" will probably be disabled: Coca-Cola Enterprises Ltd v Shergill EAT/0003/02 (decided under the repealed Disability Discrimination Act 1995). The Equality Act 2010 guidance on matters to be taken into account in determining questions relating to the definition of disability states that activities that "are themselves highly specialised or involve highly specialised levels of attainment ... would not be regarded as normal day-to-day activities for most people". This would include "playing a particular sport to a high level of ability, such as would be required for a professional footballer or athlete".

A tribunal can consider the claimant's ability to perform day-to-day tasks at work, although not all working activities - for example lifting heavy weights - amount to day-to-day activities: Cruickshank v VAW Motorcast Ltd [2002] IRLR 24 EAT (decided under the repealed Disability Discrimination Act 1995). The Equality Act 2010 guidance on matters to be taken into account in determining questions relating to the definition of disability provides that: "In some instances work-related activities are so highly specialised that they would not be regarded as normal day-to-day activities."

In Chief Constable of Dumfries & Galloway Constabulary v Adams [2009] IRLR 612 EAT (decided under the repealed Disability Discrimination Act 1995), the EAT held that an activity that a person does only at work may be classed as "normal" if it is common to different types of employment. The EAT upheld the tribunal's decision that a police constable who suffered from myalgic encephalomyelitis (ME) and had problems with walking, climbing stairs, driving and undressing between about 2am and 4am, while working night shifts, was disabled. It stated that these were "very ordinary physical activities at work at a time of night when there are many other people in other forms of employment doing the same thing". The Equality Act 2010 guidance on matters to be taken into account in determining questions relating to the definition of disability makes it clear that although certain activities such as "getting out of bed and getting dressed are activities that are normally associated with the morning" they would still be considered to be normal day-to-day activities when "carried out much later in the day by workers who work night shifts".

In Chief Constable of Lothian and Border Police v Cumming [2010] IRLR 109 EAT (decided under the repealed Disability Discrimination Act 1995), a special constable failed to meet the specific sight requirement to become a regular constable. The EAT held that neither the employee's inability to meet the requirement nor the employer's refusal to allow the employee to proceed to the next stage of her development (as a result of her failure to meet the requirement) constituted an adverse effect on her ability to carry out normal day-to-day activities. The EAT went on to state that, in contrast with the affected activities in Chief Constable of Dumfries & Galloway Constabulary v Adams [2009] IRLR 612 EAT (decided under the repealed Disability Discrimination Act 1995), a specific sight requirement is not common to different types of employment.

Although highly-specialised work activities will not be normal day-to-day activities, the Equality Act 2010 guidance on matters to be taken into account in determining questions relating to the definition of disability explains that "many types of specialised work-related or other activities may still involve normal day-to-day activities which can be adversely affected by an impairment. For example they may involve normal activities such as: sitting down, standing up, walking, running, verbal interaction, writing, driving; using everyday objects such as a computer keyboard or a mobile phone, and lifting, or carrying everyday objects, such as a vacuum cleaner."

In Banaszczyk v Booker Ltd [2016] IRLR 273 EAT, a warehouse picker was required to lift and move by hand items weighing up to 25kg. The employee's back condition affected his ability to achieve the employer's target or "pick rate" of 210 items per hour and he was dismissed on capability grounds. The employment tribunal accepted that the employee suffered from a long-term impairment but concluded that the impairment did not have a substantial adverse effect on the employee's ability to carry out normal day-to-day activities and that the employee was not disabled within the meaning of the Equality Act 2010. The EAT overturned the employment tribunal decision. It held that the employer's contention that the pick rate meant that his work was not a normal day-to-day activity confused "the activity itself with a particular requirement of an employer as to the speed with which the activity is performed" (ie the pick rate). The activity was not the pick rate but the manual lifting and moving of items. This was a normal day-to-day activity in the context of work. The substantial effect was that the employee's back condition caused him to be significantly slower in carrying out the activity (than he would have been but for the impairment). The pick rate was not the activity but was "potentially a barrier which interacted with the claimant's disability to hinder his full participation in working life". Applying Chacón Navas v Eurest Colectividades SA [2006] IRLR 706 ECJ, Ring v Dansk almennyttigt Boligselskab DAB; Skouboe Werge v Dansk Arbejdsgiverforening Cases C-335/11 and C-337/11 ECJ and Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763 EAT, the EAT concluded that the employee was disabled within the meaning of the Equality Act 2010.

Substantial and long term

The effect on the ability to carry out normal day-to-day activities must be both "substantial" and "long term".

What is substantial is a question of fact and evidence for the tribunal to determine. In Vicary v British Telecommunications plc [1999] IRLR 680 EAT (decided under the repealed Disability Discrimination Act 1995), the EAT allowed the employee's appeal where the employment tribunal had simply followed the opinion of the medical expert as to whether or not the impairment would have a substantial effect on normal day-to-day activities. It is a matter for the employment tribunal to address not the doctor.

Section 212 of the Equality Act 2010 states that a "substantial" effect is one that is more than "minor" or "trivial".

In Aderemi v London and South Eastern Railway Ltd EAT/0316/12, the EAT observed that the Equality Act 2010 does not create a sliding scale between matters that are clearly of substantial effect and those that are clearly trivial but provides, in effect, for only two outcomes: "unless a matter can be classified as within the heading 'trivial' or 'insubstantial', it must be treated as substantial". The EAT commented that both the Equality Act 2010 guidance on matters to be taken into account in determining questions relating to the definition of disability (which applies to unlawful acts of discrimination or harassment that arose on or after 1 May 2011) and the previous guidance attempt to assist tribunals and others "by contrasting those matters [that] are clearly trivial and insubstantial ... with those [that] are clearly substantial". This might wrongly "be taken to indicate that there is something of a sliding scale between the two, wherein the process of assessment may operate". However, in the EAT's view, the guidance is relevant only for the purposes of asking "whether a matter can be regarded as trivial or insubstantial: if not, it will be substantial if it is of effect [on] normal day-to-day activities".

Section D of the Equality Act 2010 guidance on matters to be taken into account in determining questions relating to the definition of disability "provides guidance on what should be taken into account in deciding whether a person's ability to carry out normal day-to-day activities might be restricted by the effects of that person's impairment", together with illustrative examples. The appendix to the guidance gives examples of where it would and would not be reasonable "to regard the adverse effect on the ability to carry out a normal day-to-day activity as substantial".

The focus required by the Act is on the things that the claimant cannot do or can do only with difficulty, rather than on the things that the person can do: Goodwin v The Patent Office [1999] IRLR 4 EAT (decided under the repealed Disability Discrimination Act 1995). This was confirmed by the EAT in Aderemi v London and South Eastern Railway Ltd EAT/0316/12.

Appendix one to the Employment statutory code of practice explains that while a person may still be able to carry out a normal day-to-day activity, they might suffer pain or fatigue in doing so and in that way the impairment may have a substantial adverse effect on how that activity is carried out. Section B of the Equality Act 2010 guidance on matters to be taken into account in determining questions relating to the definition of disability provides that consideration should be given to the time taken to carry out the activity and the way in which the activity is carried out, and a comparison made with how the activity might be expected to be carried out if the person did not have the impairment. An impairment may not have a substantially adverse effect on one activity but, as noted in section D of the guidance, "the person may be affected in a minor way in a number of different activities, and the cumulative effect could amount to a substantial adverse effect" on the person's ability to carry out normal day-to-day activities.

The cumulative effect of two or more minor impairments may give rise to a substantial adverse effect. The guidance states that: "A person may have more than one impairment, any one of which alone would not have a substantial effect. In such a case, account should be taken of whether the impairments together have a substantial effect overall on the person's ability to carry out normal day-to-day activities."

In Norris v Sussex Partnership NHS Foundation Trust EAT/0031/12, the EAT overturned the employment tribunal's finding that the employee's increased susceptibility to infections as a result of Selective IgA, which is a deficiency of the immune system, amounted to a disability for the purposes of the Equality Act 2010. The EAT was satisfied that the causal link between the impairment and the substantial and long-term adverse effect on the ability to carry out day-to-day activities does not have to be direct, but may be indirect. However, the tribunal's conclusion that the increased frequency of infections would itself have the required substantial effect was not supported by the evidence.

There are express provisions in sch.1 to the Equality Act 2010 in relation to what is meant by "long term". Generally, the effect of an impairment is "long term" if it has lasted or is likely to last for at least 12 months or for the rest of the life of the person affected The Equality Act 2010 guidance on matters to be taken into account in determining questions relating to the definition of disability states that "likely" should be interpreted as meaning that "it could well happen".

In Nissa v Waverly Education Foundation Ltd and another EAT/0135/18, the EAT held that, when determining if the effect of the claimant's impairments was long term, the tribunal had focused on the question of diagnosis rather than the effects of the impairments, and it had adopted a narrow view rather than looking at the reality of the risk that it "could well happen" on a broader view of the evidence available. The EAT found that the tribunal had also viewed the issues with the "benefit of hindsight".

In Daouidi v Bootes Plus SL and others [2017] IRLR 151 ECJ, the employee was dismissed purportedly for poor performance when he was temporarily incapacitated for work due to a workplace accident that had occurred nearly two months earlier. The Spanish domestic court asked the European Court of Justice (ECJ) whether or not Mr Daouidi's condition could come within the definition of a disability under the Equal Treatment Framework Directive (2000/78 EC) when the length of his incapacity was uncertain. The ECJ held that that a person who is temporarily incapacitated for work for an indeterminate period can count as disabled. However, the worker's incapacity has to be sufficiently "long term", which is a question of fact in each case and depends on the definition under the domestic law in each EU country. The ECJ accepted that national courts must base their decision on objective evidence, particularly current medical and scientific knowledge and data.

Paragraph 2 of sch.1 to the Act provides that an impairment that has ceased to have a substantial adverse effect is to be treated as continuing to have that effect if the effect is likely to recur, which, as explained in appendix one to the Employment statutory code of practice, means "might well recur". Section C of the Equality Act 2010 guidance on matters to be taken into account in determining questions relating to the definition of disability provides that in assessing the likelihood of an effect lasting for 12 months "account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood. Account should also be taken of both the typical length of such an effect on an individual, and any relevant factors specific to this individual (for example, general state of health or age)."

The effect may be judged as long term even if the symptoms are not continuous, provided that they are likely to recur. In assessing the likelihood of a recurrence of a condition, the Court of Appeal in Richmond Adult Community College v McDougall [2008] IRLR 227 CA (decided under the repealed Disability Discrimination Act 1995) held that a tribunal should take into account only those events up to the alleged discrimination. In Norris v Sussex Partnership NHS Foundation Trust EAT/0031/12, the EAT held that the evidence did not support the employment tribunal's conclusion that substantial adverse effects caused by the employee's impairment in the past were likely to recur.

In Patel v Oldham Metropolitan Borough Council and another [2010] IRLR 280 EAT (decided under the repealed Disability Discrimination Act 1995), the employment tribunal found that there were two periods during which the employee suffered from a physical impairment that had a substantial adverse effect on her normal day-to-day activities, but that they did not last, and could not be said to have been likely to have lasted, for at least 12 months. Accordingly, the tribunal concluded that the employee was not disabled for the purposes of the Disability Discrimination Act 1995. Noting that there was no authority on this point, the EAT held that "the duration of the effects of an impairment which is likely to develop or which has developed from a different impairment" may be aggregated with the duration of the adverse effects of the original impairment to assess whether or not the effect of the original impairment is likely to last or has lasted for at least 12 months. The EAT allowed the employee's appeal and remitted the case to the tribunal to determine this issue on the facts. The Equality Act 2010 guidance on matters to be taken into account in determining questions relating to the definition of disability states that: "The cumulative effect of related impairments should be taken into account when determining whether the person has experienced a long-term effect for the purposes of meeting the definition of a disabled person. The substantial adverse effect of an impairment which has developed from, or is likely to develop from, another impairment should be taken into account when determining whether the effect has lasted, or is likely to last at least twelve months, or for the rest of the life of the person affected."

Additional resources on substantial and long term

Quick Reference

Progressive conditions

Paragraph 8 of sch.1 to the Equality Act 2010 provides that where a person has a "progressive condition" and, as a result of that condition, they have an impairment that has (or had) an effect on their ability to carry out normal day-to-day activities, but that effect is not (or was not) a substantial adverse effect, such a person is to be treated as having an impairment that has such a substantial adverse effect if the condition is likely to result in that person having such an impairment in the future. The Equality Act 2010 guidance on matters to be taken into account in determining questions relating to the definition of disability states that: "Medical prognosis of the likely impact of the condition will be the normal route to establishing protection under this provision." The guidance goes on to confirm that the effect need not be continuous or substantial. In a decision under the repealed Disability Discrimination Act 1995, it was held that it is not enough for the claimant to establish that they have a progressive condition and that it has or has had an effect on their ability to carry out day-to-day activities. They must go on to show that it is more likely than not that at some stage in the future they will have an impairment that will have a substantial adverse effect on their ability to carry out normal day-to-day activities. The claimant may be able to do this through medical evidence of their likely prognosis or through statistical evidence: Mowat-Brown v University of Surrey [2002] IRLR 235 EAT (a claimant with multiple sclerosis did not establish that it was more likely than not that in the future the condition would have a substantial adverse effect on his ability to carry out day-to-day activities, so was held not to have a disability as defined in the Disability Discrimination Act 1995). Multiple sclerosis is a deemed disability under the Equality Act 2010.

The Court of Appeal in Kirton v Tetrosyl Ltd [2003] IRLR 353 CA (which was decided under repealed Disability Discrimination Act 1995) held that Mr Kirton, who had mild incontinence resulting from an operation for prostate cancer, was to be treated as having a disability under the provisions dealing with progressive conditions. Although the impairment arose because of surgery rather than from the progressive cancer itself, the impairment still arose "as a result of that condition". Cancer and some other progressive conditions are now deemed to be a disability.

The Equality Act 2010 guidance on matters to be taken into account in determining questions relating to the definition of disability states that: "Examples of progressive conditions to which the special provisions [in para.8 of sch.1 to the Equality Act 2010] apply include systemic lupus erythematosis, various types of dementia, and motor neurone disease." This list is not exhaustive.

In Taylor v Ladbrokes Betting & Gaming Ltd EAT/0353/15, the Employment Appeal Tribunal (EAT) allowed an appeal against the tribunal decision that an employee with type 2 diabetes was not disabled. The EAT held that the tribunal had misinterpreted the medical evidence when deciding whether or not the employee's type 2 diabetes was a progressive condition (within the meaning of para.8 of sch.1 to the Equality Act 2010), which was likely to result in his having an impairment. The EAT concluded that "even if there is a small possibility of deterioration in a population that is enough to make it likely that it might result in the particular individual having such an impairment". The EAT held that the medical evidence did not address this issue and remitted the case back to the tribunal for reconsideration in the light of further medical evidence.

Conditions that are deemed to be a disability

People diagnosed with the progressive conditions of HIV infection, multiple sclerosis and cancer are deemed to be disabled whether or not the condition has yet begun to have any effect on their ability to carry out day-to-day activities.

Paragraph 3 of sch.1 to the Equality Act 2010 provides that an impairment that consists of a severe disfigurement is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities. However, reg.5 of the Equality Act 2010 (Disability) Regulations 2010 (SI 2010/218) provides that tattoos and body piercings are not to be treated as having such a substantial adverse effect.

Hutchinson 3G UK Ltd v Edwards EAT/0467/13, concerned an employee with "Poland syndrome; having been born with his entire major left pectoral chest muscle missing, along with the sternal head on the left side of his chest and two ribs, giving rise to a marked asymmetry in the appearance of his chest". Upholding the employment tribunal decision that this condition amounted to a severe disfigurement, the Employment Appeal Tribunal held that the tribunal was entitled to be satisfied with the description in the GP's report, as well as the employee's own description, and was not "obliged to carry out further inspection itself of the disfigurement". Further, while the test "was not simply what the claimant believed to be the case - it is not a subjective test" in assessing the severity of the disfigurement. The "tribunal was entitled to take into account the effect it had on the [employee]... it was thus not irrelevant to take into account, as here, evidence that the young man's condition was sufficiently noticeable that, at school, other pupils pointed it out and abused him, calling him 'freak', 'monster' and so on", together with "evidence from the claimant as to how the disfigurement had impacted upon his personal relationships as an adult" and the fact that the claimant went to substantial lengths to conceal his condition.

The Equality Act 2010 (Disability) Regulations 2010 provide that a person is deemed to have a disability for the purposes of the Equality Act 2010 if they are certified as "blind, severely-sight impaired or partially sighted by a consultant ophthalmologist".

Additional resources on conditions that are deemed to be a disability

FAQs

Policies and documents

Medical treatment

When assessing the substantial effect of an impairment to assess whether or not it is a disability the effect of any medical treatment that the employee is receiving should be disregarded.

The Equality Act 2010 provides that an impairment that would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities but for the fact that "measures are being taken to treat or correct it" is to be treated as having that effect.

"Measures" are defined as including medical treatment or the use of a prosthesis or other aid.

The Employment Appeal Tribunal has used the term "deduced effects" for such cases.

In Kapadia v London Borough of Lambeth [2000] IRLR 14 EAT (decided under the repealed Disability Discrimination Act 1995), the claimant suffered from depression for which he had attended counselling sessions. It was found that the counselling sessions amounted to medical treatment and that there was evidence that without such sessions Mr Kapadia would have had a mental breakdown and required psychiatric treatment, including in-patient treatment. Taking into account the deduced effects, the impairment had a substantial adverse effect.

In Poulton v Walton [1998] ET/1805515/97 (decided under the repealed Disability Discrimination Act 1995), it was found that the term medical treatment could also apply to a special diet that the claimant was following to avoid the effects of diabetes. Appendix one to Employment statutory code of practice refers to someone with an impairment receiving "medical or other treatment which alleviates or removes the effect (though not the impairment)". However, in Metroline Travel Ltd v Stoute [2015] IRLR 465 EAT, the EAT held that "type 2 diabetes per se does not amount to a disability". It noted that "the employment tribunal applied para.B12 of the statutory guidance", which provides that an impairment that is the subject of treatment or correction is "to be treated as having a substantial adverse effect if but for the treatment or correction the impairment was likely to have that effect" but that the employment tribunal had not had regard to para.B7, which provides that: "Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities". The EAT added that "while a particular diet may be regarded as something which is to be ignored when considering the adverse effects of a disability, [it did] not consider that abstaining from sugary drinks is sufficient to amount to a particular diet which therefore does not amount to treatment or correction".

The provisions in relation to the effects of treatment expressly do not extend to the impairment of a person's sight to the extent that the impairment is capable of correction by spectacles or contact lenses.

Excluded conditions

The Equality Act 2010 (Disability) Regulations 2010 (SI 2010/2128) provide specific exclusions of conditions that might otherwise fall into the definition of disability under the Act.

Addiction, including a dependency on alcohol, nicotine or any other substance, is to be treated as not amounting to an impairment for the purposes of the Act. The exception to this exclusion is where the addiction was originally the result of administration of medically prescribed drugs or other medical treatment. This may cover an addiction to painkillers or tranquillisers.

Although the addiction itself is not to be regarded as an impairment, if the addiction results in another impairment and the person is disabled within the meaning of the Equality Act 2010 because of the effects of that impairment, that person is entitled to the protection of the Act. The Employment Appeal Tribunal (EAT) confirmed in Power v Panasonic UK Ltd [2003] IRLR 151 EAT (decided under the repealed Disability Discrimination Act 1995) that it does not matter how the impairment was caused. It allowed an appeal against an employment tribunal's decision that a claimant was not disabled because it thought that alcohol addiction had led to her depression. The EAT said that what is material is to ascertain whether the disability from which the person is suffering at the material time is a disability within the meaning of the Act or whether, where it is relevant, it is an impairment which is excluded by reason of the Disability Discrimination (Meaning of Disability) Regulations 1996 from being treated as such. Excluded conditions under the Equality Act 2010 are dealt with in the Equality Act 2010 (Disability) Regulations 2010.

Seasonal Allergic Rhinitis, better known as hay fever, is also expressly excluded from being treated as an impairment, except where it aggravates the effect of another condition.

Tattoos and body piercings are not to be treated as severe disfigurements having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities.

The Equality Act 2010 (Disability) Regulations 2010 also exclude the following conditions:

  • tendency to set fires, steal, or physically or sexually abuse other persons;
  • exhibitionism or voyeurism.

There is conflicting authority at EAT level on the position of exempted conditions that are manifestations of protected disabilities. The EAT in Murray v Newham Citizens Advice Bureau Ltd [2003] IRLR 340 EAT (decided under the repealed Disability Discrimination Act 1995) held that the exclusions apply only to "free-standing" conditions, ie they do not apply if the condition is a consequence of a physical or mental impairment within the meaning of s.1(1) of the Disability Discrimination Act 1995, or, now within the meaning of s.6 of the Equality Act 2010. The EAT held that a person with a tendency to violence as a consequence of the well-recognised mental illness of paranoid schizophrenia was disabled for the purposes of the Act.

However, in Edmund Nuttall Limited v Butterfield [2005] IRLR 751 EAT (decided under the repealed Disability Discrimination Act 1995), the EAT said that the concept in Murray that the exclusions refer only to "free-standing" conditions and not to those conditions that are the direct consequence of a physical or mental impairment is not helpful. It said that the critical question is one of causation: what was the reason for the less favourable treatment? If the reason was the legitimate impairment, then that is prima facie discrimination. If the reason was the excluded condition and not the legitimate impairment then the claim fails. If the legitimate impairment was an effective cause of the less favourable treatment, even if the excluded condition was also a reason for the less favourable treatment, there is prima facie discrimination. In Butterfield there was no discrimination because the less favourable treatment was due to the employee's exhibitionism not to the underlying depression. The employer had been content for the employee to continue working when it learned of his depression. Only when it learned of his convictions for indecent exposure did it take the decision to dismiss him.

In Governing Body of X Endowed Primary School v Special Educational Needs and Disability Tribunal and others [2009] IRLR 1007 HC, which was decided under the repealed Disability Discrimination Act 1995 in an educational context, the High Court preferred the approach adopted by the EAT in Butterfield to that adopted in Murray. In Governing Body of X Endowed Primary School, a child with attention deficit and hyperactivity disorder, which is a protected disability, was excluded from school after scratching a member of staff. The High Court stated that the legal protection against disability discrimination "is not intended to extend to excluded conditions [in this case a tendency to physically abuse others] whether or not they are manifestations of an underlying protected impairment [in this case attention deficit and hyperactivity disorder]". However, on the facts, the High Court upheld the tribunal's findings that the school had discriminated against the child by failing to implement reasonable adjustments in the form of calming and de-escalation techniques. The High Court stated that such steps related to the management of the child's attention deficit and hyperactivity disorder generally, and were not limited to managing his related tendency to physical abuse.

In Wood v Durham County Council EAT/0099/18, the EAT held that the employee's tendency to steal was a manifestation of his disability and an excluded condition under the Equality Act 2010 (Disability) Regulations 2010. The EAT agreed with the tribunal that, because the employee's tendency to steal "was the effective cause" of his dismissal, the critical question of causation was "answered and agreed" leaving "no lacuna or vacuum of the type that occurred" in both Butterfield and Governing Body of X Endowed Primary School.

In X v The Governing Body of a School [2015] UKUT 7 (AAC), which was decided under the education provisions of the Equality Act 2010, the Upper Tribunal (Administrative Appeals Chamber) had to consider whether or not the fact that the child's tendency to physically abuse other persons, which had arisen as a result of her autism (which a lower tribunal had found amounted to a disability), meant that it was a condition that should not be excluded. The Upper Tribunal followed Edmund Nuttall Limited v Butterfield [2005] IRLR 751 EAT, stating that the case "did not confuse the issue of causation with the statutory definition of disability. Rather, it correctly identified at what point the relevant causal issue arose." The Upper Tribunal held that, although the child's tendency to physical abuse arose in consequence of her autism, she was not to be treated as having an impairment.

Additional resources on excluded conditions

FAQs

Who is protected?

The Equality Act 2010 protects disabled people from discrimination, harassment and victimisation in certain defined circumstances. The Act also applies to people who have had a disability in the past, subject to certain modifications set out in sch.1 to the Act.

Section 13(3) provides that the act of treating a disabled person more favourably than a non-disabled person does not constitute discrimination.

The Equality Act 2010 provides protection against direct and indirect discrimination, harassment and victimisation in the fields of employment and vocational training to:

  • actual and prospective employees;
  • ex-employees;
  • apprentices;
  • some self-employed workers;
  • contract workers;
  • actual and prospective partners in a partnership or a limited liability partnership; and
  • people seeking or undertaking vocational training.

Job applicants are prospective employees and, therefore, protected under the Equality Act 2010. However, in Kratzer v R+V Allgemeine Versicherung AG [2016] IRLR 888 ECJ, the European Court of Justice held that a person who applies for a job with the sole purpose of making an application for compensation for discrimination is not covered by the Equal Treatment Framework Directive (2000/78/EC) or the Equal Opportunities and Equal Treatment Directive (2006/54/EC). Such a person may be considered as having committed an abuse of rights under EU law. Following Kratzer, vexatious discrimination claims will be unsuccessful where the candidate is unable to demonstrate a genuine interest in the position. However, employers will need to consider carefully each recruitment decision, given the potential difficulty in identifying which claims are vexatious.

In Uber BV and others v Aslam and others [2019] IRLR 257 CA, the Court of Appeal held that Uber taxi drivers are "workers" within the meaning of s.230 of the Employment Rights Act 1996 and, as such, are entitled to statutory rights arising from that status. Since the definition of employment in s.83 of the Equality Act 2010 includes, in effect, a wider definition of "worker" than that contained in s.230 of the Employment Rights Act 1996, the drivers would also be covered by discrimination legislation.

It is assumed that a voluntary worker who has a contract to carry out work personally will be protected under the Equality Act 2010. However, in X v Mid Sussex Citizens Advice Bureau and another [2013] IRLR 146 SC, the Supreme Court held that a voluntary worker without a legally binding contract who, accordingly, was not an employee under the now repealed Disability Discrimination Act 1995 was not protected by the Equal Treatment Framework Directive (2000/78/EC) because it is clear that the Directive does not cover voluntary activity. The Supreme Court went on to state that a reference to the European Court of Justice was not justified. In Breakell v Shropshire Army Cadet Force EAT/0372/10, the Employment Appeal Tribunal (EAT) confirmed that a paid volunteer is not an employee within the meaning of s.68(1) of the repealed Disability Discrimination Act 1995 where there is no mutuality of obligation between the parties.

In EAD Solicitors LLP and others v Abrams [2015] IRLR 978 EAT, an age discrimination claim, the sole director and principal shareholder of a limited company brought a discrimination complaint in the name of the company through which he was providing his services (as well as in his own name). The EAT held that a limited company can bring a claim of direct discrimination under the Equality Act 2010. Although a limited company does not itself have the protected characteristics identified in the Equality Act 2010, the EAT held that it could bring a claim of direct discrimination on the ground that it suffered detrimental treatment because of its association with someone having a protected characteristic.

There are special provisions in the Act dealing with office-holders, the police, barristers and advocates, trade organisations, qualifications bodies and employment-service providers. The Act's employment provisions relating to disability do not apply to members of the armed forces.

Additional resources on who is protected?

FAQs

Recipients or (intended) victims of instructions to discriminate

Section 111 of the Equality Act 2010 prohibits a person from instructing, causing or inducing another person to discriminate, harass or victimise a third person. The Equality Act 2010 explanatory notes state that s.111 provides a remedy "for both the recipient of the instruction and the intended victim, whether or not the instruction is carried out, provided the recipient or intended victim suffers detriment as a result". While the express power allowing the intended victim to bring proceedings is new, the express power allowing the recipient of such instructions to bring proceedings is intended to codify the position established in Weathersfield Ltd t/a Van & Truck Rentals v Sargent [1999] IRLR 94 CA (a case decided under the repealed Race Relations Act 1976). Mrs Sargent resigned from her job as a receptionist with a car-hire firm when she was instructed to tell black or Asian callers that there were no cars available for them to hire. The Court of Appeal upheld her claim of race discrimination, stating that she had been less favourably treated than a person willing to carry out the discriminatory policy and that she had been put in an intolerable position as a result.

Discrimination, harassment and victimisation because of disability by trustees and managers of occupational pension schemes are also prohibited by s.61 of the Equality Act 2010.

Employees and workers

"Employment" is defined under s.83(2) of the Equality Act 2010 as meaning: employment under a contract of employment or of apprenticeship or a contract personally to do any work; or employment as a Crown employee or as a "relevant member" of the House of Commons or House of Lords staff. This is an extended definition compared to the one that is used in s.230(3)(b) of the Employment Rights Act 1996 and other employment legislation.

In Windle and another v Secretary of State for Justice [2016] IRLR 628 CA, the Court of Appeal considered the definition of employees "in the extended sense" under s.83(2)(a) of the Equality Act 2010, that is those who are engaged on a contract "personally to do work". The case concerned professional interpreters who undertook work for Her Majesty's Courts and Tribunals Service (HMCTS) on a case-by-case basis, whereby "HMCTS was under no obligation to offer them work; nor were they under any obligation to accept it when offered". The Court of Appeal restored the employment tribunal decision that the interpreters were not employees within the meaning of the Equality Act 2010. The Court of Appeal held that the absence of mutuality of obligation between the parties outside the period during which work is being done may "influence, or shed light on, the character of the relationship within it". The Court of Appeal concluded that "the fact that a person supplying services is only doing so on an assignment-by-assignment basis may tend to indicate a degree of independence, or lack of subordination, in the relationship while at work which is incompatible with employee status even in the extended sense".

In Pimlico Plumbers Ltd and another v Smith [2018] UKSC 29 SC, the Supreme Court noted that, while s.83(2) of the Equality Act 2010 defines "employment" in terms different from those descriptive of the concept of a "worker" under s.230(3)(b) of the Employment Rights Act 1996 (see Workers (in Determining employment status)) and other employment legislation, "this distinction has been held to be one without a difference" and the meaning is essentially the same. In Pimlico, the Supreme Court upheld the employment tribunal decision that a "sub-contracted" plumber was a worker within the meaning of s.230(3)(b) of the 1996 Act and s.83(2)(a) of the 2010 Act because the dominant feature of the plumber's contract was an obligation of personal performance. The tribunal was entitled to conclude that Pimlico Plumbers could not be regarded as a client or customer of the plumber because of its "tight control" over him.

Where a contract described car valeters as sub-contractors, the Supreme Court held that the employment tribunal was entitled to look behind the contractual terms to ascertain the reality of the situation. On the facts, the valeters were held to be employees and/or workers and thus entitled to certain statutory rights (Autoclenz Ltd v Belcher & others [2011] IRLR 820 SC).

However, in Halawi v WDFG UK Ltd T/A World Duty Free [2015] IRLR 50 CA, the Court of Appeal upheld the employment tribunal decision that the claimant did not have "a contract personally to do work" under s.83 of the Equality Act 2010. Ms Halawi provided her services to the end user via a limited company which she had set up for that purpose. On the facts, she did not have any contract with either the first respondent (the end user) or with the second respondent (whose role, according to the Employment Appeal Tribunal (EAT), "was in effect that of an agent supplying workers to a third party to work in retail space controlled by the first respondent"). Dismissing her appeal, the Court of Appeal concluded that there is no incompatibility between s.83(2) of the Equality Act 2010 and EU law on the meaning of employment. It rejected an argument that there was a relationship of employment if the relationship was one of subordination, meaning a relationship of economic dependency and economic value to the enterprise. The Court of Appeal held that it was clear that there must be some obligation to perform work personally.

In Muschett v HM Prison Service [2010] IRLR 451 CA, the Court of Appeal held that an agency worker did not come within the definition of employment in s.78(1) of the now repealed Race Relations Act 1976 because he was not contractually obliged to provide services personally to the end user, HM Prison Service. He was not, therefore, able to bring a claim of race discrimination against it. The decision in Muschett is relevant to age discrimination cases under the Equality Act 2010, because the definition of employment in the Employment Equality (Age) Regulations 2006 (SI 2006/1031) and s.83(2) of the Equality Act 2010 is substantially the same. If employed by the agency, a person in Mr Muschett's position would be protected from discrimination by the end user as a contract worker under the Equality Act 2010.

Whether or not a minister of religion is an employee for the purposes of the Equality Act 2010 will depend on the facts of the case. In Percy v Church of Scotland Board of National Mission [2006] IRLR 195 HL, the House of Lords held that although an associate minister in a parish of the Church of Scotland did not have a "contract of service" she was an employee for the purposes of the (now repealed) Sex Discrimination Act 1975 because she had a "contract personally to execute any work or labour". However, in President of the Methodist Conference v Preston [2013] IRLR 646 SC, the Supreme Court held that, on the particular facts, Ms Preston (who was a Minister in the Redruth Circuit of the Methodist Church until 2009) did not have a contract at all and accordingly could not be an employee under the Employment Rights Act 1996 for the purposes of pursuing an unfair dismissal claim. Although this did not arise on the facts, the absence of a legally binding contract would also have denied employment status to Ms Preston pursuant to the broader definition under the Equality Act 2010. Similarly, in Sharpe v The Bishop of Worcester (in his corporate capacity) [2015] IRLR 663 CA, where a Reverend had brought complaints of unfair dismissal and detriment for "whistleblowing", the Court of Appeal held that there were "no features of the method of Reverend Sharpe's appointment, the duties imposed upon him by law or the means by which he could be deprived of his benefice which would support the existence of a contract between him and either the bishop or the diocesan board of finance".

Illegal contracts

Individuals employed under an illegal contract (eg where there is some form of tax evasion in the way the employee is paid) are not usually allowed, as a matter of public policy, to bring proceedings relying on the contract. However, an illegal contract does not necessarily prevent a claimant from bringing a claim for discrimination.

In Hall v Woolston Hall Leisure Ltd [2000] IRLR 578 CA (a sex discrimination case decided under the repealed Sex Discrimination Act 1975), the Court of Appeal held that the correct approach in cases involving illegality and statutory torts, such as claims for discrimination, required the tribunal to consider if the "claim arises out of or is so inextricably bound up or linked with the illegal conduct that the court could not permit the [claimant] to recover compensation without appearing to condone that conduct". The Court of Appeal held that the employee could proceed with her sex discrimination claim because although she knew that her employer had been defrauding the Inland Revenue by not paying tax on her behalf, she had been powerless to change the situation. In V v Addey & Stanhope School [2004] All ER (D) 561 (Jul) CA (a race discrimination case decided under the repealed Race Relations Act 1976), a contract made with an asylum seeker was found to be illegal because he had falsely indicated in his application form that he did not need a work permit. Applying Hall, the Court of Appeal held that the asylum seeker was prevented from bringing a race discrimination claim because, unlike the facts in Hall, the illegal conduct was that of the employee and the circumstances surrounding his claim were inextricably bound with the illegality of his conduct.

However, in Hounga v Allen and another [2014] IRLR 811 SC) (another race discrimination case decided under the repealed Race Relations Act 1976), the Supreme Court focused its attention on public policy considerations. Ms Hounga was a Nigerian national who obtained a six-month travel visa to the UK having made dishonest declarations as to her age, name and the purpose of her visit. Having no right to work in the UK, she then knowingly entered into an illegal employment contract. Overturning the decision of the Court of Appeal, the Supreme Court held that there was an insufficiently close connection between her immigration offences and her discrimination claims, because "the former merely provided the setting or context in which that tort was committed, and to allow her to recover for that tort would not amount to the court condoning what it otherwise condemns". Lord Wilson (with whom Lady Hale and Lord Kerr agreed) was of the opinion that "the considerations of public policy which militate in favour of applying the defence so as to defeat Miss Hounga's complaint scarcely exist". Observing that Ms Hounga might be regarded as a victim of trafficking, Lord Wilson added that although she had not been compelled to commit a crime, the Court of Appeal's decision to uphold the illegality defence "runs strikingly counter to the prominent strain of current public policy against trafficking and in favour of the protection of its victims". The Court said that "public policy in support of the application of that defence, to the extent that it exists at all, should give way to the public policy to which its application is an affront; and Miss Hounga's appeal should be allowed".

The EAT applied Hall in Wijesundera v (1) Heathrow 3PL Logistics Ltd (2) Natarajan EAT/0222/13, in concluding that illegality was no defence to the serious sexual harassment claims brought by Ms Wijesundera. The EAT held that the illegality test in tort "is a test which looks to see whether, on all the facts, and not just simply applying a causation test, the claim is inextricably bound up with the applicant's illegal conduct". With the exception of the dismissal claim, Mr Natarajan's actions "could not be said to be inextricably bound up with the [il]legal conduct, for there is nothing intrinsic about being an employee that leads to sexual harassment or freedom from it". The EAT added that the "fact of employment may have given rise to a practical opportunity for the acts to be committed".

The same approach is likely to be taken with claims of age discrimination under the Equality Act 2010.

Contract workers

These are individuals employed by a third party and whose services are supplied to a principal in furtherance of a contract either between the principal and the individual's employer, or the principal and another third party. It is not necessary for there to be a direct contractual relationship between the principal and the individual's employer.

Vocational trainees

An individual who is undergoing vocational training - defined by s.56 of the Equality Act 2010 as training for employment or work experience - is protected by s.55, which concerns the provision of employment services (including vocational training). In Treasury Solicitor's Department v Chenge [2007] IRLR 386 EAT (decided under the now repealed Race Relations Act 1976), the EAT held that an unpaid vacation placement scheme of 10 days was a work placement or work experience scheme, which was vocational training.

In Blackwood v Birmingham and Solihull Mental Health Foundation Trust EAT/0130/14, the EAT examined the relationship between the employment and the education protections in the Equality Act 2010. Ms Blackwood, a single parent, was a student at Birmingham City University undertaking a Diploma of Higher Education in Mental Health Nursing. As part of her course, she undertook a vocational placement with the trust, which the trust eventually withdrew because Ms Blackwood was unable to work the late night shift patterns due to her childcare commitments. She issued employment tribunal proceedings alleging indirect sex discrimination against both the trust (as a provider of vocational training) and the university as its alleged agent. The proceedings against the university were discontinued when it contended that it had to be sued in the County Court. The employment tribunal went on to hold that it lacked jurisdiction to hear the claim against the trust because Ms Blackwood's placement with the trust was arranged by the university, where she was a student. Accordingly, it was clear from s.56(5) of the Equality Act 2010 that her case against the trust fell within the education provisions of the Act and must be pursued in the County Court. The tribunal's reasoning was that Ms Blackwood was undertaking training or guidance "to which the governing body" of the university had "power to afford access". In this respect the tribunal interpreted "power" as "the ability to do something", and noted that the university was "clearly able to provide students with placements in hospital trusts" and had so placed Ms Blackwood. The EAT dismissed Ms Blackwood's appeal. However, the Court of Appeal overturned the EAT decision and held that s.56(5) should be construed so as to give effect to the Equal Treatment Framework Directive (2000/78/EC). The starting point is to identify whether the claim concerns discriminatory access to a work placement or whether it concerns discrimination occurring during the work placement. If the claim was that the university had failed to provide a work placement at all or had provided a work placement in a discriminatory way, such a claim could be brought only in the county court, under s.91 of the Equality Act 2010. In contrast, where the claim concerns discrimination by the work placement provider, in this case the trust, this should be brought under s.55 of the Equality Act 2010 and, therefore, in the employment tribunal. Where the alleged act of discrimination is committed by the provider as the agent of the university, the Court of Appeal held that "both the provider and the university will be liable by virtue of ss.109(2) and 110(1) [of the Equality Act 2010] respectively, but the liability will still arise under s.55, so that the employment tribunal will still be the correct forum whether the claimant chooses to proceed against only one of them or against both". The Court of Appeal concluded that "s.56(5) did not in this case operate to deprive the employment tribunal of jurisdiction to determine the appellant's complaint" (Blackwood v Birmingham & Solihull Mental Health NHS Foundation Trust [2016] IRLR 878 CA).

In X v Mid Sussex Citizens Advice Bureau and others [2011] EWCA Civ 28 CA, the Court of Appeal held that an unpaid volunteer at the Citizens Advice Bureau was not undertaking vocational training within the meaning of the Equal Treatment Framework Directive.

Territorial scope

The Equality Act 2010 is silent as to the territorial scope of its employment provisions. The Equality Act 2010 explanatory notes explain that this follows the precedent of the Employment Rights Act 1996 by leaving it "to tribunals to determine whether the law applies, depending for example on the connection between the employment relationship and Great Britain". This means that case law determining the territorial scope of the Employment Rights Act 1996 is relevant in determining the territorial scope of the Equality Act 2010 (see Employees excluded from the right (in Unfair dismissal)).

This approach was adopted in Clyde & Co LLP and another v Bates Van Winkelhof [2012] EWCA Civ 1207 CA. The Court of Appeal considered whether or not the employment tribunal had jurisdiction to hear claims of sex discrimination and/or pregnancy discrimination made by a former partner in a limited liability partnership, who "worked primarily outside the jurisdiction in Tanzania". The Court of Appeal referred to several authorities, which mainly addressed the territorial scope of certain claims under the Employment Rights Act 1996. Summarising the principles from case law, the Court of Appeal reaffirmed that, where the employee "is employed wholly abroad", it will be appropriate for the tribunal "to carry out a comparative exercise in which the factors which point towards a connection with Great Britain are compared with the factors pointing in favour of another jurisdiction". However, where the employee "lives and/or works for at least part of the time in Great Britain", as in the case of Ms Bates Van Winkelhof, it is not necessary to apply the comparative test as between the two jurisdictions. In the latter situation, the tribunal must be satisfied that the connection is "sufficiently strong to enable it to be said that Parliament would have regarded it as appropriate for the tribunal to deal with the claim" (Ravat v Halliburton Manufacturing and Services Ltd [2012] IRLR 315 SC). In Clyde & Co LLP, the Court of Appeal held that the tribunal was not required to carry out the comparative exercise and was correct in deciding that it had jurisdiction to hear the discrimination claims.

The test established under the Employment Rights Act 1996 may not be wide enough for the purposes of discrimination law rights, many of which are derived from European Union law. This was recognised in Bleuse v MBT Transport Ltd and another [2008] IRLR 264 EAT in which the EAT stated that, in respect of contracts governed by English law "an English court properly exercising jurisdiction must seek to give effect to directly effective rights derived from an EU Directive by construing the relevant English statute, if possible, in a way which is compatible with the right conferred". While acknowledging this issue, the Court of Appeal declined to address it in Clyde & Co LLP and another v Bates Van Winkelhof [2012] EWCA Civ 1207 CA as it was not necessary for its decision.

However, in R (on the application of Hottak and another) v Secretary of State for Foreign and Commonwealth Affairs and another [2016] IRLR 534 CA, the Court of Appeal did not consider that Parliament had intended the territorial scope of the employment-related discrimination provisions in part 5 of the Equality Act 2010 to extend further than the territorial reach of s.94(1) of the Employment Rights Act 1996 (ie the provisions on unfair dismissal). R (on the application of Hottak and another) concerned two Afghan nationals who were "locally employed staff" in Afghanistan and who sought judicial review of alleged discriminatory failures by the respondents. The Court of Appeal concluded that the fact that the claims were for discrimination did not require the court to "look upon the territoriality problems with greater sympathy than if they were unfair dismissal claims". The Court of Appeal added that "the cases in which s.94(1) (and therefore part 5) will extend to the employment contract of the foreign based employee are...truly exceptional".

In Ministry of Defence v Wallis and another [2011] EWCA Civ 231 CA, the Court of Appeal held that the employment tribunal was correct to decide that it had jurisdiction to hear claims of unfair dismissal and sex discrimination by two British employees who worked for the Ministry of Defence (MoD) in Belgium and the Netherlands. It stated that: "the claimants were employed by the MoD overseas in unusual circumstances that connected their employment with Great Britain to a degree that was sufficiently strong to bring them within the scope of protection of the British unfair dismissal legislation". The Court of Appeal also held that Mrs Wallis was entitled to effective judicial protection of her directly enforceable rights under the Equal Treatment Directive (76/207/EEC) (now the recast Equal Opportunities and Equal Treatment Directive (2006/54/EC)).

In Duncombe and others v Secretary of State for Children, Schools and Families (No. 2) [2011] IRLR 840 SC, the Supreme Court held that teachers who were employed in European schools outside Great Britain were entitled to bring unfair dismissal claims because they had an "overwhelmingly closer connection with Britain and with British employment law than with any other system of law".

In Pervez v Macquarie Bank Ltd (London Branch) and another [2011] IRLR 284 EAT, the EAT rejected the proposition that while an employee who was seconded to work in London by a Hong Kong-based employer was notionally protected under the Employment Rights Act 1996, the employment tribunal lacked jurisdiction to hear the employee's complaint because reg.19(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861) requires that "the respondent ... resides or carries on business in England and Wales". Overturning the tribunal on this point, the EAT held that "in the particular context of reg.19 a company can 'carry on business' in England and Wales by seconding an employee to work at an establishment here, even if the supply of workers to third parties is not part of its ordinary business".

In Fuller v (1) United Healthcare Services Inc (2) Radkiewicz EAT/0464/13, where, according to the EAT, the employment tribunal found on the facts that an "employment relationship was overwhelmingly American in nature and that the work carried out in the UK did not alter that" the tribunal was correct to hold that the situation "was not within the territorial reach of … the Equality Act 2010".

In Jeffery v British Council; Green v SIG Trading Ltd [2019] IRLR 123 CA, the Court of Appeal dismissed the appeal and upheld Jeffery v The British Council [2016] IRLR 935 EAT. In Jeffery, the employee, who worked on a "truly expatriate" basis, latterly as a teaching centre manager in Bangladesh, was found by the EAT to have an "overwhelmingly closer connection with Great Britain and with British employment law than any other system" and was therefore able to pursue his claims under the Equality Act 2010. The main factors that the EAT identified that established "a quite exceptional degree of connection with Great Britain and British employment law" are set out below:

  • The employee was "a UK citizen recruited in the UK to work for a UK organisation".
  • The contract of employment provided for English law to apply.
  • The employee was entitled to a civil service pension, which the EAT commented was "a remarkable feature to find in the contract of employment of an expatriate employee". The EAT observed that this "[created] another strong link to the UK and to UK employment law".
  • The employee's "salary was subject to a notional deduction for UK income tax to maintain comparability with the position if he were working in the UK". The EAT again commented that this was "an exceptional provision to find in the contract of an expatriate employee".
  • The "nature of the Respondent ... [which is] recognised as playing such a part in the life of the nation that it is right to afford a civil service pension to their employees".

The Equality Act 2010 contains a power to specify the territorial application of its employment provisions in relation to ships, hovercraft and offshore work. The Equality Act 2010 (Offshore Work) Order 2010 (SI 2010/1835) applies part 5 of the Act - which sets out the provisions relating to work - to offshore work, replacing similar provisions in previous legislation. The order does not apply to ships in navigation or those engaged in fishing or dredging. The Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011 (SI 2011/1771) prescribe the circumstances in which part 5 of the Equality Act 2010 applies to seafarers working on UK ships and hovercraft, or on ships and hovercraft from other EEA states. In Hasan v Shell International Shipping Services (Pte) Ltd and others EAT/0242/13, Mr Hasan, a British national with a British passport, whose normal place of residence (when not on board ship) is in England, failed in his attempt to pursue a race discrimination claim against the respondents. The EAT upheld the tribunal decision that, on the facts of Mr Hasan's employment, it lacked jurisdiction to hear his claim.

Further guidance on the territorial scope of the Act appears in chapter 10 of the Employment statutory code of practice.

Who is liable?

Those who may be liable for prohibited conduct under the Equality Act 2010 include:

  • Employers, in relation to job applicants, employees, ex-employees (in some cases), where:
    • the employer discriminates against a job applicant, or discriminates against, harasses or victimises an employee in its employment;
    • the employer's employees discriminate against a worker during the course of their employment, unless the defence of having taken "all reasonable steps" to prevent discrimination applies; or
    • the employer's agent discriminates, unless the reasonable steps defence applies.
  • Employees who discriminate during the course of their employment, who will be personally liable even if the employer has a defence.
  • Principals (ie those who make work available for individuals employed by someone else) when:
    • they discriminate against contract workers; or
    • the principal's agent discriminates.
  • A person who knowingly helps another person to do an unlawful act of discrimination.

Employers

Employers are liable under the Equality Act 2010 for direct and indirect discrimination, discrimination arising from disability and victimisation in relation to recruitment, terms and benefits, detrimental treatment during employment, and dismissal. In addition, employers may discriminate by failing to comply with the duty to make reasonable adjustments under the Act. Employers are also liable for harassment of job applicants and employees and, in some circumstances, for discrimination, harassment or victimisation after employment.

The act of discrimination, harassment or victimisation may be:

  • done by the employer itself;
  • done by its employees in the course of their employment, whether or not the act is done with the employer's knowledge or approval; or
  • done by an agent of the employer with the express or implied authority of the employer (whether given before or after the act).

Employers will have a defence against an act done by one of their employees or agents if they can show that they took all reasonable steps to prevent such conduct (see Reasonable steps defence).

Prior to 1 October 2013, the employer could be liable under s.40(2) to (4) of the Equality Act 2010 for an act done by a third party against an employee who (the employer knew) had been subjected to third-party harassment on at least two previous occasions where the employer had failed to take reasonably practicable steps to prevent it. However, s.40(2) to (4) was repealed with effect from 1 October 2013 (see Third-party harassment for further information).

Employers' liabilities for employees' acts

An employer will be liable for discrimination, harassment or victimisation carried out by employees in the course of employment unless the employer has taken all reasonable steps to prevent such conduct. Using arguably stronger wording than under previous legislation, the Equality Act 2010 states that anything done by an employee in the course of employment "must be treated as also done by the employer". "Course of employment" has been interpreted widely in race and sex discrimination cases. In Jones v Tower Boot Co Ltd [1997] IRLR 168 CA, a racial harassment case decided under the now repealed Race Relations Act 1976, the Court of Appeal held that "in the course of employment" could cover even acts of torture to which workers had subjected a colleague in the workplace. The term should be interpreted in the broad sense in which it is employed in everyday speech. It may cover discrimination that occurs outside work provided that there is a close link to the work, eg a work outing, a Christmas party or a work trip abroad.

In Chief Constable of the Lincolnshire Police v Stubbs and others [1999] IRLR 81 EAT, the Employment Appeal Tribunal (EAT) upheld a finding that two incidents that occurred in a pub after work occurred in the course of employment and were unlawful under the now repealed Sex Discrimination Act 1975. The tribunal had held that the incidents were connected to work and the workplace; they would not have happened but for the applicant's work; and work-related social functions are an extension of employment. The EAT said that when there is a social gathering of work colleagues it is appropriate for a tribunal to consider whether or not the circumstances show that what was occurring was an extension of their employment. Whether a person is or is not on duty and whether or not the conduct occurred on the employer's premises are two of the factors that will need to be considered by the tribunal, but are not conclusive. Each situation is a question of fact for the tribunal.

In Forbes v LHR Airport Ltd EAT/0174/18, a racial harassment case, one of the claimant's colleagues shared an image of a golliwog on her Facebook account. The claimant was not a Facebook friend of the colleague, but another employee brought it to his attention. The EAT upheld the tribunal decision that the employer was not vicariously liable for racial harassment because the claimant's colleague had not been acting in the course of her employment when she shared the image. The EAT held that a lay person would not consider that the sharing of an image on a private, non-work Facebook page, with a list of friends that included very few colleagues, was an act done "in the course of employment". Other relevant factors were that she was not at work when the image was posted, her post made no reference to the employer or any of its employees, and she did not use the employer's equipment when sharing the image.

In Mohamud v WM Morrison Supermarkets plc [2016] IRLR 362 SC, a case that may have implications for discriminatory behaviour by employees towards colleagues or third parties, the Supreme Court held that the employer was vicariously liable for a violent assault on a customer by one of its employees. The Supreme Court noted that the case addressed the question of in what manner the conduct of an individual has to be related to the relationship between that individual and the defendant employer for vicarious liability to be imposed on the employer. In Mohamud, the Supreme Court held that the employee's actions, although a gross abuse of his position, were "in connection with the business in which he was employed to serve customers" and that the employer "should be held responsible".

In Bellman v Northampton Recruitment Ltd [2019] IRLR 66 CA, a personal injury case that may also have implications for discriminatory behaviour by employees towards colleagues or third parties, the Court of Appeal held that an employer was vicariously liable for a managing director's assault of an employee during a drinking session after the work Christmas party. Following the principles in Mohamud v WM Morrison Supermarkets plc [2016] IRLR 362 SC, the Court found that the employee, as managing director, was authorised to act on behalf of his employer and that he had been given a wide remit. In the Court's view, there was "sufficient connection" between his field of activities and the assault to render it just that the employer should be vicariously liable for the managing director's actions.

In Unite the Union v Nailard [2018] IRLR 730 CA, the Court of Appeal considered the union's liability for sexual harassment by two of its elected branch officers against a paid employed officer. The Court of Appeal held that the union was liable for the acts of its elected branch officers because they were acting as its agents, but that the union was not liable for failures by its employed union officials to prevent discrimination by the third-party elected branch officers.

Additional resources on employers' liabilities for employees' acts

FAQs

Policies and documents

"How to" guidance

Third parties

An employer may be liable in connection with a third party's conduct towards an employee if the employer fails to intervene to prevent or stop the conduct because the employee is disabled. In Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003] IRLR 512 HL, the House of Lords said that an employer will not be liable for subjecting an employee to discrimination by a third party other than an employee, unless the reason for the failure to take action to prevent or reduce the discrimination is related to the employee's sex, race, etc, or the third party was acting as the employer's agent. Macdonald was decided under the repealed Sex Discrimination Act 1975 but employers would be advised to assume that they should protect employees from all types of discrimination by third parties.

In a case that may have implications for discriminatory behaviour by third parties, the Supreme Court held that the Ministry of Justice was vicariously liable for the conduct of a prisoner whose negligence caused a prison officer employee to suffer a back injury while working in the prison kitchen (Cox v Ministry of Justice [2016] IRLR 370 SC). The Supreme Court noted that the case addressed the question of "what sort of relationship has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual".

Prior to 1 October 2013, an employer could be liable under s.40(2) to (4) of the Equality Act 2010 if an employee was harassed by a third party during the course of employment, in circumstances where the employer knew that the employee concerned had been subjected to such "third-party" harassment on at least two other occasions (whether by the same or a different third party) but had failed to take reasonably practicable steps to prevent it. The third-party harassment provisions in the Equality Act 2010 were repealed with effect from 1 October 2013 by s.65 of the Enterprise and Regulatory Reform Act 2013, but the repeal does not apply "for the purposes of proceedings that relate to a contravention occurring before" the coming into force of s.65 on 1 October 2013. It would appear that the proceedings did not need to be ongoing as at 1 October 2013. The explanatory note to the Enterprise and Regulatory Reform Act 2013 (Commencement No.3, Transitional Provisions and Savings) Order 2013 (SI 2013/2227) (which is the Order that commenced s.65 of the 2013 Act) states that the effect of the third-party harassment provisions in the Equality Act 2010 is saved "for contraventions of the provisions before 1 October 2013".

Additional resources on third parties

FAQs

"Reasonable steps" defence

An employer will have a defence to anything done by one of its employees in the course of that employee's employment if it can prove that it took all reasonable steps to prevent the employee from doing that thing, or from doing anything of that description. Guidance from sex and race discrimination cases suggests that having an appropriate policy covering the type of behaviour, such as an equal opportunities or dignity at work policy, will be an essential part of proving a reasonable steps defence but will be insufficient in itself. The policy must be properly implemented, which will include making employees aware of the policy and the provision of training. If a particular risk has been identified, eg from a particular employee, some additional steps may be required if the employer is to be able to establish a reasonable steps defence to any act of discrimination by that employee: Canniffe v East Riding of Yorkshire Council [2000] IRLR 555 EAT. Canniffe was decided under the repealed Sex Discrimination Act 1975, which required employers to take "such steps as were reasonably practicable" (as opposed to "all reasonable steps") to prevent the employee's conduct. It remains to be seen whether or not the omission of the word "practicable" from s.109(4) of the Equality Act 2010 will have any effect on the availability of the defence.

In Unite the Union v Nailard [2018] IRLR 730 CA, the Court of Appeal noted an "apparent anomaly" in that this defence "is available only to employers and not principals".

Additional resources on the "reasonable steps" defence

Policies and documents

Liability for and of agents

An employer may also be liable for discrimination, harassment or victimisation carried out by its agents, such as an employment agency through whom members of staff are appointed. In this context, the employer is referred to as "the principal", which has a different meaning to a person who engages the services of a worker who is employed by someone else (see Principals below). It does not matter whether or not the employer knew of or approved the agent's conduct. In Lana v Positive Action Training in Housing (London) Ltd [2001] IRLR 501 EAT, (a decision under the repealed Sex Discrimination Act 1975 which, prior to the implementation of the Equality Act 2010, covered discrimination on the grounds of pregnancy and maternity) the respondent placed the claimant with a company, which terminated the arrangement soon after the claimant said that she was pregnant. The respondent then terminated its training contract as it did not have any work for the claimant. The EAT held that the respondent, which had agreed to provide the claimant with work experience, and contracted with another company (its agent) to provide her with a work experience placement, would be liable itself if its agent had terminated the work experience placement because the trainee was pregnant. The agent had the authority to terminate the engagement of the trainee and, if that were done in circumstances in which it constituted discrimination, the principal would be liable. The agent would also be liable. The same principles would be applicable to a disability discrimination case under the Equality Act 2010.

In Bungay and others v Saini and others EAT/0331/10 (decided under the repealed Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660)), the EAT followed the approach adopted in Lana v Positive Action Training in Housing (London) Ltd [2001] IRLR 501 EAT, holding that Mr Bungay and Mr Paul (the other appellant) "were managing the centre as part of their authority as its directors and so the tribunal was entitled to conclude that [they] were acting as its agents even though they performed their duties in a discriminatory manner".

In Commissioner of Police of The Metropolis v Weeks EAT/0130/11, the EAT upheld the employment tribunal decision that a civilian employee who alleged that she had been subjected to sex discrimination by a police officer (who it seems was not to be regarded as an employee in the circumstances, under s.17 of the now repealed Sex Discrimination Act 1975) was entitled to rely on s.41(2) of the Sex Discrimination Act 1975, which provided that: "Anything done by a person as agent for another person with the authority ... of that other person shall be treated for the purposes of this Act as done by that other person as well as by him", to bring her claim against the Commissioner of Police. As the EAT observed, the Equality Act 2010 (in s.42) retains the same principles with regard to the police (in s.17 of the Sex Discrimination Act 1975) and (in s.109) with regard to the liability of employers and principals (in s.41(2) of the Sex Discrimination Act 1975).

An employer's potential liability for acts committed by an agency worker in its workforce was considered by the EAT in Mahood v Irish Centre Housing Ltd EAT/0228/10. The EAT stated that: "an employer would be liable for the acts of an agency worker exercising authority, or controlled by the [employer] or who has the [employer's] authority to do the acts in question where those acts are done in a discriminatory manner but are just as capable of being done in a lawful manner". The EAT remitted the case to the same employment tribunal to reconsider it on this basis. Mahood was decided under the repealed Race Relations Act 1976 and the repealed Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) but the principle is likely to remain relevant under the Equality Act 2010.

In Kemeh v Ministry of Defence [2014] EWCA Civ 91 CA (decided under the Race Relations Act 1976), Mr Kemeh, a cook in the British army, was racially abused in the mess by Ms Ausher who was a civilian employed by Sodexo as a butcher. The Court of Appeal noted that the material agency provisions of the repealed Race Relations Act 1976 were "almost identical" to those in the Equality Act 2010, and found that the Ministry of Defence (MoD) could not be held liable for Ms Ausher's conduct, stating that: "Whatever the precise scope of the legal concept of agency, and whatever difficulties there may be of applying it in marginal cases, I am satisfied that no question of agency arises in this case. In my view, it cannot be appropriate to describe as an agent someone who is employed by a contractor simply on the grounds that he or she performs work for the benefit of a third party employer. She is no more acting on behalf of the employer than his own employees are, and they would not typically be treated as agents" - although in some circumstances they might be. The Court of Appeal held that "Ms Ausher's contract with Sodexo is the source of any authority she has to make decisions relating to the butcher's department in the mess. It may be ... that ultimately the MoD would have the right to veto her presence, at least for good reason. But that limited degree of control comes nowhere near constituting an authorisation by the MoD to allow Ms Ausher to act on its behalf with respect to third parties." Recognising that this probably left Mr Kemeh without a cause of action the Court of Appeal commented that "Parliament may wish to consider this lacuna, although if it provides a remedy, it will have to decide whether it is the immediate employer rather than the end user of the services who should bear the legal responsibility."

In Unite the Union v Nailard [2018] IRLR 730 CA, the Court of Appeal upheld the employment tribunal decision that two elected branch officers were acting as agents for the union because they carried out work on its behalf "in their dealings with local members, officers, other trade unions and employers". The Court of Appeal upheld the tribunal decision that the union was liable under s.109 of the Equality Act 2010 for the sexual harassment of the claimant (a union employee) by its elected officers.

In Peninsula Business Service Ltd v Baker [2017] IRLR 394 EAT, the employer (the "principal") arranged for a third party (the "agent") to conduct covert surveillance of an employee. When the employee was informed of this, he alleged that the surveillance had been arranged in response to protected acts he had done, and that it amounted to victimisation. The agent was unaware of any of the alleged protected acts. The EAT acknowledged that s.109(2) of the Equality Act 2010 provides that anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal. The EAT went on to state that s.109 "only makes the principal liable for a breach of the [Equality Act 2010] ... if what the agent does is, itself, a breach of the Act". As the agent had not victimised the employee, the EAT held that the principal could not be held liable either.

Personal liability of employees

Section 110 of the Equality Act 2010 expressly provides that an employee will be personally liable for acts of discrimination, harassment or victimisation carried out against other workers during the course of his or her employment. This reflects the previous position as demonstrated in cases such as Yeboah v Crofton [2002] IRLR 634 CA, which was decided under the now repealed Race Relations Act 1976, but as the Equality Act 2010 explanatory notes make clear, s.110 "take[s] a more direct approach". Thus, an employee may be named as a respondent in a discrimination claim and be ordered to pay compensation even if the employer can show that it satisfied the reasonable steps defence. In Gilbank v Miles [2006] IRLR 538 CA, a case decided under the repealed Sex Discrimination Act 1975, an award of £25,000 was made personally against a manager (who was a director and the main shareholder of the company) after she discriminated against a pregnant employee. In Allaway v Reilly and another [2007] IRLR 864 EAT (also decided under the repealed Sex Discrimination Act 1975), the EAT in Scotland held that an individual will be liable even when discrimination is not a motive or intention. It is enough that, on the evidence, the conclusion can be drawn that discrimination as the probable outcome was within the scope of the individual's knowledge at that time.

In Barlow v Stone EAT/0049/12 (decided under the repealed Disability Discrimination Act 1995), Mr Barlow issued disability discrimination proceedings against his employer. Mr Barlow's colleague, Mr Stone, then made a complaint about Mr Barlow to the police. Mr Barlow alleged that this was an act of victimisation perpetrated by both Mr Stone and their mutual employer. However, proceedings were not issued against the employer in relation to this issue. Overturning the employment tribunal decision, the EAT held that the tribunal had jurisdiction to hear Mr Barlow's victimisation claim against Mr Stone even though Mr Barlow had not issued proceedings against the employer in relation to this issue.

It is not necessary to show that the employee knew that the act was unlawful, but liability will be avoided if the employee is able to establish that they reasonably relied on a statement by the employer that the act was not unlawful (s.110(3) of the Equality Act 2010).

Trustees and managers of occupational pension schemes

The Equality Act 2010 prohibits discrimination, harassment and victimisation by trustees and managers of occupational pension schemes, and by employers whose employees are, or may be, members of such a scheme.

Principals

A principal is defined, by s.41(5) of the Equality Act 2010, as a person who, under a contract to which the principal is a party, makes work available for an individual who is employed and supplied by another person (whether or not that other person is a party to the contract). The Act therefore codifies existing case law by making it clear that there does not have to be a direct contractual relationship between the principal and the employer of the contract worker as established in Abbey Life Assurance Co Ltd v Tansell [2000] IRLR 387 CA (a case decided under the now repealed Disability Discrimination Act 1995).

Principals are liable under the Equality Act 2010 for disability discrimination or victimisation in whether to allow the contract worker to do, or continue to do, the work, in the terms on which the worker is allowed to do the work, in relation to access to benefits, or in relation to any other detrimental treatment, including some discrimination after the working relationship has come to an end. Principals are also liable for harassment of contract workers, which may extend to conduct after the working relationship has ended. The act of discrimination may be:

  • done by the principal itself;
  • done by the principal's employees in the course of their employment, whether or not the acts are done with the principal's knowledge or approval; or
  • done by an agent of the principal with the express or implied authority of the principal (whether given before or after the act).

The same approach to "course of employment", the "reasonable steps" defence to acts done by the principal's employees and liability for the acts of an agent will apply as described above. In addition, the individual will be protected from discrimination by their employer.

Employees, agents and others who "knowingly help" contraventions of the Equality Act 2010

Under s.112 of the Equality Act 2010, it is unlawful to knowingly help someone to discriminate against, harass or victimise another person or to knowingly help to instruct, cause or induce discrimination. In certain circumstances liability for such conduct may extend beyond the end of the employment relationship. Liability is avoided if it can be established that reasonable reliance was placed on a statement by the person to whom assistance was given to the effect that the act was not unlawful. The Equality and Human Rights Commission (EHRC) has published guidance in the form of the Employment statutory code of practice, which cites the example of a clerical worker who is asked by a company manager, who wishes to be surrounded by female staff, to let him know the sex of all of the applicants for a particular post so that he may filter out the male candidates, in circumstances where such information is not apparent from the application forms in accordance with the company's equal opportunities policy. The EHRC considers that "it may be unlawful for the clerical worker to give the manager this help" even if the manager were unsuccessful in his attempt to exclude male applicants.

While the wording in the Equality Act 2010 (ie knowingly help) differs to that used in previous discrimination legislation (ie knowingly aid) the principles established in previous case law may remain relevant. In Anyanwu and another v South Bank Students' Union and South Bank University [2001] IRLR 305 HL, a case which concerned the phrase "knowingly aid" from the now repealed Race Relations Act 1976, the claimants, two black students who were employed by the student union, claimed that the university aided their dismissal by the student union when the university expelled them and barred them from the union premises. The House of Lords held that a person aids another if the person helps or assists, or cooperates or collaborates with them. It does not matter who the "prime mover" is. Aiding must be done knowingly. It requires more than a general attitude of helpfulness or cooperation; it must be shown that another is aided to do the unlawful act in question: Hallam and another v Cheltenham Borough Council and others [2001] IRLR 312 HL (also decided under the repealed Race Relations Act 1976). In Gilbank v Miles [2006] IRLR 538 CA, an award of £25,000 was made personally against a manager (who was a director and the main shareholder of the company) after she discriminated against a pregnant employee, contrary to the now repealed Sex Discrimination Act 1975.

Others who may be liable

The Equality Act 2010 has special provisions setting out the circumstances in which other bodies may be liable for discrimination, harassment and victimisation, including:

  • partnerships or proposed partnerships (s.44);
  • limited Liability Partnerships (LLPs) or proposed LLPs (s.45);
  • employment-service providers (s.55); and
  • barristers (s.47).

In Michalak v General Medical Council and others [2018] IRLR 60 SC, the Supreme Court held that the employment tribunal had jurisdiction to hear a claim against a qualification body (the General Medical Council) in respect of discrimination committed in the course of the body carrying out its functions. The availability of judicial review did not preclude this because that process does not constitute "proceedings in the nature of an appeal" for the purposes of s.120(7) of the Equality Act 2010. (Section 120(7) of the Act excludes from the jurisdiction of the employment tribunal, cases concerning qualification bodies where the discriminatory act complained of may, by law, "be subject to an appeal or proceedings in the nature of an appeal".)

Prohibited conduct

The Equality Act 2010 prohibits the types of conduct listed below.

  • Direct discrimination, ie less favourable treatment because of the protected characteristic of disability. This covers less favourable treatment because of a person's association with someone who has or is believed to have the protected characteristic ("discrimination by association"), or because a person is wrongly thought to have the protected characteristic ("discrimination by perception") (Direct discrimination).
  • Indirect discrimination, ie where a person with a particular disability and others who share that disability are, or would be, disadvantaged by the unjustified application of a provision, criterion or practice (PCP) when compared with others to whom the PCP is, or would be applied, and who do not share that disability (Indirect discrimination and Justification).
  • Discrimination arising from disability, ie where A treats B unfavourably because of something arising in consequence of B's disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim (Discrimination arising from disability and Justification).
  • Discrimination by way of a failure to make reasonable adjustments (Reasonable adjustments).
  • Harassment, ie unwanted conduct related to disability that has the purpose or effect of violating the victim's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them (Harassment).
  • Victimisation, ie where a person is subjected to detriment because they have done, or the employer believes that they have done, or may do, a "protected act" (Victimisation).

Prohibited conduct in the employment context

As with previous discrimination legislation, prohibited conduct as defined in the Equality Act 2010 is unlawful only if it occurs in specified circumstances. In the employment context, part 5 of the Equality Act 2010 prohibits direct and indirect discrimination, discrimination arising from disability, discrimination by way of a failure to make reasonable adjustments and victimisation in the fields of employment and vocational training.

Under s.39(1) and (3) of the Act, an employer (A) must not discriminate against, or victimise a person (B):

  • in the arrangements A makes for deciding to whom to offer employment;
  • as to the terms on which A offers B employment; or
  • by not offering B employment.

Under s.39(2) and (4) of the Act, an employer (A) must not discriminate against, or victimise an employee of A's (B):

  • as to B's terms of employment;
  • in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training, or for receiving any other benefit, facility or service;
  • by dismissing B; or
  • by subjecting B to any other detriment.

Section 39(7) and (8) of the Equality Act 2010 provide that "dismissal" includes constructive dismissal and the expiry and non-renewal of a fixed-term contract.

Under s.40 of the Act, it is also unlawful for an employer (A) in relation to employment by A, to harass a person (B):

  • who is an employee of A's; or
  • who has applied to A for employment.

Under s.41 of the Act, direct and indirect discrimination, discrimination arising from disability, discrimination by way of a failure to make reasonable adjustments and victimisation by principals is unlawful:

  • as to the terms on which the principal allows the contract worker to do work;
  • by not allowing a contract worker to do, or continue to do, the work;
  • in the way the principal affords the contract worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service; or
  • by subjecting the contract worker to any other detriment.

It is also unlawful for a principal to harass a contract worker.

In X v Mid Sussex Citizens Advice Bureau and others [2011] EWCA Civ 28 CA, the Court of Appeal upheld the employment tribunal decision that the employer's volunteering arrangements did not constitute "arrangements which [the employer] makes for the purpose of determining to whom he should offer employment" (under the now repealed Disability Discrimination Act 1995).

"Detriment" is likely to be interpreted in the same way as it was in sex and race discrimination cases decided under the repealed Sex Discrimination Act 1975 and Race Relations Act 1976, of which the following are examples. An individual can suffer a detriment even if they were unaware of the conduct complained of at the time: Garry v London Borough of Ealing [2001] IRLR 681 CA. Being subject to a "detriment" was interpreted as meaning put at a disadvantage: Jeremiah v Ministry of Defence [1979] IRLR 436 CA. In Bayode v The Chief Constable of Derbyshire EAT/0499/07, the EAT agreed with the employment tribunal that the mere act of making a written record could not give rise to a justified sense of grievance on the part of the claimant so as to constitute a detriment. No physical or economic consequence is necessary: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 HL. Hurt feelings may be enough for there to be detriment, at least provided that the victim's view of the treatment is not unreasonable or unjustified. In a case decided under the now repealed Employment Equality (Age) Regulations 2006 (SI 2006/1031), Keane v Investigo and others EAT/0389/09, the EAT upheld an employment tribunal finding that a job applicant whose applications were not genuine had not suffered a detriment. Therefore her claims for direct and indirect age discrimination failed. Similarly, in Cordant Security Ltd v Singh and another [2016] IRLR 4 EAT, the EAT held that an employee did not suffer a detriment by reason of his employer's failure to investigate an allegation of race discrimination because the "allegation was fabricated" and, had it been investigated, "it would have been found to be untrue". Although the employment tribunal was entitled to conclude on the evidence that the employer's failure to investigate amounted to less favourable treatment because of race, the employee's claim that it amounted to unlawful direct discrimination in breach of s.39(2)(d) of the Equality Act 2010 (the requirement not to subject an employee to a detriment) failed at the EAT because he was required to establish both less favourable treatment and that he had been subjected to a detriment.

A gay employee was subjected to a detriment when, while looking through an archived file, he discovered homophobic comments in a memo that he had not been intended to see (Bivonas LLP and other v Bennett EAT/0254/11). Although Bivonas LLP was decided under the repealed Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661) it is relevant to discrimination cases decided under the Equality Act 2010.

The detriment to which an employee is subjected under s.39 of the Equality Act 2010 must occur in the employment field. In London Borough of Waltham Forest v Martin EAT/0069/11 (which was decided under the now repealed Race Relations Act 1976, but is likely to remain relevant under the Equality Act 2010), the EAT held that a local authority's decision to instigate a criminal prosecution against a resident, who was also one of its employees, for alleged benefit fraud was not a matter that fell within the employment field. Accordingly, the employment tribunal had no jurisdiction to hear the claimant's claim.

In Shaw v CCL Ltd [2008] IRLR 284 EAT (decided under the repealed Sex Discrimination Act 1975), the EAT held that direct and indirect sex discrimination led to a fundamental breach of an employee's contract, entitling her to resign and claim constructive dismissal. The claimant contended that any act of discrimination is a breach of the implied term of trust and confidence. However, although in this case the high-handed way in which the employee's request to work part time had been dealt with did amount to a repudiatory breach justifying her resignation, the EAT was not prepared to say that this would always be the case.

An employment tribunal will decide, on a balance of probabilities, whether or not there has been unlawful discrimination. The burden of proof provision in the Act has the effect that a tribunal must find unlawful discrimination where the complainant proves facts from which the tribunal could conclude that the respondent has committed unlawful discrimination, unless the respondent provides a satisfactory, non-discriminatory explanation for the treatment.

Additional resources on prohibited conduct in the employment context

FAQs

Prohibited conduct after the employment relationship has come to an end

An act of discrimination or harassment committed after the working relationship has come to an end will be unlawful if it would have been unlawful during the course of the working relationship, where the discrimination or harassment arises out of or is closely connected to that former relationship (s.108 of the Equality Act 2010). It appears that post-employment victimisation is also unlawful in similar circumstances.

Thus, a complaint could be brought about any disability discrimination or victimisation during the course of an appeal against dismissal, although the employment ended with the dismissal. It is clear also that any disability discrimination or victimisation in the refusal to give a reference or in the form of a reference given within a reasonable time after employment has ended will fall within the employment provisions of the Act, and it is likely that a complaint could be brought about references even after a much longer period if the employer would still normally provide a reference after such an interval in the form sought. If an employer normally provides benefits to ex-employees, whether this is a contractual entitlement or otherwise, a complaint could be brought about discrimination or victimisation in the provision of such benefits after employment has ended.

Acts of discrimination and harassment of this type committed after the working relationship has come to an end will be unlawful if they are committed on or after 1 October 2010 when the Equality Act 2010 came into force, even if the working relationship came to an end before that date.

The duty to make reasonable adjustments continues to apply after the working relationship has come to an end in so far as a disabled person continues to be placed at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled (s.108(4) of the Equality Act 2010) (Reasonable adjustments).

Direct discrimination

Section 13 of the Equality Act 2010 defines direct discrimination as being where, because of a protected characteristic (eg disability), person A treats person B less favourably than person A treats or would treat other persons.

The act of treating a disabled person more favourably than a non-disabled person does not constitute discrimination (s.13(3)).

There must be no material difference between the circumstances of B's case and that of their actual or hypothetical comparator(s). Where a comparison is being made for the purposes of establishing direct disability discrimination, s.23(2) of the Act provides that the circumstances relating to a case include a person's abilities.

The less favourable treatment can relate to B's actual or perceived disability, even where the perception is wrong, for example where B is treated less favourably because they are erroneously perceived to be disabled. In Chief Constable of Norfolk v Coffey [2019] IRLR 805 CA, the Court of Appeal upheld the tribunal decision that the police force's refusal to grant an officer a transfer because of its perception that her hearing problems could develop into a disability amounted to perceived direct discrimination. The Court of Appeal rejected the force's argument that perceptions concerning a future, not current, disability should be excluded from the ambit of disability discrimination law. The Court of Appeal said that the perception must relate to a medical condition that has "all the features of the protected characteristic" and, under the Equality Act, where the medical condition is likely to result in an employee having an impairment that is in the future, they are "to be taken to have" that impairment now. The Court of Appeal held that the police force perceived that Mrs Coffey had a progressive condition, irrespective of whether or not it had consciously articulated that belief (see progressive conditions).

The discrimination could also relate to the disability of someone else, for example because B cares for a disabled child or partner or has friends or relatives who are, or who are believed to be, disabled. This reflects the decision of the European Court of Justice (ECJ) in Coleman v Attridge Law and another [2008] IRLR 722 ECJ, which held that the Equal Treatment Framework Directive (2000/78/EC) covers direct discrimination and harassment against an employee on the ground of their association with a disabled person. In EAD Solicitors LLP and others v Abrams [2015] IRLR 978 EAT, the EAT held that a limited company could bring a claim of direct discrimination under the Equality Act 2010 because of the protected characteristic of someone with whom it was associated.

A claim of associative disability discrimination was upheld by the employment tribunal in Bainbridge v Atlas Ward Structures Ltd ET/1800212/12. The tribunal found that the reason why Mr Bainbridge's fixed-term contract was not renewed was "because he had on occasion taken leave at short notice" to care for his disabled wife "thereby causing the company some inconvenience". It held that he had been directly discriminated against because of his wife's disability. Such a claim was also upheld in Price v Action-Tec Services Ltd t/a Associated Telecom Solutions ET/1304312/2011, in which the tribunal found that an employee was dismissed because her employer became "aware of two matters not previously known; firstly, the fact of, and the likely effect on the claimant of, the claimant's husband's disabling illness and secondly, the extent of, and the ongoing nature of, the [claimant's] disabling back condition", which led the employer to conclude that the employee would prove to be unreliable and under-performing. Similarly, in Truman v Bibby Distribution Ltd ET/2404176/2014, a satisfactorily performing employee who was suddenly dismissed for performance issues shortly after he had indicated that his caring responsibilities for his disabled daughter were about to increase, had his complaint of associative disability discrimination upheld. However, a claim of associative disability discrimination by reference to an employee's association with his disabled father who had rapid onset Alzheimer's did not succeed in Graham v Simpson Print Ltd ET/2504738/2012 because the tribunal found that the employer treated the employee the same as, and arguably more favourably than, other employees.

In Hainsworth v Ministry of Defence EAT/0227/13, the employee claimed associative disability discrimination arguing that her employer should have made reasonable adjustments to facilitate her caring duties towards her daughter who suffers from Down's Syndrome. However, the EAT confirmed that employers do not have a duty to make reasonable adjustments where an individual has an association with a disabled person. The EAT considered the employee's case to be untenable because she was arguing for a reasonable adjustment for the benefit of her daughter, and not for the benefit of herself directly. The EAT noted that it was not argued, for example, that the employee could not "reasonably do her work, because of her relationship with someone who is disabled, without an adjustment being made to that work". As such the reasonable "accommodation sought is not to accommodate a person who has an employment relationship with the employer but someone who has not". The EAT concluded that, given that under art.5 of the Equal Treatment Framework Directive (on which the employee placed reliance) "the person who must provide the accommodation is the employer, defined as such, the scope of art.5 is plainly related to employment by that employer" and did not extend in this case to the employee's daughter with whom no such relationship existed. The employee subsequently appealed to the Court of Appeal, which dismissed her appeal (Hainsworth v Ministry of Defence [2014] IRLR 728 CA).

Section 24 of the Equality Act 2010 provides that the alleged discriminator's characteristics are irrelevant. This means that it is no defence to a claim of direct discrimination that A has the same disability as B. The Equality Act 2010 explanatory notes state that the wording of s.24 is wide enough to cover cases of discrimination based on association or perception.

The comparator must be someone who does not have the same disability. It can be a non-disabled person or a person with other disabilities.

Unreasonable treatment will "not by itself, justify a conclusion that a person without a disability would have been treated more favourably". In Dunn v Secretary of State for Justice and another [2019] IRLR 298 CA, the Court of Appeal held that the claim was bound to fail because although the ill-health retirement process was inherently defective, it did not follow that it was inherently discriminatory.

In Aitken v Commissioner of Police of the Metropolis EAT/0226/09 (decided under the repealed Disability Discrimination Act 1995), the EAT, applying London Borough of Lewisham v Malcolm [2008] IRLR 700 HL (also decided under the repealed Disability Discrimination Act 1995), held that the employment tribunal did not err in law in including bad behaviour as a relevant circumstance when making the comparison between how Mr Aitken was treated and how a non-disabled comparator who exhibited similar bad behaviour would have been treated. The Court of Appeal also held that the tribunal did not err in law in failing to exclude from the comparator "the conduct of the claimant that concerned his colleagues", reasoning that, "that conduct was not alleged or proved in the [employment tribunal] either to be, or to be part and parcel of, his disability" (Aitken v Commissioner of Police of the Metropolis [2011] EWCA Civ 582 CA).

Determining whether or not there has been direct discrimination under the Equality Act 2010 requires a similar approach to that previously taken in cases of sex or race discrimination under the repealed Sex Discrimination Act 1975 and repealed Race Relations Act 1976. In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 HL (a sex discrimination case decided under the Sex Discrimination (Northern Ireland) Order 1976) the House of Lords suggested that, although it may be helpful in some cases to divide the test for direct discrimination into two elements of less favourable treatment and whether or not this was on the prohibited ground, in other cases the less favourable treatment issue cannot be resolved without deciding on the reason for the treatment. This is most likely to be the case where there is no actual comparator in the same or not materially different relevant circumstances. Where a hypothetical comparator has to be relied on, determining the reason for the treatment may determine how a hypothetical comparator would have been treated.

However, the EAT in Olalekan v Serco Ltd EAT/0189/18 (a race discrimination case) said that "a Shamoon-style comparator is only one means of constructing a hypothetical comparator, and the tribunal was not bound to adopt that means in place of all others". In the EAT's view, the employer could be liable for discriminatory treatment meted out to different employees in similar circumstances even though different decision-makers were involved. However, on the facts of the claimant's case, the EAT held that the tribunal was entitled to dismiss his claim because the circumstances of his comparators were not truly similar and the tribunal did engage with his arguments on hypothetical comparators to a sufficient extent.

In Geller and another v Yeshurun Hebrew Congregation EAT/0190/15, a sex discrimination case, the EAT noted that "in some cases of alleged direct discrimination, the discrimination alleged is inherent in the act complained of and there will be no need to enquire further into the mental process, conscious or unconscious, of the alleged discriminator". However, in other cases "discrimination is not inherent in the act complained of as it does not by its nature strike at the protected characteristic, but the act complained of may be rendered discriminatory by the motivation, conscious or unconscious, of the alleged discriminator". The EAT explained that "in the latter class of cases the employment tribunal asks itself what the reason for the alleged discriminator's act was, and if the reason is that [the victim] possessed the protected characteristic, then direct discrimination is made out". The EAT held that Mrs Geller's case was the latter class of case and fell within the same category as the example in Nagarajan v London Regional Transport [1999] IRLR 572 HL, in which the House of Lords held that the motivation of the person committing an act of direct race discrimination may be conscious or unconscious. In Geller and another, the EAT also emphasised that "in neither case is a benign motive relevant; nor is it relevant whether the alleged discriminator thought the reason for his or her treatment of the person with the protected characteristic, was that characteristic".

The Court of Appeal has held that, where it is necessary to consider motive, it is the motive of the individual who carried out the asserted discriminatory act that is relevant, rather than someone else's motive. In CLFIS (UK) Ltd v Reynolds [2015] IRLR 562 CA, an age discrimination case, the alleged discriminatory act of a sole decision-making employee was influenced by information supplied, or views expressed, by another employee whose motivation was asserted to be discriminatory. Referring to such a situation as a "tainted information case", the Court of Appeal took the view that "liability can only attach to an employer where an individual employee or agent for whose act it is responsible has done an act which satisfies the definition of discrimination. That means that the individual employee who did the act complained of must himself have been motivated by the protected characteristic." The Court added that there was no basis for asserting that that employee's act could be said to be discriminatory on the basis of someone else's motivation, and that, in a tainted information case, the correct approach is to treat the conduct of the person supplying the information as a separate act from that of the person who acted on it, meaning that it should be the subject of a separate claim.

Provisions on the application of the burden of proof require that, where a claimant proves facts from which the tribunal could conclude that the respondent has contravened a relevant provision of the Equality Act 2010, the tribunal must uphold the complaint unless the respondent provides an adequate non-discriminatory explanation for the treatment. For further information see Burden of proof in discrimination cases (in Tribunal procedures and penalties).

The EAT in High Quality Lifestyles Ltd v Watts [2006] IRLR 850 EAT (decided under the now repealed Disability Discrimination Act 1995), held that a tribunal erred in ruling that the dismissal of a care worker who was HIV positive because of a perceived risk of transmission was direct discrimination. The tribunal had failed to carry out the necessary comparison of the employee's treatment with that of a comparator with an attribute carrying the same risk of causing illness or injury to others. If such a person would also have been dismissed there would be no less favourable treatment and no direct discrimination. Findings of disability-related discrimination and failure to make reasonable adjustments were, however, upheld. There are as yet few appeal level decisions on direct disability discrimination and it remains to be seen if this decision will be followed under the Equality Act 2010.

The EAT overturned a finding of direct discrimination in City of Edinburgh Council v Dickson EATS/0038/09 (decided under the repealed Disability Discrimination Act 1995), which involved the dismissal of a diabetic employee for viewing pornography at work during what he alleged was a hypoglycaemic episode. Although the EAT agreed that the council had unfairly dismissed the employee, it found that there was no reason to suppose that the council's failure to take the employee's explanation seriously was influenced by that fact that he was a diabetic. It is likely that the application of the "because of" test under the Equality Act 2010 would produce the same outcome in this case.

Direct discrimination cannot be justified. This was confirmed by the House of Lords in Ahsan v Watt (formerly Carter) (sued on his own behalf and on behalf of other members of the Labour Party) [2008] IRLR 243 HL (which was decided under the repealed Race Relations Act 1976). The fact that customers put pressure on an employer to discriminate cannot be used to justify direct discrimination.

Additional resources on direct discrimination

FAQs

Line manager briefings

Less favourable treatment

What constitutes less favourable treatment is a matter for the tribunal to decide. The Employment statutory code of practice states that to decide whether or not an employer has "treated a worker 'less favourably', a comparison must be made with how they have treated other workers or would have treated them in similar circumstances". The code explains that: "If the employer's treatment of the worker puts the worker at a clear disadvantage compared with other workers, then it is more likely that the treatment will be less favourable: for example, where a job applicant is refused a job." It goes on to state that less favourable treatment "could also involve being deprived of a choice or excluded from an opportunity."

It is usually necessary that a complainant show that they have suffered an actual detriment, although as the code states: "The worker does not have to experience actual disadvantage (economic or otherwise) for the treatment to be less favourable. It is enough that the worker can reasonably say that they would have preferred not to be treated differently from the way the employer treated - or would have treated - another person."

The Equality Act 2010 requires complainants alleging direct discrimination to compare themselves with either an actual or a hypothetical comparator when showing less favourable treatment. So a complainant would have to show that they had been less favourably treated than a non-disabled person in similar circumstances either had or would have been treated.

The Employment Appeal Tribunal (EAT) has emphasised that where an employer relies on differences between the claimant and the comparators to explain their dissimilar treatment, the difference must be "material" to the case (CP Regents Park Two Ltd v Ilyas EAT/0366/14 (a race discrimination case)).

Where there is no actual comparator in similar circumstances and there is some evidence to support an inference of discrimination, the tribunal must construct a hypothetical comparator to show how a non-disabled person would have been treated: Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002] IRLR 288 CA (decided under the now repealed Race Relations Act 1976). A tribunal can draw an inference of how a hypothetical comparator would be treated from evidence of how the employer treated actual non-identical, but not wholly dissimilar cases: Chief Constable of West Yorkshire v Vento [2001] IRLR 124 EAT (decided under the repealed Sex Discrimination Act 1975).

Because of disability

The second hurdle in a claim of direct disability discrimination is to show that the reason the treatment was less favourable was "because of the protected characteristic" of disability. The protected characteristic of disability does not have to be the sole reason for the less favourable treatment but must be an important or substantial reason. This was emphasised in Alam v London Probation Trust EAT/0199/14 (a race discrimination case), in which the EAT stated that: "What is required is not that the treatment is solely because of a protected characteristic but that the protected characteristic is an 'effective cause' of the treatment".

In Cordell v Foreign and Commonwealth Office EAT/0016/11 (decided under the repealed Disability Discrimination Act 1995), the EAT held that the Foreign and Commonwealth Office did not discriminate against a deaf diplomat when it withdrew an offer of an assignment in Kazakhstan after an assessment showed that the cost of providing lipspeakers would have been prohibitive.

The approach adopted by the EAT in Amnesty International v Ahmed [2009] IRLR 884 EAT, a race discrimination case (decided under the now repealed Race Relations Act 1976), is relevant to disability discrimination cases. In Ahmed, the EAT held that an employer directly discriminated against an employee of northern Sudanese origin when it did not promote her because of concerns that the new position, which involved travel to Sudan, would put her in danger because of her race. The EAT stated that the employer's motive was irrelevant, and that while in "some cases the ground, or the reason, for the treatment complained of is inherent in the act itself" (for example, a sign saying "No blacks admitted"), in others "the act complained of is not in itself discriminatory but is rendered so by a discriminatory motivation, ie other 'mental processes' (whether conscious or unconscious) which led a putative discriminator to do the act. Establishing what those processes were is not always an easy inquiry, but tribunals are trusted to be able to draw appropriate inferences from the conduct of the putative discriminator and surrounding circumstances (with the assistance where necessary of the burden of proof provisions). Even in such a case, however, it is important to bear in mind that the subject of the inquiry is the ground of, or reason for, the putative discriminator's action, not his motive: just as a ... benign motive is irrelevant."

In Owen v Amec Foster Wheeler Energy Ltd and another [2019] EWCA Civ 822 CA, the employee attempted to rely on Ahmed in support of his argument that he had been subjected to direct disability discrimination. He contended unsuccessfully that, regardless of any benign motive that his employer may have had, there was a necessary and inherent link between the reason his employer withdrew the offer of an overseas posting and his disabilities. The Court of Appeal agreed with the tribunal that there was no direct discrimination as a hypothetical comparator who is not disabled, but deemed to be at high medical risk, would have been treated in exactly the same way. The Court said that, unlike race or sex discrimination, the concept of disability is not a simple binary one and it is not the case that a "person's health is always entirely irrelevant to their ability to do the job".

In HM Revenue and Customs v Saldanha EAT/0067/17 EAT, also a race discrimination case, the employee successfully applied for a posting in Italy, but HM Revenue and Customs (HMRC) withdrew its offer when it received the employee's psychological resilience assessment that indicated that, given his ethnicity, he could suffer stress if faced with any racism in Italy. The tribunal found that both the assessment and the withdrawal of the posting were acts of unlawful race discrimination. Applying Amnesty International, the EAT held that the tribunal was entitled to find that the nature of the discrimination arose from a criterion rather than a mental process as the acts complained of were based on race and inherently discriminatory. As HMRC had adopted the third party's psychological assessment, its decision taking was also "tainted" by race. Therefore, the tribunal did not need to investigate the mental processes of the third party or HMRC.

In Geller and another v Yeshurun Hebrew Congregation EAT/0190/15, the employment tribunal held that the employer's treatment of Mrs Geller "was based on non-sex related factors" which led to the tribunal's conclusion that "the treatment was non-sex related". Upholding the employee's appeal and remitting the case to the employment tribunal, the EAT stated that the tribunal had incorrectly relied on the employer's "genuine beliefs" and had overlooked the very important point that discrimination can be unconscious or subconscious, a principle applied by the House of Lords in Nagarajan v London Regional Transport [1999] IRLR 572 HL.

Additional resources on less favourable treatment

FAQs

Line manager briefings

Indirect discrimination

The Equality Act 2010 introduced the concept of indirect discrimination in relation to the protected characteristic of disability.

Section 19 of the Equality Act 2010 defines indirect discrimination as being where person A applies to person B a provision, criterion or practice that is discriminatory in relation to a relevant protected characteristic of B's.

A provision, criterion or practice is discriminatory in relation to B's disability, if:

  • A applies, or would apply it, to people who do not share B's disability;
  • it puts, or would put, people who share B's disability at a particular disadvantage when compared with others who do not share it;
  • it puts, or would put, B at that disadvantage; and
  • A cannot justify the provision, criterion or practice by showing that it is a proportionate means of achieving a legitimate aim (see Justification).

Additional resources on indirect discrimination

Line manager briefings

The pool for comparison

The claimant must be able to show that the application of the provision, criterion or practice disadvantages or would disadvantage persons with the same disability. The choice of the appropriate pool for deciding disadvantage is a matter for the tribunal but it should be sufficiently wide to include all those who may be affected by the provision, criterion or practice. The Employment statutory code of practice states that: "In general, the pool should consist of the group which the provision, criterion or practice affects (or would affect) either positively or negatively, while excluding workers who are not affected by it, either positively or negatively." Jones v University of Manchester [1993] IRLR 218 CA was decided under the now repealed Sex Discrimination Act 1975 at a time when the test for indirect discrimination concerned whether or not the persons to whom a particular requirement or condition was applied "could comply" with that requirement or condition. Nevertheless, the decision in Jones is still of some background relevance to the choice of "pools for comparison" under the Equality Act 2010. In Jones, the Court of Appeal held that the appropriate pool for comparison in a recruitment case was all those people who could comply with the other selection criteria, apart from the requirement at issue.

Once the pool for comparison has been selected, to assess its potential discriminatory effect it is necessary to ascertain whether or not people of the same disability are disadvantaged by the provision, criterion or practice. The Employment statutory code of practice advises: "Looking at the pool, a comparison must be made between the impact of the provision, criterion or practice on people without the relevant protected characteristic, and its impact on people with the protected characteristic."

Disadvantage

The claimant must show that the provision, criterion or practice in question puts or would put people with the same disability at a particular disadvantage when compared with people without that disability. The claimant must also establish that it puts or would put him- or herself at that disadvantage. As explained in the Employment statutory code of practice the phrase "would put" "allows challenges to provisions, criteria or practices which have not yet been applied but which would have a discriminatory effect if they were". Disadvantage is not defined in the Equality Act 2010, but it is usually understood to be a similar concept to "detriment". According to the code, disadvantage could involve the denial of an opportunity or choice, deterrence, rejection or exclusion, but would exclude "an unjustified sense of grievance".

In the words of the Employment Appeal Tribunal (EAT) "It is not sufficient that the practice puts, or would put, only the [complainant] at a particular disadvantage". In Greenland v Secretary of State for Justice EAT/0323/14 (a race discrimination case), Mr Greenland complained that a practice of paying higher fees to parole board members who were judges indirectly discriminated against black non-judicial members of the board. However, while all 36 judicial members were white, there was no evidence that there were any black members apart from Mr Greenland himself among the group of 113 non-judicial members. The EAT stated that: "The wording and purpose of s.19 of the [Equality Act 2010] point to consideration of the potential impact of the practice on the appellant and other non-judicial members of the parole board who share his protected characteristics (not hypothetical, potential future members of the parole board)." The EAT assumed (without deciding) that it would be sufficient if there were at least one other person who shared Mr Greenland's "protected characteristic and that 'persons' in s.19(2)(b) includes the singular as well as the plural". However, if Mr Greenland was in fact the only black non-judicial member, the EAT opined that "this would properly raise the question of whether s.19(2)(b) permitted a hypothetical black person to be included amongst the group for the purposes of the comparison". The EAT concluded that: "On the facts of the present case, there is no scope for including hypothetical persons, that is persons who are not members of the parole board, within the group for comparison. We do not consider that the phrase 'puts or would put persons' includes, in the context of this case, non-existent or hypothetical persons who are not yet members of the parole board." In any event (having regard to s.23 of the Equality Act 2010), on the facts there were material differences "between the retired judges who were members of the parole board and the non-judicial members" which rendered comparison impermissible. The EAT took the view that such an approach "is consistent with the decision of the Court of Appeal in Eweida v British Airways Plc [2010] IRLR 322 CA".

In Essop and others v Home Office (UK Border Agency) [2017] SC 27 SC, the Supreme Court held that claimants in indirect discrimination claims are not required to explain the reason why the provision, criterion or practice (PCP) puts, or would put, the affected group at a particular disadvantage, stating that: "It is enough that it does." In Essop, the PCP was the requirement for all staff to pass an assessment test to be eligible for promotion. Statistical evidence indicated that candidates from black and minority ethnic (BME) backgrounds and candidates over 35 were disproportionately likely to fail the test, although no reason was identified to explain the differential. Mr Essop, along with other unsuccessful candidates, claimed that they suffered a disadvantage compared with white and younger candidates. Overturning the Court of Appeal decision (Essop and others v Home Office (UK Border Agency) [2015] IRLR 724 CA) and upholding the EAT decision (Essop & others v Home Office (UK Border Agency) EAT/0480/13), the Supreme Court held that there is no requirement for the PCP to "put every member of the group sharing the particular protected characteristic at a disadvantage". The Court noted that "The fact that some BME or older candidates could pass the test is neither here nor there. The group was at a disadvantage because the proportion of those who could pass it was smaller than the proportion of white or younger candidates [who could pass the test]."

The Supreme Court decision in Essop is more in line with the European Court of Justice (ECJ) decision in CHEZ Razpredelenie Bulgaria AD v Komisia za Zashtita ot Diskriminatsia [2015] IRLR 746 ECJ (a race discrimination case that did not concern, but is likely to impact on, employment law). In CHEZ, the claimant, who was an occupant in an urban district mainly inhabited by persons of Roma origin, but who was not herself of Roma origin, made a complaint of discrimination that the Roma majority district received less favourable treatment in that their electricity meters were deliberately installed at inconvenient heights in comparison to districts in which the inhabitants were not majority Roma origin where the meters were installed at head height. The ECJ held that it is not necessary for the claimant to share the same characteristic as the protected group to bring a complaint of indirect race discrimination under the Race Directive (2000/43/EC). The ECJ further stated that art.2 of the Race Directive "must be interpreted as precluding a national provision under which, in order for there to be indirect discrimination on the grounds of racial or ethnic origin, the measure in question is required to have been adopted for reasons of racial or ethnic origin".

In Government Legal Service v Brookes [2017] IRLR 780 EAT, the EAT upheld the employment tribunal decision that a requirement for a job applicant with Asperger's syndrome to complete an online multiple-choice psychometric test was indirectly discriminatory. The EAT held that the requirement placed Ms Brookes at a particular disadvantage compared with non-disabled candidates who did not have Asperger's syndrome.

Discrimination arising from disability

Section 15(1) of the Equality Act 2010 provides that a person A discriminates against a disabled person B if:

  • A treats B unfavourably because of something arising in consequence of B's disability; and
  • A cannot show that the treatment in question is a proportionate means of achieving a legitimate aim (see Justification).

Section 15(1) will not apply where A shows that A did not know, and could not reasonably have been expected to know, that B had the disability (s.15(2)) (see Knowledge of disability).

In City of York Council v Grosset [2018] IRLR 746 CA, the Court of Appeal clarified the correct approach to s.15(1). The Court found that, on its proper construction, s.15(1)(a) requires an investigation of two distinct causative issues:

  • Did the employer treat the employee unfavourably because of "something"?
  • Did that "something" arise in consequence of the employee's disability?

The Court said that the first question involves an examination of the employer's state of mind, while the second question is objective because the issue is whether or not there is a causal link between the employee's disability and the relevant "something". Having construed s.15(1), the Court upheld the tribunal decision that the dismissal of a teacher for showing an 18-rated film to his pupils amounted to discrimination arising from his disability. The Court said that the tribunal had been entitled to find that the showing of the film was a "consequence" of the teacher's impaired mental state due to his disability, even though the school had not been aware that his conduct was linked to his disability. The Court stated that there is no requirement under s.15(1) for a claimant to show that the employer knew that the "something" arose in consequence of the employee's disability. The Court said that to decide otherwise would make the defence under s.15(2) redundant (see Knowledge of disability). The Court agreed with the tribunal that there was "no good justification" under s.15(1)(b) and that it had been entitled to find that the step of dismissal was disproportionate in the circumstances. The Court confirmed that the test under s.15(1)(b) is an objective one for the tribunal's own assessment.

In Hall v Chief Constable of West Yorkshire Police EAT/0057/15, a disabled employee was dismissed for gross misconduct because of the employer's genuine but mistaken belief that the employee was falsely claiming that she was sick. The employment tribunal held that, although this amounted to unfavourable treatment, it did not amount to discrimination because the reason for the dismissal was the employer's mistaken belief and not because of something arising from her disability as that connection was too remote. Overturning the tribunal decision, the EAT held that the tribunal had misinterpreted s.15 of the Equality Act 2010 and had mistakenly considered that, for the claim to succeed, the claimant's disability had to be the cause of the employer's action. The EAT held that the tribunal had failed to consider whether or not the employee's disability was an "effective cause of the unfavourable treatment" (even if not the main or sole cause). The EAT also concluded that the motivation for the unfavourable treatment is not relevant. A similar issue arose for consideration in Baldeh v Churches Housing Association of Dudley & District Ltd EAT/0290/18, in which the EAT emphasised that "all that is required is that the 'something' only has to have a 'significant influence' in causing the relevant unfavourable treatment; it does not have to be the sole or principal cause".

In Sheikholeslami v The University of Edinburgh EATS/0014/17, the EAT emphasised that the causation test under s.15 is broad and "may involve several links depending on the facts of a particular case". The EAT said that this means that more than one relevant consequence of the disability may require consideration.

Unfavourable treatment

The Equality Act 2010 explanatory notes state that s.15 of the Act is intended to cover the situation where a disabled person is treated unfavourably not because of the disability itself but because of something arising from, or in consequence of it, "such as the need to take a period of disability-related absence".

The Employment statutory code of practice states that "unfavourable treatment" means that the disabled person must have been put at a disadvantage. In some cases this will be obvious, such as where the employee has been refused employment or dismissed. The code states that the consequences of a disability include "anything which is the result, effect or outcome of a disabled person's disability". The consequences will be varied and will depend on the particular individual concerned. Some consequences, such as the inability to walk unaided, will be obvious. However, other consequences, such as the need for rest breaks or toilet breaks, or difficulties in using public transport, will not. The code cites the example of a woman who is disciplined for losing her temper at work. The code states that her "behaviour was out of character and is a result of severe pain caused by cancer, of which her employer is aware" and that the "disciplinary action is unfavourable treatment ... because ... [it is] something which arises in consequence of the worker's disability, namely her loss of temper". The code explains that: "There is a connection between the 'something' (that is, the loss of temper) that led to the treatment and her disability. It will be discrimination arising from disability if the employer cannot objectively justify the decision to discipline the worker."

In Williams v Trustees of Swansea University Pension and Assurance Scheme and another [2019] IRLR 306 SC, the Supreme Court defined the meaning of "unfavourable" treatment. The Supreme Court agreed with the reasoning of the EAT and the Court of Appeal that:

  • "unfavourable" has a similar meaning to the use of the word in pregnancy discrimination, in the sense of "placing a hurdle in front of, or creating a particular difficulty for, or disadvantaging a person" because of something arising from his or her disability; and
  • treatment that is advantageous cannot be said to be "unfavourable" merely because it could have been more advantageous.

Having made this analysis, the Supreme Court held that an employee, whose working hours had been reduced to accommodate his disability, was not treated "unfavourably" when his enhanced pension on ill-health retirement was based on his final part-time salary, rather than his full-time salary. The Supreme Court said that the relevant treatment in the employee's case was the award of a pension. Turning to the second question, the Supreme Court found there was "nothing intrinsically unfavourable or disadvantageous" about that award because the only basis on which the employee was entitled to it, at the age of 38, was by reason of his disabilities. The Court said that, had the employee been able to work full time, the consequence would not have been an enhanced entitlement, but no immediate right to a pension at all.

In Government Legal Service v Brookes [2017] IRLR 780 EAT, the Employment Appeal Tribunal (EAT) upheld the employment tribunal decision that a requirement for a job applicant with Asperger's syndrome to complete an online multiple-choice psychometric test amounted to discrimination arising from disability.

In Islam v Abertawe Bro Morgannwg Local Health Board EAT/1200/13, the employee's "Asperger's syndrome was the cause of his communication difficulties which themselves gave rise at least in part to the conclusions and recommendations in" a "report which led to the unfavourable treatment of being prevented from working as a consultant" psychiatrist. Although the employment tribunal was prepared to accept that this amounted to unfavourable treatment because of something arising in consequence of the employee's disability, the tribunal found that the treatment was justified. The employer had the legitimate aim of protecting patients and given that it "had evidence of clinical deficiencies on the part of" the employee, which appeared to be unrelated to his disability and that it "could reasonably conclude posed a potential danger to patients" the tribunal held that "excluding him from practising as a consultant was indeed a proportionate means of protecting patients". The EAT upheld the tribunal decision.

The employer in London Borough of Southwark v Charles EAT/0008/14 knew that the employee "suffered from a disability, an inability to attend administrative meetings including redeployment interviews". The EAT upheld the employment tribunal decision that in requiring the employee to attend for interviews to be considered for redeployment, the employer treated him unfavourably because of something arising in consequence of his disability. The employer had not attempted to justify this treatment so the employee's claim succeeded.

In Land Registry v Houghton and others EAT/0149/14, the employees (who had periods of absence that were all attributable to disability) received formal warnings under the employer's sickness absence policy, despite reasonable adjustments made both in respect of the individual employees and in respect of the policy. These warnings rendered the employees ineligible to receive a bonus in the relevant year. The bonus scheme provided no discretion to disregard a warning for sickness absences, although such discretion existed with regard to a warning for conduct. In upholding the employment tribunal finding of discrimination arising from disability the EAT noted that "the bonus was not paid because the claimants had received a disability-related sick absence warning".

In O'Brien v Bolton St Catherine's Academy [2017] IRLR 547 CA, the Court of Appeal held that the employer's decision to disregard new medical evidence and dismiss an employee on long-term sickness absence (of more than a year) amounted to discrimination arising from disability and unfair dismissal. The Court of Appeal found that, while Ms O'Brien's case could fairly be regarded as "near the borderline", the essential point was that by the time of her appeal hearing there was some evidence, albeit not entirely satisfactory, that she was now fit to return to work. In the Court's view, the tribunal was entitled to hold that it was disproportionate and unreasonable for the employer to disregard that evidence without a further medical assessment. The Court acknowledged that the tests for discrimination arising from disability and for unfair dismissal are different, but it said that it would be "a pity if there were any real distinction in the context of dismissal for long-term sickness where the employee is disabled".

In Charlesworth v Dransfields Engineering Services Ltd EAT/0197/16, the EAT held that the employee's disability-related absence (because of cancer) was not the effective cause of the employer's decision to make the employee redundant. Rather, the absence was part of the context in which the employer identified the opportunity to restructure the business and eliminate the employee's post. The EAT noted that the employer could have identified that it could operate its business without the employee in other ways. The employee's absence did not inevitably mean that the employer would identify his post as unnecessary and could have led the employer to conclude that his role was required. The employee's appeal was dismissed.

In Pnaiser v NHS England and another [2016] IRLR 170 EAT, a disabled employee claimed that the withdrawal of a job offer following a negative verbal reference from her former employer amounted to discrimination because of something arising in consequence of her disability. The EAT held that there were facts from which the employment tribunal could infer that the negative comments made by the former employer were made "(at least partly) because of the claimant's absences (which were a consequence of her disability)". Consequently, the EAT concluded that the burden of proof had shifted to the employer to show that the employee's absence, or the consequence of her disability, played no part in the reasons why the former employer said that she was unsuitable for the new post that led to the withdrawal of the job offer. Allowing the employee's appeal, the EAT found that unlawful discrimination had taken place. This case also confirms that the withdrawal of a job offer in response to a negative reference (that itself amounts to discrimination arising from disability under s.15 of the Equality Act 2010) may also amount to discrimination arising from disability.

In Madani Schools Federation v Uddin EAT/0194/16, the EAT held that the employment tribunal "considered causation in relation to all five outstanding complaints of unfavourable treatment together rather than looking at each of them separately". The EAT also held that the tribunal had failed to distinguish and address the two questions in the causation test ("because of something" and "arising in consequence") and should have followed the approach set out by the EAT in Pnaiser v NHS England and another [2016] IRLR 170 EAT.

In Risby v London Borough of Waltham Forest EAT/0318/15, a disabled employee who has a short temper not related to disability (a personality trait rather than an illness) was dismissed after using racist language. The incident arose when the employee became angry while complaining about not being able to access a venue where training was taking place. The employment tribunal decided that the dismissal did not "arise in consequence of" disability. The EAT disagreed with the tribunal and held that, had the employee not been disabled, the issue would not have arisen and he would not have been angered. The EAT remitted the case back to the tribunal to consider whether or not the employee's dismissal was a proportionate means of achieving the legitimate aim of "ensuring and promoting adherence to the Equal Opportunities policy throughout the Council" and, therefore, justified.

Additional resources on discrimination arising from disability

Line manager briefings

Justification

Neither indirect discrimination under s.19 of the Equality Act 2010, or discrimination arising from disability under s.15 of the Act, are unlawful if the application of the provision, criterion or practice, or the unfavourable treatment, can be objectively justified because it is a "proportionate means of achieving a legitimate aim". While this test is not defined in the Equality Act 2010 itself, it embodies principles derived from EU law (see Indirect discrimination and Discrimination arising from disability).

The Employment statutory code of practice states that the aim of the provision, criterion or practice "should be legal, should not be discriminatory in itself and must represent a real, objective consideration" to constitute a "legitimate aim". Business needs and economic efficiency may be legitimate aims but "an employer simply trying to reduce costs or improve competitiveness cannot expect to satisfy the test".

The code states that EU law "views treatment as proportionate if it is an 'appropriate and necessary' means of achieving a legitimate aim". However, the code points out that "necessary" in this context does not mean that the provision, criterion or practice must be the only possible way of achieving the legitimate aim: "it is sufficient that the same aim could not be achieved by less discriminatory means ". In practice, this requires balancing the discriminatory effect of the provision, criterion or practice against the employer's reasons for applying it, taking into account all relevant facts.

It is likely that the same balancing test will be applied to determine whether or not unfavourable treatment because of something arising in consequence of a disability is nevertheless proportionate. The code explains that it is for the employer to justify such treatment. The employer must produce evidence to support its assertion that the treatment is justified "and not rely on mere generalisations".

In Land Registry v Houghton and others EAT/0149/14, the employer's justification defence for automatically excluding employees with a warning for sickness absence from a bonus scheme failed "first, because, having decided to issue a warning for sick absence the manager had no discretion to decide that the employee would not be excluded from receiving the bonus, unlike the position with a warning for conduct". The EAT noted that: "No explanation for that anomaly was forthcoming. Secondly and it followed from that lack of discretion at any stage, no account could be taken of any improvement in performance post-warning … in circumstances where the legitimate aim of the bonus scheme was to reward good performance and attendance."

In Monmouthshire County Council v Harris EAT/0332/14 & EAT/0010/15, the employee was dismissed for lengthy disability-related absence. Allowing the employer's appeal against a finding of discrimination arising from disability, the EAT held that the tribunal had failed to consider whether or not the dismissal was a proportionate means of achieving the employer's aim. The EAT concluded that the tribunal was bound to take into account the fact that there was no continuing obligation to make reasonable adjustments at the time the decision was made to dismiss and the fact that subsequent medical evidence had "continued to provide an uncertain and pessimistic prognosis in terms of the claimant's ability to return to work".

In Buchanan v Commissioner of Police of the Metropolis [2016] IRLR 918 EAT, the employment tribunal found that steps taken under the employer's Unsatisfactory Performance Policy (UPP) amounted to unfavourable treatment because of something arising in consequence of the employee's disability. The employee had been absent from work for eight months with post-traumatic stress disorder, caused by a serious work-related road accident when the brakes on his police motorcycle failed. The employment tribunal relied on the Supreme Court decision in Seldon v Clarkson Wright & Jakes (a partnership) [2012] IRLR 590 SC to support its decision that it was the UPP that required justification, rather than the employer's application of the UPP to the employee. Upholding the employee's appeal, the EAT accepted that there will be cases, such as Seldon, where "A's treatment of B is the direct result of applying a general rule or policy to B". The EAT also stated that: "In such a case whether B's treatment is justified will usually depend on whether the general rule or policy is justified." Further, the EAT accepted that it is usually the general policy or rule itself that must be justified in cases of indirect discrimination, since such a policy or rule normally constitutes the policy, criterion or practice that is applied to the employee. However, the EAT found that neither approach was correct in the circumstances of Buchanan, and remitted the case to the tribunal for re-consideration of the employer's justification defence. The EAT observed that the procedure laid down under the UPP permitted individual assessment at each stage of the case, and it was the application of these steps to the employee that must be justified, not the underlying policy itself. It stated that the tribunal "was required by s.15(2) to look at the treatment itself and ask whether the treatment was proportionate".

In Awan v ICTS UK Ltd [2019] IRLR 212 EAT, the EAT allowed the appeal against the tribunal decision that the employee's dismissal for incapacity was a proportionate means of achieving a legitimate aim. The tribunal had found that, although the employer was contractually obliged to pay the employee long-term disability benefits while he remained employed, the employee had been absent from work for two years and the employer had a legitimate aim of "ensuring employees attended work and did the job they were employed to do". The EAT found that the employee had been dismissed in breach of contract because there was an implied contractual term that prevented the employer from dismissing him while he was entitled to long-term disability benefits. The EAT remitted the case to a fresh tribunal to determine, among other matters, if the dismissal was justified in light of the implied term in the employee's contract.

In Asda Stores Ltd v Raymond EAT/0268/17, the EAT upheld the tribunal decision that the employee was treated less favourably because of something arising in consequence of his disability. In the EAT's view, the tribunal had not erred in finding that the employee's diabetes was the operative cause of his "uncontrollable urge to urinate" in his employer's loading yard, which had led to his dismissal. The EAT agreed with the tribunal that his dismissal was not justified because, while health and safety requirements and risks to reputation damage might be legitimate aims, there was no "significant evidence" to support this in this instance.

It appears that, as in sex discrimination cases, cost alone will not justify the imposition of a discriminatory provision, criterion or practice or unfavourable treatment but may be one of the factors taken into account in the balancing exercise: Cross and others v British Airways plc [2005] IRLR 423 EAT (decided under the repealed Sex Discrimination Act 1975). In Woodcock v Cumbria Primary Care Trust [2011] IRLR 119 EAT, an age discrimination case, the Employment Appeal Tribunal (EAT) held that the decision to dismiss Mr Woodcock before he reached the age of 50 to prevent him from getting a pension "windfall" and avoid the corresponding loss to the trust was a legitimate aim that went beyond the mere wish to reduce costs. The EAT went on to question the current orthodoxy that an employer cannot justify discrimination on the ground of cost alone, and stated that cost alone may be a sufficient justifying factor where the cost of avoiding or rectifying the discriminatory impact of a measure or state of affairs would be "disproportionately high". The EAT noted that in many cases the discriminatory impact will be such that the employer "must avoid or correct it whatever the cost" but in other cases the discriminatory impact will be trivial and the cost of avoiding it enormous. The Court of Appeal dismissed Mr Woodcock's appeal (Woodcock v Cumbria Primary Care Trust [2012] IRLR 491 CA). It noted that almost every decision made by an employer will have regard to costs and observed that the relevant legislation was silent as to "the extent to which considerations of cost may feature in the justification exercise" and concluded from this that the correct question is whether or not treatment that would otherwise be discriminatory "may be justified if it was 'a proportionate means of achieving a legitimate aim'". The Court of Appeal concluded, after reviewing the relevant authorities including decisions of the European Court of Justice (ECJ), that although "the guidance of the Court of Justice is that an employer cannot justify discriminatory treatment 'solely' because the elimination of such treatment would involve increased costs, that guidance cannot mean more than that the saving or avoidance of costs will not, without more, amount to the achievement of a 'legitimate aim'". Accordingly, had the employer's treatment of Mr Woodcock been "no more than treatment aimed at saving or avoiding costs" it would not have been justifiable, but his dismissal notice was "genuinely served, with the aim of giving effect to the trust's genuine decision to terminate his employment on the grounds of his redundancy". This was a legitimate aim and it was also legitimate for the trust "to ensure that, in giving effect to it, the dismissal also saved the trust the additional element of costs that, had it not timed the dismissal as it did, it would be likely to have incurred". Woodcock was concerned with the attempted justification of direct age discrimination under the repealed Employment Equality (Age) Regulations 2006 (SI 2006/1031), but it is likely to remain relevant to the issue of justification under the Equality Act 2010.

A case brought under the Part-Time Workers Directive (Directive 97/81/EC), which was transposed into domestic law by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) has implications for attempted justification on costs grounds under the Equality Act 2010. Following a reference to the ECJ (O'Brien v Ministry of Justice Case C-393/10 ECJ), the Supreme Court held, contrary to a specific provision in the Regulations, that a part-time fee paid judge was a "worker" and as such entitled to the protection of the Regulations. Further, the exclusion of part-time judges from the judicial pension scheme amounted to less favourable treatment that was not objectively justified. The Supreme Court held that "the unequal treatment of different classes of employees must be justified by the existence of precise, concrete factors, characterising the employment condition concerned in its specific context and on the basis of objective and transparent criteria". Commenting on the "pure budgetary consideration" that the pensions payable to full-time judges may have to be reduced if part-time judges receive a pension, the Supreme Court continued: "the fundamental principles of equal treatment cannot depend upon how much money happens to be available in the public coffers at any one particular time or upon how the state chooses to allocate the funds available between the various responsibilities it undertakes". Although the Supreme Court found it "unnecessary ... to express a view upon whether the case of Woodcock was rightly decided" it is clear that Woodcock v Cumbria Primary Care Trust [2012] IRLR 491 CA must now be interpreted in light of O'Brien (O'Brien v Ministry of Justice (formerly Department for Constitutional Affairs) [2013] IRLR 315 SC).

The Employment statutory code of practice explains that while failing to comply with a duty to make reasonable adjustments will not automatically lead to a finding of discrimination arising from disability, if the employer has failed to make a reasonable adjustment that would have prevented the unfavourable treatment experienced by the disabled person it will be very difficult for the employer to show that the treatment was justified. This approach is supported by the ECJ in Ring v Dansk almennyttigt Boligselskab DAB; Skouboe Werge v Dansk Arbejdsgiverforening Cases C-335/11 and C-337/11 ECJ, which was concerned with Danish legislation that provided for dismissal with a reduced notice period where the worker concerned had been absent because of illness (which could be disability-related) with his salary being paid for 120 days during the previous 12 months. The ECJ held that the Equal Treatment Framework Directive (2000/78/EC) precluded such a measure where the disabled employee's absences were "the consequence of the employer's failure to take the appropriate measures in accordance with the obligation to provide reasonable accommodation laid down in art.5 of" the Directive.

However, where the worker's absences were because of "illness attributable wholly or partly to his disability" rather than "to the employer's failure to take the appropriate measures" the resulting indirect discrimination against disabled people (who are "more exposed to the risk of application of the shortened notice period") was capable of being objectively justified. The Danish legislation pursued "the legitimate aims of, first, promoting the recruitment of persons with illnesses and, secondly, striking a reasonable balance between the opposing interests of employees and employers with respect to absences because of illness" but it remained to be established that the legislation did not go beyond what was necessary to achieve those aims, which was a matter for the domestic court to assess.

Reasonable adjustments

The duty to make reasonable adjustments is a unique feature of disability discrimination law. A failure to comply with the duty to make reasonable adjustments constitutes discrimination under s.21 of the Equality Act 2010, unless the employer lacks relevant knowledge (see Knowledge of disability).

In some circumstances two or more people will be under a duty to make reasonable adjustments in relation to the same disabled person and in that case, the Act provides that each person must comply with the duty "so far as it is reasonable for each of them to do so" (para.2 of sch.8 to the Act). However, an employer of a disabled contract worker must comply with the duty to make reasonable adjustments "on each occasion when [that employee] is supplied to a principal to do contract work" (para.5 of sch.8 to the Act) and in those circumstances the principal is not required to do anything that the disabled person's employer is required to do.

In Hainsworth v Ministry of Defence EAT/0227/13, the Employment Appeal Tribunal (EAT) confirmed that employers do not have a duty to make reasonable adjustments where an individual has an association with a disabled person. The Court of Appeal subsequently upheld the EAT decision (Hainsworth v Ministry of Defence [2014] IRLR 728 CA).

Section 20 provides that the duty to make reasonable adjustment comprises three requirements.

First, where a provision, criterion or practice of the employer's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, the employer is required to take such steps as it is reasonable to have to take, to avoid the disadvantage.

Second, where a physical feature of premises occupied by the employer puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, the employer is required to take such steps as it is reasonable to have to take, to avoid the disadvantage.

Third, where a disabled person would, but for the provision of an auxiliary aid (or an auxiliary service), be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled the employer is required to take such steps as it is reasonable to have to take, to provide the auxiliary aid.

A disabled person to whom a duty to make reasonable adjustments is owed under the Equality Act 2010 cannot be asked to pay, or contribute towards, the cost of complying with the duty (s.20(7)).

A failure to comply with the first, second or third requirement amounts to a failure to comply with the duty to make reasonable adjustments. Where an employer fails in this duty in relation to a disabled person, this constitutes discrimination against that person. However, the employer will not be liable if it did not know, or could not reasonably be expected to know, that the employee or potential or actual job applicant has a disability and is likely to be placed at a substantial disadvantage (see Knowledge of disability).

The duty to make reasonable adjustments continues to apply after employment has ended in so far as a disabled person continues to be placed at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled (s.108(4) of the Equality Act 2010).

Schedule 8 to the Equality Act 2010 deals with reasonable adjustments at work in more detail, defining, for example, the term "relevant matter". Schedule 21 to the Act contains detailed supplementary provisions concerning reasonable adjustments that persons (including an employer) are required to consider in relation to rented premises that would require the landlord's consent. There is also provision in the Act for regulations to be produced prescribing matters to be taken into account in deciding whether or not a particular step is reasonable and specifying descriptions of persons to whom the duty does not apply.

Additional resources on reasonable adjustments

Good practice guides

Line manager briefings

First requirement to adjust a provision, criterion or practice and second requirement to adjust a physical feature

In relation to the first requirement to adjust a provision, criterion or practice, and the second requirement to adjust a physical feature, although the formulation of the duty of reasonable adjustments has changed, it is anticipated that, as under the previous legislation, a tribunal cannot properly make a finding that an employer failed to make reasonable adjustments in relation to the first or second requirement without first addressing what, if any, duty to make reasonable adjustments arose under s.20. It must therefore identify:

  • the provision, criterion or practice applied by the employer, and/or physical feature of the premises occupied by the employer;
  • the identity of the non-disabled comparators where appropriate; and
  • the nature of the substantial disadvantage suffered by the employee.

Without going through this process, the tribunal is unable to say what adjustments were reasonable to prevent the provision, criterion, practice or feature placing the employee at a substantial disadvantage (Environment Agency v Rowan [2008] IRLR 20 EAT) (decided under the now repealed Disability Discrimination Act 1995).

In Owen v Amec Foster Wheeler Energy Ltd and another [2019] EWCA Civ 822 CA, the provision, criterion or practice that put the employee at a substantial disadvantage was the requirement "to pass a medical examination to a certain level before being sent on international assignment". The Court of Appeal held that there was no reasonable adjustment that the employer could have made as the employee's multiple medical conditions made a medical assessment necessary. The Court also noted that the employer had followed a fair and reasonable procedure and acted on independent medical advice.

In Government Legal Service v Brookes [2017] IRLR 780 EAT, job applicants were required to complete an online multiple-choice psychometric test. Ms Brookes, an applicant with Asperger's syndrome, requested adjustments to the test to allow her to submit her answers in short narrative form, but her request was refused. Upholding the employment tribunal decision, the EAT held that the employer had failed to comply with its duty to make reasonable adjustments under s.20 of the Equality Act 2010.

In Lonsdale v Redcar and Cleveland Primary Care Trust EAT/0090/12, a band 6 senior occupational therapist was redeployed to a band 4 post in 2009 following a serious deterioration in her vision. Had she not become disabled she would have been able to compete for a band 6 post during a restructuring exercise in 2010. Upholding the employment tribunal decision that the employer had failed to comply with the duty to make reasonable adjustments under s.20(3) of the Equality Act 2010, the EAT stated that in all the circumstances it was not unreasonable for the employer to make an exception under its HR framework "to allow for the [employee's] disability and its consequences" by permitting her to apply for the band 6 post, even though it was more than one band above her substantive post. The employee's dismissal was also discriminatory: the employer's failure to allow the employee to apply for the higher grade post "meant that her dismissal by reason of redundancy was inevitable. That is sufficient to amount to a discriminatory dismissal under s.20(3) read with s.39(2)(c)" of the Equality Act 2010.

In Secretary of State for Work and Pensions (Jobcentre Plus) v Higgins EAT/0579/12, the EAT held that where an employer is alleged to be in breach of the duty to make reasonable adjustments imposed by s.20(3) of the Equality Act 2010, the statutory wording (to which the tribunal would be advised to adhere) requires that "the tribunal should identify (1) the employer's [provision, criterion or practice] at issue, (2) the identity of the persons who are not disabled ... with whom [the] comparison is made, and (3) the nature and extent of the substantial disadvantage suffered by the employee. Without these findings the tribunal is in no position to find what (if any) step it is reasonable for the employer to have to take to avoid the disadvantage." On the facts, the employer had granted the reduced hours that the employee had said he was capable of working. In those circumstances, the EAT did not see "why it will generally also be necessary for the employer to give some explicit guarantee of future review. If, at the end of the period, the employee continues to be under a substantial disadvantage, the duty to make an adjustment will still be applicable and can be judged in the circumstances at that time."

In Wade v Sheffield Hallam University EAT/0194/12 (decided under the repealed Disability Discrimination Act 1995), the employee contended that she should not have been subjected to a competitive interview as part of a restructuring process. The EAT upheld the employment tribunal decision that such an adjustment was not reasonable because on the facts it would have entailed appointing the employee to a post for which "she was not appointable by reason of being found wanting under the majority of ... eight essential criteria".

In Roberts v North West Ambulance Service EAT/0085/11 (decided under the now repealed Disability Discrimination Act 1995), the Employment Appeal Tribunal (EAT) emphasised that it is not necessary and will generally be unhelpful for a tribunal to ask whether or not a provision, criterion or practice (PCP) (in this case, "hot-desking") was applied to the disabled person. The EAT stated that: "There will, we think, sometimes be cases where PCPs which are applied to others at work place the disabled person at a substantial disadvantage even if they are not applied directly to the disabled person." Although the PCP was not applied to the employee because he was not required to sit in any place other than his preferred seat, he continued to be affected by the hot-desking because other people who were required to hot-desk were still sitting in and intending to use his preferred seat when he arrived for work. The tribunal should have considered whether or not this situation put the employee at a substantial disadvantage. This decision is likely to remain relevant under the Equality Act 2010.

In Environment Agency v Donnelly EAT/0194/13 (decided under the now repealed Disability Discrimination Act 1995), the EAT upheld the employment tribunal finding that in failing to provide a car parking space the employer breached its duty of reasonable adjustment. The tribunal had held that: "A requirement for Miss Donnelly to walk a distance from her car to the office in the prevailing cold weather and possibly on uneven surfaces was clearly a provision criterion or practice that significantly disadvantaged her."

In United First Partners Research v Carreras [2018] EWCA Civ 323 CA, the Court of Appeal found that the tribunal had taken too narrow an approach to identifying the PCP. In the Court of Appeal's view, the term "requirement" does not necessarily carry a connotation of "coercion" and, depending on the context, may represent no more than a strong form of "request". The Court of Appeal went on to hold that a pattern of repeated requests that a disabled employee work in the evenings, which created a pressure on him to agree, was capable of amounting to a PCP under the Equality Act 2010.

Substantial disadvantage

Substantial disadvantage is defined as meaning "more than minor or trivial", reflecting the meaning that the term acquired in case law decided under the repealed Disability Discrimination Act 1995. In Cave v Goodwin [2001] EWCA Civ 391 CA (decided under the repealed Disability Discrimination Act 1995), an employee with learning difficulties brought a claim that the employer had failed to comply with the duty to make reasonable adjustments because he had not been allowed to bring a friend to a disciplinary hearing. The employer had a policy that allowed only a work colleague to accompany him to the hearing. The Court of Appeal found that he had not been placed at a "substantial" disadvantage, as he was able to express himself orally in a confident manner and could understand what was going on. It was stated that the term "substantial" as used here should be regarded as "something more than minor and more than trivial", rather than as "major".

This decision was reached despite the code of practice that was in force at the time providing that an employer "may be in breach of the duty to make a reasonable adjustment" if it does not allow for an employee with a learning disability to have a friend present at a disciplinary hearing. The Court of Appeal pointed out that the code of practice did not say "will be in breach" but said merely "may be in breach". The Employment statutory code of practice suggests that a suitable way of modifying a disciplinary or grievance procedure would be to allow a person with learning difficulties to take a friend (who does not work with him or her) to a grievance meeting.

In Keane v Investigo and others EAT/0389/09 (decided under the now repealed Employment Equality (Age) Regulations 2006 (SI 2006/1031)), an age discrimination case that may have implications for the "substantial disadvantage" test, the EAT upheld an employment tribunal finding that a job applicant whose applications were not genuine had not suffered a detriment. Therefore her claims for direct and indirect age discrimination failed.

In some situations an employer may have to adjust the duties of a job to enable a disabled employee to continue to work. However, in Hart v Chief Constable of Derbyshire Constabulary EAT/0403/07 (decided under the repealed Disability Discrimination Act 1995) the EAT held that it was not reasonable for a police authority to lower national standards to enable a probationer who could not carry out core tasks because of her disability to complete her probationary period. The main reason was that the Chief Constable was both employer and regulator, with the latter role involving an assessment of trainees' competence against national criteria. The position might well have been different for an existing police constable who had become disabled after having passed their probationary period. The Court of Appeal refused Ms Hart's application for permission to appeal (Hart v Chief Constable of Derbyshire Constabulary [2008] EWCA Civ 929 CA).

In NTL Group Ltd v Difolco [2006] EWCA Civ 1508 CA the claimant, who was disabled, was made redundant, although not for a discriminatory reason. The employer proposed that she apply for a full-time job, saying that if she was successful it might be possible for her to work part time. She did not apply for the job and her employment was ended. The Court of Appeal held that the duty to make reasonable adjustments was triggered only when the arrangements placed the disabled person at a substantial disadvantage. Until the claimant had applied for the job, the duty was not triggered. Thus, employers are not required to ensure that their working arrangements will never disadvantage a disabled person. It is only when arrangements place a disabled person at a disadvantage that the duty arises. NTL Group Ltd was also decided under the repealed Disability Discrimination Act 1995, but it seems likely that a similar approach would apply under the Equality Act 2010.

In Heggie v Secretary of State for Work and Pensions (Jobcentre Plus) EAT/0482/07 (decided under the repealed Disability Discrimination Act 1995), the claimant was not fit to return to work in any capacity for the foreseeable future. Allowing an appeal against a tribunal finding that the employer had failed to comply with the reasonable adjustments duty, the EAT found that the need to consider adjustments such as temporary demotion, reduced hours or reduced responsibility did not arise until the employee was capable of returning to work in some capacity.

In Howorth v North Lancashire Teaching Primary Care Trust EAT/0420/13 & EAT0487/13, Ms Howorth pleaded guilty to charges of theft, battery and dangerous driving committed when suffering from a mental impairment that amounted to a disability. Having been dismissed from her health visitor post because of these convictions, she was subsequently not appointed to a health visitor post because of them. The employment tribunal found that the employer's application of a provision, criterion or practice that such applicants should "not have any recent criminal convictions for theft and battery" put Ms Howorth at a substantial disadvantage but that it would not have been a reasonable adjustment to remove the conviction from consideration because the job for which she applied "was covered by the respondent's (and the NHS's) policy of enhanced disclosure". Dismissing an appeal by Ms Howorth, the EAT held that the tribunal decision was not perverse.

The employer in London Borough of Southwark v Charles EAT/0008/14, knew that the employee "suffered from a disability, an inability to attend administrative meetings including redeployment interviews". The EAT upheld the employment tribunal decision that, in failing to dispense with its practice of "requiring those in the redeployment pool to attend for interview for the post for which they were applying", the employer put the employee at a substantial disadvantage and breached its duty of reasonable adjustment.

Third requirement to provide an auxiliary aid

It is suggested that the approach outlined above will also apply to the third requirement to provide an auxiliary aid.

Comparator

In a reasonable adjustments case the comparison does not have to be between cases in which there is no material difference. In other words, there is no need for the "like-for-like" comparison that applies in cases of direct and indirect disability discrimination. The Employment statutory code of practice states that "under the duty to make adjustments there is no requirement to identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person's". This appears to reflect the approach taken in cases decided under the now repealed Disability Discrimination Act 1995. In Fareham College Corporation v Walters [2009] IRLR 991 EAT, the Employment Appeal Tribunal (EAT) considered the requirement, as restated in Environment Agency v Rowan [2008] IRLR 20 EAT, for tribunals considering reasonable adjustment claims to consider "the identity of the non-disabled comparators (where appropriate)". In Fareham College Corporation, the EAT stated that the use of the words "where appropriate" by the EAT in Rowan recognised that it may not always be necessary to identify the non-disabled comparators.

In Foster v Cardiff University EAT/0422/12 (decided under the Equality Act 2010 with reference to cases decided under the repealed Disability Discrimination Act 1995), the EAT rejected the employee's argument that the identification of non-disabled comparators for the purposes of a reasonable adjustments claim was incompatible with the Equal Treatment Framework Directive (2000/78/EC). The EAT stated that: "Domestic legislation, as currently interpreted in the authorities to date ... requires there to be not merely a substantial disadvantage but a substantial disadvantage in comparison with a person who does not have the relevant disability. In our judgment, that is consistent with the requirements of the Directive and there is nothing incompatible between domestic legislation, so interpreted, and the Directive."

In Ishola v Transport for London EAT/0184/18, a malfunction with the employer's payroll system led to overpayments of contractual sick pay being made, which were recouped at a later date. The claimant argued that his employer ought, as a reasonable adjustment, to have notified him of the "payroll end dates". The employment tribunal held that the operation of the employer's payroll system was a provision, criterion or practice, but that there was no group disadvantage as the malfunction "would have an adverse effect on all employees on sick pay, disabled or not". In allowing the appeal, the EAT held that the tribunal should have asked "whether the payroll malfunction had the same degree of adverse effect on those employees" such as the claimant "on sick pay due to a mental health disability, as on those employees on sick pay (whether or not disabled in the statutory sense) for a different reason, not due to a mental health disability". The issue was remitted to the tribunal for reconsideration.

Reasonable steps

The employer is required to take such steps as it is reasonable to have to take to avoid the substantial disadvantage sustained by the disabled person.

In contrast with previous legislation, the Equality Act 2010 does not set out examples of the kinds of steps that an employer may have to take in relation to a disabled worker. However, a list of possible reasonable steps similar to that previously contained in the now repealed Disability Discrimination Act 1995 appears in the Employment statutory code of practice. Although it is not an exhaustive list, it includes:

  • making adjustments to premises;
  • allocating some of the disabled person's duties to another person;
  • transferring them to fill an existing vacancy;
  • altering their hours of working or training;
  • assigning them to a different place of work or training;
  • allowing them to be absent during working or training hours for rehabilitation, assessment or treatment;
  • giving or arranging for training or mentoring (whether for the disabled person or any other person);
  • acquiring or modifying equipment;
  • providing information in accessible formats;
  • modifying procedures for testing or assessment;
  • providing a reader or interpreter;
  • providing supervision or other support;
  • allowing the disabled employee to take a period of disability leave;
  • participating in supported-employment schemes, such as Workstep;
  • employing a support worker to assist the disabled employee;
  • modifying disciplinary or grievance procedures;
  • adjusting redundancy selection criteria; and
  • modifying performance-related pay arrangements.

In G4S Cash Solutions (UK) Ltd v Powell [2016] IRLR 820 EAT, the Employment Appeal Tribunal (EAT) held that protecting an employee's pay may be a reasonable adjustment to counter a disabled employee's disadvantage. The EAT could find no reason, in principle, why s.20 of the Equality Act 2010 should be read as excluding any requirement on an employer to protect an employee's pay in conjunction with other measures to counter the disabled employee's disadvantage. The question will always be whether or not it is reasonable for the employer to have to take that step. In the EAT's view, pay protection should not be excluded as a "step", because it is no more than another potential form of cost and the objectives of the discrimination legislation "plainly envisage an element of cost to the employer". The EAT did not see that the decision in O'Hanlon v Commissioners for HM Revenue & Customs [2007] IRLR 404 CA (see below) suggested anything to the contrary.

In South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Billingsley EAT/0341/15, the EAT upheld the employment tribunal decision that the employer should not have subjected a dyspraxic employee to performance reviews before it had implemented all reasonable adjustments, which (according to the employment tribunal) may have "assisted the claimant to improve her performance and thus could have led to her avoiding the dismissal". Dismissing the appeal, the EAT held that the tribunal was entitled to find that the employer's actions amounted to disability discrimination and unfair dismissal.

The fact that a disabled employee has not proposed a particular step does not prevent it from being a reasonable step that the employer should take. In Home Office (UK Visas & Immigration) v Kuranchie EAT/0202/16, the EAT upheld the employment tribunal's decision that reducing the dyslexic employee's workload "would have cured the disadvantage" of her not being able to complete her workload within normal working hours due to her disability. Consequently, the employer's failure to take such a step amounted to a failure to comply with the duty to make reasonable adjustments.

In Ring v Dansk almennyttigt Boligselskab DAB; Skouboe Werge v Dansk Arbejdsgiverforening Cases C-335/11 and C-337/11 ECJ, the European Court of Justice (ECJ) confirmed that an employer's duty of reasonable adjustment can include an obligation to consider a reduction in hours. The ECJ held that: "Article 5 of [the Equal Treatment Framework Directive (2000/78/EC)] must be interpreted as meaning that a reduction in working hours may constitute one of the accommodation measures referred to in that article. It is for the national court to assess whether, in the circumstances of the main proceedings, a reduction in working hours, as an accommodation measure, represents a disproportionate burden on the employer." Ring also confirmed that the Equal Treatment Framework Directive must, as far as possible, be interpreted in a manner that is consistent with the United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009. The Convention defines "Reasonable accommodation" as "necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms" (art.2).

The Employment statutory code of practice makes clear that sometimes it may be necessary for an employer to take a combination of steps, and points out that sometimes the cooperation of other employees may be important in helping to ensure that a reasonable adjustment is carried out in practice.

The non-exhaustive nature of the list that appeared in previous legislation was emphasised in Jelic v Chief Constable of South Yorkshire Police EAT/0491/09 (decided under the repealed Disability Discrimination Act 1995), in which the EAT upheld an employment tribunal decision that swapping a disabled police officer's role with that of another officer would have constituted a reasonable adjustment in the circumstances. However, the EAT allowed the employer's appeal against the tribunal finding that it would have been reasonable medically to retire the disabled police officer and immediately re-employ him in a vacant civilian post because its "decision on what is clearly a point of some importance is inadequately reasoned and cannot stand".

The Employment statutory code of practice states that there "is no onus on the disabled worker to suggest what adjustments should be made (although it is good practice for employers to ask)." The code goes on to state that: "Where the disabled person does so, the employer should consider whether such adjustments would help overcome the substantial disadvantage, and whether they are reasonable." The fact that an employee or their advisers cannot suggest a reasonable adjustment does not mean that the employer has discharged its duty. The duty to make adjustments is upon the employer: Cosgrove v Caesar & Howie [2001] IRLR 653 EAT (decided under the repealed Disability Discrimination Act 1995).

In Project Management Institute v Latif [2007] IRLR 579 EAT (decided under the repealed Disability Discrimination Act 1995), the EAT, following Cosgrove, noted that a depressed employee is not in the best position to make suggestions about reasonable adjustments. However, by the time the case is heard before a tribunal, there must be some indication about what adjustments it is alleged should have been made. The employer must be able to understand the broad nature of the adjustment proposed, so that it can decide if it could reasonably be achieved. The EAT also said that, in certain circumstances, it would be appropriate for the matter to be raised by the tribunal itself, particularly if the employee is not represented. In Latif the tribunal had been entitled to conclude that the adjustment would, in all likelihood, have emerged had there been full consultation at an earlier stage, and it would have been reasonable for the employer to adopt it. The tribunal must identify with some particularity what step it is that an employer has allegedly failed to take. The detail will depend on the circumstances but it may, for example, be sufficient for it to find that there were other jobs to which the claimant could have been moved (HM Prison Service v Johnson [2007] IRLR 951 EAT) (decided under the repealed Disability Discrimination Act 1995).

There were conflicting decisions under the previous legislation as to whether or not an employer was under a duty to consult an employee about what reasonable adjustments were necessary, and whether or not failure to do so would in itself be a breach of the now repealed Disability Discrimination Act 1995. In Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566 EAT, the EAT held that a proper assessment of what is required to eliminate a disabled person's disadvantage was a necessary part of the duty to make reasonable adjustments.

On the other hand, in Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 EAT (which was also decided under the repealed Disability Discrimination Act 1995), the EAT held that the employer is not under a separate and distinct duty to consult an employee about what adjustments were necessary. The EAT held that whether or not there had been consultation did not affect the question as to whether or not the employer had complied with the obligation to make reasonable adjustments. However, it also said that an employer would be wise to consult in order to determine what adjustments should reasonably be made, as failure to do so would increase the risk that the employer had failed to make appropriate adjustments out of ignorance. In Salford NHS Primary Care Trust v Smith EAT/0507/10 (decided under the repealed Disability Discrimination Act 1995), the EAT held that matters "such as consultations and trials, exploratory investigations and the like do not qualify" as reasonable adjustments because they "do not have the effect of alleviating the disabled person's substantial disadvantage".

Several cases decided under the now repealed Disability Discrimination Act 1995 followed Tarbuck and, in Scottish and Southern Energy plc v Mackay EATS/0075/06, Mr Justice Elias, the President of the EAT, observed that "unless and until the Court of Appeal rules otherwise, we follow the Tarbuck line". Since neither the Equality Act 2010 nor the Employment statutory code of practice suggest that the employer is under a duty to consult (as opposed to consulting as a matter of good practice) it appears that the Tarbuck approach will remain.

In Chief Constable of Lincolnshire Police v Weaver EAT/0622/07 (decided under the now repealed Disability Discrimination Act 1995), the EAT held that, when deciding whether or not an adjustment was reasonable, the tribunal erred in looking at the case from only the employee's perspective. Considerations relevant to the employer's operational needs could also be taken into account. In Garrett v Lidl Ltd EAT/0541/08, which was also decided under the repealed Disability Discrimination Act 1995, the EAT held that an employer complied with its duty to make reasonable adjustments for disabled employees when it moved an employee to another location where the adjustments could be more easily made.

In Aitken v Commissioner of Police of the Metropolis EAT/0226/09 (decided under the repealed Disability Discrimination Act 1995), the EAT upheld the employment tribunal decision dismissing the employee's claim that the employer had failed to comply with the duty to make reasonable adjustments. The EAT stated that: "In assessing the reasonableness of the adjustments [the employment tribunal] was entitled to have regard to the need that a police officer should not appear to present a danger to colleagues or the public." Mr Aitken's further appeal was dismissed by the Court of Appeal (Aitken v Commissioner of Police of the Metropolis [2011] EWCA Civ 582 CA).

In Romec Ltd v Rudham EAT/0069/07 (also decided under the repealed Disability Discrimination Act 1995), the EAT said that, in determining whether or not an employer has complied with the duty to make reasonable adjustments the critical question is whether or not there is a real prospect that the adjustment would have removed the disadvantage suffered by the employee. It is only where the making of a specific adjustment would be likely to lead to the disabled employee's disadvantage being removed that such an adjustment will be reasonable. The tribunal should then go on to consider if the adjustment was a reasonable one to make. This approach was adopted in Salford NHS Primary Care Trust v Smith EAT/0507/10 (decided under the repealed Disability Discrimination Act 1995), in which the EAT confirmed that reasonable adjustments are "primarily concerned with enabling the disabled person to remain in or return to work with the employer" with the result that a proposed adjustment that does not have the effect of preventing the provision, criterion or practice from placing the employee at the substantial disadvantage will not be a reasonable adjustment. However, in Leeds Teaching Hospital NHS Trust v Foster EAT/0552/10 (decided under the repealed Disability Discrimination Act 1995), the EAT held that: "there was no need for the tribunal to go as far as to find that there would have been a good or real prospect of Mr Foster being redeployed if he had been on the redeployment register between January and June 2008. It would have been sufficient for the tribunal to find that there would have been just a prospect of that." The EAT went on to say that this was not inconsistent with Romec Ltd v Rudham EAT/0069/07 because in that case the EAT "was saying that if there was a real prospect of an adjustment removing the disabled employee's disadvantage, that would be sufficient to make the adjustment a reasonable one, but [it] was not saying that a prospect less than a real prospect would not be sufficient to make the adjustment a reasonable one".

In Lonsdale v Redcar and Cleveland Primary Care Trust EAT/0090/12, the EAT noted Romec Ltd and added that in any event the employee's loss of a chance of successfully applying for a post during a redundancy exercise could "properly be reflected in the assessment of loss arising from the failure to make the relevant adjustment at the remedy stage in the same way that the loss of a chance falls to be assessed under the Polkey principle when assessing the compensatory award for unfair dismissal".

In Islam v Abertawe Bro Morgannwg Local Health Board EAT/0200/13, the employment tribunal found that it would not have been reasonable for the employer to make certain adjustments that (the tribunal was prepared to accept) would have alleviated the disadvantage suffered by the employee as a result of his being subjected to a provision, criterion or practice. This was because the employee's "clinical deficiencies, which were not on the evidence connected with his disability, would have prevented him working as a consultant" psychiatrist in any event. The EAT upheld the tribunal decision.

In HM Land Registry v Wakefield EAT/0530/07 (decided under the repealed Disability Discrimination Act 1995), the EAT held that there is no principle of law that, if an employee honestly asserts that a particular step is necessary, that step should be taken unless the employer establishes a good reason for not taking it. The honesty or otherwise of the employee's assertion does not put any burden on the employer to prove a good reason why a particular step was not taken. It is simply a factor that will be taken into account by the tribunal when determining whether or not it is objectively reasonable to require the employer to make the disputed adjustment. In Makuchova v Guoman Hotel Management (UK) Ltd EAT/0279/14, the employee had refused to consider a return to her previous role notwithstanding the employer's assurances that the adjustments would be observed. The EAT upheld the employment tribunal decision that, in those circumstances, the employer had not failed in its duty of reasonable adjustment by not yielding to the employee's request to be moved to an alternative role and be given the requisite training for that role "when there were other jobs available, including her own if adjusted, which she could have undertaken without training".

In EA Gibson Shipbrokers Ltd v Staples EAT/0263/07 (decided under the repealed Disability Discrimination Act 1995), the EAT held that the employment tribunal was entitled to form the opinion that the suggested adjustments, taken cumulatively, might have prevented the claimant's dismissal. It was not required to examine whether or not each individual adjustment might have had that effect before hearing submissions from the employer on the issues of likely effectiveness, proportionality and cost.

In Hay v Surrey County Council [2007] EWCA Civ 93 CA (decided under the repealed Disability Discrimination Act 1995), the Court of Appeal overturned the employment tribunal decision that the claimant's disability could have been accommodated by adjustments to her job on the basis that the tribunal had ignored medical evidence that showed that adjustments would have been futile. In Olenloa v North West London Hospitals NHS Trust EAT/0599/11 (argued under the repealed Disability Discrimination Act 1995 and the Equality Act 2010), the EAT held that the employment tribunal had erred in concluding that the employer ceased to be under an obligation to make reasonable adjustments for the employee when he went on sick leave "without finding as a fact" that the employee "would not have remained or returned to work" even if reasonable adjustments had been made. This error undermined the basis of the tribunal's conclusion that the claims were presented out of time and the issue was remitted to the tribunal for determination at the full merits hearings of the employee's other claims.

The Court of Appeal in O'Hanlon v Commissioners for HM Revenue & Customs [2007] IRLR 404 CA (decided under the repealed Disability Discrimination Act 1995), approving the EAT decision (O'Hanlon v The Commissioners for HM Revenue & Customs [2006] IRLR 840 EAT), held that it will be only in exceptional cases that an employer will be obliged to pay a disabled employee more sick pay than it would a non-disabled employee. The Court of Appeal decision in Nottinghamshire County Council v Meikle [2004] IRLR 703 CA (also decided under the repealed Disability Discrimination Act 1995) would still apply where the loss of pay is attributable to a discriminatory decision by the employer, such as the failure to make reasonable adjustments.

In Griffiths v Secretary of State for Work and Pensions [2016] IRLR 216 CA, the Court of Appeal held that the duty to make reasonable adjustments will normally be engaged in a case where a disabled employee has disability-related absences that trigger the application of an attendance policy. The Court dismissed the appeal in Griffiths on the ground that, on the particular facts of the case, the adjustments sought were not reasonable. However, the Court indicated that claims may also potentially be brought on the same facts for discrimination arising from a disability under s.15 of the Equality Act 2010. A dismissal could constitute discrimination arising from disability if the absences were the result of the disability and it was not a proportionate response in all the circumstances.

In Perratt v City of Cardiff Council EAT/0079/16, the EAT held that the employer's duty to consider the adjustment of allowing an employee with a poor memory (caused by a disability) to record meetings was triggered. Adopting the same language used by the Court of Appeal in Griffiths v Secretary of State for Work and Pensions [2016] IRLR 216 CA, the EAT reaffirmed that the duty is triggered when there is a provision, criterion or practice that "bites harder" on the disabled employee than others. The EAT remitted the case back to the tribunal to decide whether or not the suggested adjustment was reasonable.

In General Dynamics Information Technology Ltd v Carranza EAT/0107/14, the EAT was prepared to accept "that formally revoking a final written warning" for sickness absence might be a "step" for the purposes of s.20(3) of the Equality Act 2010 but took the view that "the mere mental process of disregarding a warning seems … quite different from the kind of step which is contemplated by s.20(3)". Upholding the employer's appeal, the EAT held that, in apparently finding that the reasonable "step" that the employer should have taken was to disregard the final written warning, the employment tribunal had not in fact identified "any 'step' for the purposes of s.20(3), concentrating instead on the respondent's process of reasoning. In any event the majority set out no sustainable basis for saying that disregarding the final written warning was a step which it was reasonable for the respondent to have to take."

Prior to 1 October 2004, the provision in the now repealed Disability Discrimination Act 1995 dealing with reasonable adjustments referred to "arrangements" rather than a "provision, criterion or practice". However, some of the principles that were established may remain relevant to cases decided under the Equality Act 2010. The EAT in Kenny v Hampshire Constabulary [1999] IRLR 76 EAT (decided under the repealed Disability Discrimination Act 1995) held that not all "arrangements" that might be necessary to enable a disabled person to work fall within the duty to make adjustments. Only job-related arrangements are covered. Reasonable adjustments are not intended to cover everything that an employer could do, eg provide transport to and from work or a personal carer to assist with the disabled person's personal needs while at work. However, the Employment statutory code of practice suggests that employing a support worker to accompany an adviser with a visual impairment who sometimes has to make home visits might be a reasonable adjustment.

The House of Lords in Archibald v Fife Council [2004] IRLR 651 HL (decided under the repealed Disability Discrimination Act 1995), held that the duty to make reasonable adjustments could require an employer to treat a disabled person more favourably than others in some circumstances. The duty could require an employer to transfer an employee who was no longer able to do her original job because of disability to another position for which she was qualified, without competitive interview, even if the post was at a higher grade, if this was reasonable in the circumstances. The House of Lords remitted the case to the employment tribunal to decide whether or not it would have been a reasonable adjustment for the council to set aside its policy that people seeking employment at a higher grade had to undertake competitive interviews, in order to place an employee who, due to disability, was no longer able to do her job as a road sweeper, in a sedentary post, where there was a vacancy that she was qualified to fill. The employee was at a substantial disadvantage compared to non-disabled people when she could no longer walk and sweep, and was liable to be dismissed for incapacity.

The Court of Appeal in Smith v Churchills Stairlifts plc [2006] IRLR 41 CA (decided under the repealed Disability Discrimination Act 1995), applying Archibald, took a wide approach to the identification of "arrangements", which it considered to include not only the requirement to be able to carry a full-sized radiator cabinet as part of a salesman's job, but also the susceptibility to withdrawal of a place on a training course if the claimant was, or was believed to be, unable to carry such a cabinet. The comparison for determining whether or not the disabled person was put at a substantial disadvantage compared to persons who were not disabled should be identified by reference to the disadvantage caused by the relevant arrangements. In this case the correct comparison was with people admitted to the training course.

The EAT in Southampton City College v Randall [2006] IRLR 18 EAT (decided under the repealed Disability Discrimination Act 1995), held that the creation of a new post in substitution for an existing post could, depending on the facts of the case, be a reasonable adjustment. For example, if there was to be a restructuring and a job could be created, it might be reasonable to do so.

In Croft Vets Ltd and others v Butcher EAT/0430/12 & EAT/0562/12 (decided under the repealed Disability Discrimination Act 1995), the medical evidence obtained by the employer from a private consultant psychiatrist, Dr Parry, was that the employee was suffering from predominantly work-related stress. The employer failed to act upon Dr Parry's recommendation that it should give "sympathetic consideration to funding further sessions", including six more psychiatric sessions at a cost not exceeding £750 and sessions with an experienced clinical psychologist for work including cognitive behavioural therapy. The EAT upheld the employment tribunal decision that this was a failure to make reasonable adjustments. It found that the adjustments were job related, involving "payment for a specific form of support to enable the [employee] to return to work and to cope with the difficulty she had been experiencing at work...There were reasonable prospects that if Dr Parry's advice was followed and the reasonable adjustments adopted they would be successful."

There is no general duty to make adjustments in advance to make employment more practicable for people with disabilities. The duty to make reasonable adjustments is owed to a particular disabled person as and when the occasion arises. Part 3 of sch.8 to the Equality Act 2010 provides that there is no duty on the employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know that an employee, or an applicant or a potential applicant for employment, has a disability and is likely to be placed at a substantial disadvantage by a provision, criterion or practice, a physical feature of the premises or the lack of an auxiliary aid. The Employment statutory code of practice points out that there are "restrictions on when health or disability-related enquiries can be made prior to making a job offer or including someone in a pool of people to be offered a job" but goes on to explain that "questions are permitted to determine whether reasonable adjustments need to be made in relation to an assessment, such as an interview or other process designed to give an indication of a person's suitability for the work concerned" (see Knowledge of disability and Enquiries about disability and health in recruitment).

An employer will need to consider possible reasonable adjustments as soon as a person with a disability has applied for employment. An employment tribunal in Keane v United Lincolnshire Hospital NHS Trust [2002] ET/2601176/01 (decided under the now repealed Disability Discrimination Act 1995) found that the employer was under a duty, as soon as it received the application from Mr Keane, to consider reasonable adjustments that would enable him to do the job if appointed. The employer should have considered whether or not reallocation of telephone duties would have enabled Mr Keane, who was unable to use a normal telephone due to a hearing impairment, to do the job of medical records clerk.

In Arthur v Northern Ireland Housing Executive 29 June 2007 NICA (decided under the now repealed Disability Discrimination Act 1995, which remains in force in Northern Ireland), the Northern Ireland Court of Appeal held that an employer that allowed a dyslexic job applicant 20% extra time to complete pre-interview aptitude tests had fulfilled its duty to make reasonable adjustments, even though the employer's policy provided that such tests should not be used in the shortlisting of disabled candidates. On the facts, the adjustments made to the test had placed the disabled candidate on the same footing as other, non-disabled candidates so that he was no longer under any substantial disadvantage.

In Tameside Hospital NHS Foundation Trust v Mylott EAT/0352/09 & EAT/0399/10 (decided under the repealed Disability Discrimination Act 1995), the EAT upheld the employer's appeal against the employment tribunal decision that it had breached the duty to make reasonable adjustments by failing to consider ill-health retirement. The EAT could not identify a "'provision, criterion or practice' which has an adverse 'effect' on the employee which offering him ill-health retirement would prevent or mitigate". The EAT went on to state that the concept of a reasonable adjustment involves "a step or steps which make it possible for the employee to remain in employment and does not extend to, in effect, compensation for being unable to do so".

The Employment statutory code of practice states that: "Even where an employer has complied with a duty to make reasonable adjustments in relation to the disabled person, they may still subject a disabled person to unlawful discrimination arising from disability." The code goes on to state that: "This is likely to apply where, for example, the adjustment is unrelated to the particular treatment complained of." Accordingly, if the employer has failed to make a reasonable adjustment that would have prevented the treatment experienced by the disabled person it will be very difficult for the employer to show that the treatment was justified.

In Hinsley v Chief Constable of West Mercia Constabulary EAT/0200/10, the EAT upheld a claim for post-employment discrimination in the form of a failure to make reasonable adjustments. The EAT overturned the employment tribunal decision that the employer was not in breach of its duty to make reasonable adjustments when it failed to reinstate Ms Hinsley as a probationary police constable after she sought to retract her resignation, which she had submitted while suffering from depression. The EAT held that, having regard to the House of Lords decision in Archibald v Fife Council [2004] IRLR 651 HL, the bar to reappointment relied on by the employer (namely, certain legal provisions concerning the appointment of police constables) did not in fact prevent Ms Hinsley's reinstatement. Although Hinsley was decided under the now repealed Disability Discrimination Act 1995 it is likely to be relevant to claims concerning an alleged failure to comply with the duty to make reasonable adjustments after employment has ended under s.108(4) of the Equality Act 2010.

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Reasonableness factors

The Employment statutory code of practice states that "the test of the 'reasonableness' of any step an employer may have to take is an objective one" which depends on the circumstances of the case.

The code lists some of the factors that might be taken into account when deciding what is a reasonable step for an employer to have to take. The factors are:

  • whether or not taking a particular step would be effective in preventing the disadvantage;
  • the practicability of the step;
  • the financial and other costs of making the adjustment and the extent of any disruption caused;
  • the extent of the employer's financial and other resources;
  • the availability to the employer of financial or other assistance to help it make an adjustment; and
  • the type and size of the employer.

The list is similar to that set out in the repealed Disability Discrimination Act 1995, and considered in Morse v Wiltshire County Council [1998] IRLR 352 EAT, where the Employment Appeal Tribunal (EAT) held that it was for the employment tribunal to decide as to what steps it was reasonable for the employer to take. There is nothing to prevent the employment tribunal from substituting its own judgment for that the employer has put forward. The EAT went on to suggest a series of steps that should be followed:

  • Is there a duty to make reasonable adjustments in the particular circumstances?
  • Have reasonable steps been taken to prevent the "arrangements" or "physical features of premises" having the effect of placing the disabled person at a comparative substantial disadvantage?
  • Could any of the steps that are set out in the Disability Discrimination Act 1995 as illustrations have been taken?
  • Would it be reasonable for steps to be taken having regards to the factors set out in the Act?

The EAT in HM Prison Service v Beart EAT/650/01 (decided under the now repealed Disability Discrimination Act 1995) said that a particular step does not have to prevent the effect in question to be a reasonable adjustment. There are many steps described in the Disability Discrimination Act 1995 that could not be guaranteed to work in the sense of totally removing the disadvantage to the disabled employee but this of itself was no reason to absolve an employer from the duty to take a particular step; nor was it enough, without more, to lead to the conclusion that the step was not a reasonable one. In that case, the EAT upheld the tribunal decision that the Prison Service had failed to make a reasonable adjustment by not following its medical adviser's recommendation to relocate a depressed employee to a different workplace. The fact that the duty to relocate arose during disciplinary proceedings did not justify the failure.

However, Dyer v London Ambulance NHS Trust EAT/0500/13, the EAT agreed that "there was no adjustment which it would have been reasonable for the employer to have to take to avoid the disadvantage because, in the circumstances, the disadvantage, serious as it was, could not sufficiently be avoided". Dyer concerned an employee who had developed a severe, and ultimately life-threatening, sensitivity to aerosol deodorant sprays and perfume.

In Cordell v Foreign and Commonwealth Office EAT/0016/11 (decided under the repealed Disability Discrimination Act 1995), the EAT held that the Foreign and Commonwealth Office (FCO) did not discriminate against a deaf diplomat when it withdrew an offer of an assignment in Kazakhstan after an assessment showed that the cost of providing lipspeakers would have been prohibitive. The EAT rejected the employee's submission that, in light of payments that the FCO made by way of a "continuity of education allowance" in respect of relevant employees' school-age children, the tribunal had to conclude that it was unreasonable for the FCO not to make a commensurate payment to her. The other payments that the FCO chose to make was one factor among many for the tribunal to take into account. In the course of its judgment the EAT observed that: "Although financial cost is only explicitly mentioned under head (c) [of s.18B(1) of the Disability Discrimination Act 1995], it underlies also heads (d) [the extent of the employer's financial and other resources] and (e) [the availability to the employer of financial or other assistance with respect to taking the step] and will often be relevant ... to head (b) [the extent to which it is practicable for the employer to take the step]. It is in truth one of the central considerations in the assessment of reasonableness for the purpose of s.4A(1), though of course requiring to be weighed with the other factors, including (to paraphrase head (a)) the degree of benefit to the employee if the accommodation is made."

In Appleby v The Governing Body of Colburn Community Primary School and another EAT/0334/15, the EAT upheld the employment tribunal decision that a flexible start time for a teaching assistant with narcolepsy and mental health problems was not a reasonable adjustment. The tribunal found that the provision, criterion or practice (PCP) of requiring the employee to start work at 8.45am had placed the employee at a disadvantage relative to the position of other non-disabled employees because both her conditions made it more difficult for her to arrive at work by 8.45am. However, the tribunal held that the employee's dismissal was a proportionate means of achieving the legitimate aim of running the school effectively, which included requiring the physical presence of staff at particular times because of the vulnerability of children and the requirement that they be supervised.

Under s.108 of the Equality Act 2010, the duty to make reasonable adjustment may extend beyond the end of the employment. The Equality Act 2010 explanatory notes cite the example of a disabled former employee's benefits that include life-time use of the company's in-house gym facilities. The explanatory notes to the Act state that the employer or owner of the premises "must make reasonable adjustments to enable the former employee to continue using the facilities even after she has retired".

Additional resources on reasonableness factors

FAQs

Knowledge of disability

A claim for discrimination arising from disability under s.15 of the Equality Act 2010 cannot succeed if the employer "did not know, and could not reasonably have been expected to know" that the disabled person had the disability (see Discrimination arising from disability).

Similarly, under para.20 of sch.8 to the Act, the duty to make reasonable adjustments does not apply if the employer "does not know, and could not reasonably be expected to know" that a job applicant or potential job applicant or an employee has a disability and is likely to be placed at a substantial disadvantage in circumstances where the duty to make reasonable adjustments would otherwise apply (ie the requirement to: adjust a provision, criterion or practice; adjust a physical feature; or provide an auxiliary aid) (see Reasonable adjustments).

The Employment statutory code of practice states that an "employer must do all they can reasonably be expected to do to find out if a worker has a disability". It states that the test of reasonableness is an objective one, which will depend on the circumstances. The code advises employers to "consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a 'disabled person'". Employers must bear in mind issues of dignity and privacy and also the restrictions on the enquiries about disability and health in recruitment (see Enquiries about disability and health in recruitment).

Knowledge of employer's agent or employee

Paragraph 5.17 of the Employment statutory code of practice takes the view that "if an employer's agent or employee (such as an occupational health adviser, or a HR officer) knows, in that capacity, of a worker's or applicant's or potential applicant's disability, the employer will not usually be able to claim that they did not know of the disability, and that they cannot therefore have subjected a disabled person to discrimination arising from disability".

However, Hartman v South Essex Mental Health and Community Care NHS Trust [2005] IRLR 293 CA (a personal injury case) casts doubt on the code's view that knowledge of an employed occupational health adviser is imputed to the employer in circumstances where occupational health has obtained the knowledge in confidence and the employee has not consented to its disclosure. The Court of Appeal held that the employer did not have knowledge because the employee had disclosed her medical information in a health-screening questionnaire that was "personal and confidential" and "for use by the occupational health service only". The Court of Appeal considered that the British Medical Association's publication Medical Ethics Today correctly summarises the position in saying "the fact that a doctor is a salaried employee gives no other employee of that company any right of access to medical records or to the details of examination findings… If an employer explicitly or implicitly invites an employee to consult the occupational physician, the latter must still regard such consultation as strictly confidential".

In IPC Media Ltd v Millar [2013] IRLR 707 EAT, the Employment Appeal Tribunal (EAT) considered the knowledge of the employee's line manager. The redundant employee alleged that she had not been considered for alternative work "because of her past and anticipated future absences" resulting from a knee problem, which were known to her line manager, and which rendered her disabled within the meaning of the Equality Act 2010. The EAT held that there was insufficient evidence to justify an inference that the decision-maker knew about the employee's absences and the burden of proof had not passed to the employer under s.136(2) of the Equality Act 2010.

The Employment statutory code of practice distinguishes the position where information "is gained by a person providing services to employees independently of the employer". In those circumstances, the code makes clear that knowledge will not be imputed or attributed to the employer, even where it has arranged for the service to be provided to its employees.

Knowledge of facts

In Ridout v T C Group [1998] IRLR 628 EAT (decided under the repealed Disability Discrimination Act 1995), a claimant with photosensitive epilepsy was interviewed for a post in a room with bright lights. The Employment Appeal Tribunal (EAT) held that the employer was not in breach of its obligations to make reasonable adjustments, as no reasonable employer could have been expected to know, without having been told by the claimant, that the arrangements for the interview might disadvantage her.

In Peregrine (deceased) v Amazon.co.uk Ltd EAT/0075/13, the employee (who was deceased at the time of proceedings) had cancer in 1998 and was accordingly disabled within the meaning of the repealed Disability Discrimination Act 1995. In 2009, the employee suffered from back pain which for some time was not medically attributed to his earlier cancer. The EAT upheld the employment tribunal decision that the employer did not know and could not reasonably be expected to know of the link between the back pain and the cancer, with the result that no duty of reasonable adjustment arose.

Relevant knowledge may be imputed to an employer. The EAT in Department for Work and Pensions v Hall EAT/0012/05 (decided under the repealed Disability Discrimination Act 1995) held that a tribunal correctly concluded that the Department for Work and Pensions was fixed with constructive knowledge that the employee had a disability from her refusal to provide information about ill health and disability before starting her job, her unusual behaviour when she started work and its knowledge that she had made a claim for disability tax credit.

In Gallop v Newport City Council [2014] IRLR 211 CA (decided under the repealed Disability Discrimination Act 1995), the question for the Court of Appeal was whether or not the employer had actual or constructive knowledge of the employee's disability where its occupational health advisor had found no such disability. The Court held that the employer was not entitled to deny relevant knowledge by relying simply on its unquestioning adoption of the "unreasoned opinions" of its occupational health advisers that the employee was not a disabled person. The Court said that the employer must make its own factual judgment as to whether or not the employee is disabled. While in making that judgment, the employer will "rightly want assistance and guidance from occupational health or other medical advisers" the employer must not "simply rubber stamp" the adviser's opinion that the employee is not disabled. However, the Court added that where the occupational health advice is that the employee is a disabled person, the employer should follow that advice unless there is a good reason to disagree with it. The Court added that, when seeking outside advice from clinicians, an employer should not simply ask in general terms whether or not the employee is a disabled person within the meaning of the legislation, but pose specific practical questions directed to the particular medical condition.

In Donelien v Liberata UK Ltd [2018] EWCA Civ 129 CA, the Court of Appeal held that the employer did not have constructive knowledge of the employee's disability and that it had done all it could "reasonably be expected to have done" to find out about the nature of the employee's health problems. The Court found that it was "clearly not a rubber-stamp case" because the employer had asked further questions of occupational health, had had its own meetings with the employee, and had received her doctor's letters. The Court said that Gallop does not prevent an employer from relying on occupational health or other medical advice provided that the advice is reasoned, not followed uncritically, and not relied on exclusively.

In Lamb v The Garrard Academy EAT/0042/18, the EAT held that the tribunal's finding "of actual knowledge of PTSD, a condition that was known to be long term and in this case to go back to the claimant's experiences as a child, coupled with the absence of any finding that the impairment was not known to interfere sufficiently with the claimant's day-to-day activities, and the concession that this impairment amounted to a disability at all material times, is irreconcilable with the finding of constructive knowledge from 21 November 2012 only".

In Baldeh v Churches Housing Association of Dudley & District Ltd EAT/0290/18, the employer did not know the employee was disabled at the time of dismissal, but it may have acquired actual or constructive knowledge of her disability by the time of her unsuccessful appeal. The EAT held that the employment tribunal should have considered if the rejection of her appeal gave rise to discrimination under s.15 as it formed part of the unfavourable treatment about which she was complaining. The EAT said that the outcome of an appeal against dismissal is integral to the overall decision to dismiss.

Harassment

Under s.26 of the Equality Act 2010, harassment occurs where person A engages in unwanted conduct related to the protected characteristic of disability, which has the purpose or effect of:

  • violating person B's dignity; or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her.

The Employment statutory code of practice makes clear that if "unwanted" conduct (which according to the code means "unwelcome" or "uninvited") is engaged in with the purpose of violating the dignity of another person or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person, that amounts to harassment irrespective of its effect on the person concerned. However, in many cases, unintentional conduct, or even conduct that is intended to be amusing or friendly, may amount to harassment. The code advises that, where there is no intention to create one of the environments described above, each of the following, in accordance with s.26(4) of the Equality Act 2010, must be taken into account in determining whether or not the conduct amounts to harassment:

  • B's perception.
  • The other circumstances of the case.
  • Whether or not it is reasonable for the conduct to have that effect (which is an objective test).

Where an employment tribunal is satisfied that the conduct in question has brought about the proscribed effect, by reference to the employee's perception, then "the question of whether or not it is reasonable for the conduct to have that proscribed effect is effectively determinative" of whether or not the conduct amounts to harassment. In Ahmed v Cardinal Hume Academies EAT/0196/18, a disability discrimination case, the employee sought to persuade the Employment Appeal Tribunal (EAT) that "there may be circumstances where it would be open to the tribunal to conclude that conduct is to be regarded as having the proscribed effect notwithstanding that it might not be reasonable for it to have that effect". The EAT disagreed, stating that the correct approach to the application of s.26(4)(c) is as set out in Pemberton v The Right Reverend Richard Inwood [2018] Civ 564 CA. In Pemberton, the Court of Appeal made it clear that "the relevance of the objective question" in s.26(4)(c) "is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so".

In Bakkali v Greater Manchester Buses (South) Ltd (t/a Stage Coach Manchester) [2018] IRLR 906 EAT, the Employment Appeal Tribunal (EAT) considered the test that should be applied when determining whether or not the unwanted conduct is "related to" a protected characteristic. The EAT held that "related to" requires a consideration of the context of the offending words or behaviour and the "mental processes" of the alleged harasser. The EAT upheld the tribunal decision that asking a Muslim employee of Moroccan origin whether or not he supported IS did not amount to harassment because, given the context, the offending comment was not "related to" his religious belief or race. The tribunal had found that the comment had been made after the employee had informed his colleague about some "positive sounding comments" from a journalist about IS.

The employer will be liable for acts of employees carried out in the course of employment. In Jones v Tower Boot Co Ltd [1997] IRLR 168 CA (decided under the Race Relations Act 1976), the Court of Appeal held that "in the course of employment" could cover even acts of torture to which workers had subjected a colleague in the workplace.

In Unite the Union v Nailard [2018] IRLR 730 CA, the Court of Appeal upheld the employment tribunal decision that the union was vicariously liable for the behaviour of elected officers of the union on the basis that its failure to deal properly with allegations of sexual harassment by them of a paid union official also amounted to harassment under s.26 of the Equality Act 2010.

In Garrett v Lidl Ltd EAT/0541/08 (decided under the repealed Disability Discrimination Act 1995), the EAT held that the employment tribunal, having found that the employee was upset by comments made to her, erred in failing to consider whether or not the comments had the effect of causing distress or a hostile environment even if those consequences were not intended by the alleged discriminator.

The harassment can relate to person B's actual or perceived disability, even where the perception is wrong, for example where person B is harassed because they are perceived to be disabled but, in fact, they are not. B would not be required to disclose their disability to bring a claim. It will be enough that B has been harassed because of assumptions made about their disability. The harassment could also relate to someone else's disability, for example, because person B has friends who are disabled or where B cares for, or associates with, a disabled child. This reflects, in part, the European Court of Justice decision in Coleman v Attridge Law and another [2008] IRLR 722 ECJ that the Framework Employment Directive (2000/78/EC) covers direct discrimination and harassment against an employee on the ground of his or her association with a disabled person.

In a departure from previous discrimination legislation, the harassment no longer needs to be "on grounds of" disability, but only "related" to it. Accordingly, B does not have to possess, or even be believed to possess, the disability that is the subject of the unwanted conduct. It is therefore clear that the definition covers the situation where someone is harassed because of their perceived disability, or that of an associate. This is significant because in Aitken v Commissioner of Police of the Metropolis EAT/0226/09, the EAT indicated that Coleman, where the repealed Disability Discrimination Act 1995 was construed to prohibit associative discrimination, could not be extended to cover cases of "perceived discrimination" under the Act. Dismissing Mr Aitken's further appeal, the Court of Appeal held that the facts as found by the employment tribunal did not in any event give rise to a "perceived disability" argument (Aitken v Commissioner of Police of the Metropolis [2011] EWCA Civ 582 CA). In J v DLA Piper UK LLP [2010] IRLR 936 EAT (also decided under the repealed Disability Discrimination Act 1995), the EAT rejected the argument that perceived disability was self-evidently covered by the now repealed Disability Discrimination Act 1995, following the decision in Coleman, and held that a reference to the ECJ would be required in order to determine the point. However, in the circumstances, it declined to make such a reference. It appears that "perceived disability" is now covered under the Equality Act 2010.

In Peninsula Business Service Ltd v Baker [2017] IRLR 394 EAT, the EAT held that the employee could not claim for harassment on the ground of disability where he had not proved, but merely asserted, that he has a disability. The EAT said that, if it was accepted that an assertion as to disability can form the basis of a claim for harassment, an employee could make a harassment claim on the basis of allegations made falsely and in bad faith that they have a protected characteristic. According to the EAT, this could not have been Parliament's intention because s.27(3) of the Equality Act 2010 (which relates to victimisation) showed that Parliament had "drawn a line between those who make false allegations and those who make false allegations in bad faith", with the latter group not protected against victimisation under s.27.

In Timothy James Consulting Ltd v Wilton EAT/0082/14; EAT/020414 & EAT/0205/14 (a sex discrimination case), the EAT stated that "it is important … to give effect to the words that Parliament has used and not to substitute alternative words for them". It also stated: "It is also important that the statutory language should not become encrusted with a judicial gloss. The words used by Parliament are that the conduct must be 'related to' the relevant protected characteristic. The tribunal's task was to apply those words to the facts of the particular case before it." The EAT noted that "prior acts of harassment may give rise to a constructive dismissal". However, it went on to note that "the act of constructive dismissal does not in itself fall within the meaning of harassment as defined by the Equality Act. It was therefore not open to the tribunal as a matter of law to find that the constructive dismissal ... was in itself an unlawful act of harassment."

The Employment statutory code of practice states that homophobic banter towards a man who is not gay, and who is aware that he is not believed to be gay by his colleagues, would nevertheless be conduct "related to" sexual orientation and would therefore be unlawful under the Equality Act 2010. The same principles would apply to a claim involving conduct related to disability.

Further, the unwanted conduct does not have to be directed towards the complainant or related to his or her actual or perceived disability. The Equality Act 2010 explanatory notes cite as examples of possible harassment within s.26 of the Equality Act 2010, the case of a white worker who experiences an offensive work environment because she sees a black colleague being racially abused, and that of employees (whether male or female) who are offended by the display of a topless calendar. By analogy, a disabled employee may experience an offensive work environment if they witness disability-related abuse towards a colleague, or general disability-related banter. This was confirmed in Noble v (1) Sidhil Ltd (2) Moore EAT/0375/14 in which the EAT stated: "it is clear that it is not necessary for a person to share the protected characteristic before he may be harassed or discriminated against".

Harassment may occur over a period of time through a series of relatively minor incidents of harassment or it may occur through one blatant incident. In either case, the complainant will have to show that their working environment has been affected in such a way and to such a degree as to violate their dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for them. In Betsi Cadwaladr University Health Board v Hughes EAT/0179/13, a senior nurse who could no longer undertake clinical work after contracting Parkinson's disease was moved to a non-clinical post with her grade and rate of pay maintained. Although her post was initially meaningful, over a period of time it became menial. Upholding the employment tribunal decision that, overall, the treatment amounted to harassment, the EAT held that the tribunal "was fully entitled to conclude that the conduct, albeit unwitting, of the respondent in permitting or causing the slide in the claimant's role from what it had been to what it had become was one which, in the full force of the word, violated her dignity. One only has to think of a grade 6 nursing sister now being asked to look after cardboard boxes to understand how that is justified. That decision took into account fully the perception of the claimant, the other circumstances of the case including the good intentions of the employer, and the reasonableness of coming to a conclusion to that effect."

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Third-party harassment

An employer may be liable in connection with a third party's conduct towards an employee if the employer fails to intervene to prevent or stop the conduct because of the employee's disability. In Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003] IRLR 512 HL, the House of Lords said that an employer will not be liable for subjecting an employee to discrimination by a third party other than an employee, unless the reason for the failure to take action to prevent or reduce the discrimination is related to the employee's sex, race, etc, or the third party was acting as the employer's agent. Macdonald was decided under the repealed Sex Discrimination Act 1975 but employers would be advised to assume that they should protect employees from all types of discrimination by third parties.

In Conteh v Parking Partners Ltd EAT/0288/10 (decided under the now repealed Race Relations Act 1976), the EAT upheld the employment tribunal decision that the employer was not liable in respect of the harassment of one of its employees by a person who was employed by a third party over whom the claimant's employer had no control.

In a case that may have implications for discriminatory behaviour by third parties, the Supreme Court held that the Ministry of Justice was vicariously liable for the conduct of a prisoner whose negligence caused a prison officer employee to suffer a back injury while working in the prison kitchen (Cox v Ministry of Justice [2016] IRLR 370 SC). The Supreme Court noted that the case addressed the question of "what sort of relationship has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual".

Prior to 1 October 2013, an employer could be liable under s.40 of the Equality Act 2010 if:

  • an employee was harassed by a third party during the course of their employment;
  • the employer knew that the employee concerned had been subjected to harassment by a third party on at least two other occasions (whether by the same or a different third party); and
  • the employer had failed to take such steps as would have been reasonably practicable to prevent the third party from harassing the employee.

The third-party harassment provisions in s.40 of the Equality Act 2010 were repealed with effect from 1 October 2013 with the result that no claim for alleged third-party harassment can be made under s.40 in respect of acts that took place on or after that date. However, it appears that a claim may still have been able to be issued on or after 1 October 2013 in respect of acts of third-party harassment that occurred prior to that date.

Additional resources on third-party harassment

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Protection from Harassment Act 1997

Under the Protection from Harassment Act 1997, an employer may be vicariously liable for a course of conduct by one of its employees that amounts to "harassment". The harassment may consist of bullying, intimidation or harassment, and does not need to be on a prohibited ground (Majrowski v Guy's and St Thomas's NHS Trust [2006] IRLR 695 HL). In Majrowski the claimant argued his manager had bullied him because he was gay. This included being excessively critical of and strict about his time-keeping and his work; isolating him by refusing to talk to him; being rude and abusive in front of other staff; and imposing unrealistic targets for his performance and threatening him with disciplinary action if he did not achieve them.

In Hammond v International Network Services UK Ltd [2007] EWHC 2604 HC, the High Court held that to succeed under the Protection from Harassment Act 1997 an employee must show that there was an element of real seriousness to the harassment. The actions must be calculated in an objective sense to cause alarm and distress and must be capable of being objectively judged to be oppressive and unreasonable. Irritating, annoying and upsetting conduct, such as shouting and swearing by a supervisor, will not necessarily be a breach of the Act. The High Court found that the matters complained of by Mr Hammond were trivial or could be traced back to reasonable operational decisions taken by the employer.

However, in Green v DB Group Services (UK) Ltd [2006] IRLR 764 HC the High Court awarded a claimant damages of £852,000 after she suffered a "relentless campaign of mean and spiteful behaviour" by four women who worked closely with her, and in respect of a male co-worker's behaviour, which was found to be "domineering, disrespectful, dismissive, confrontational and designed to undermine and belittle her in the view of others". Although each incident viewed separately was not of major significance, it was their cumulative effect that was important. The bank was found liable for the bullying. This also amounted to harassment under the Protection from Harassment Act 1997. The High Court found that a reasonable employer would have intervened as soon as it was aware of the bullying, but managers in this case had closed their eyes to it. This emphasise the need for employers to ensure that they have in place an anti-bullying policy that is well publicised to all workers and properly enforced. As soon as an employer is aware that bullying is occurring it should take steps to deal with it.

In Rayment v Ministry of Defence [2010] IRLR 768 HC, the High Court referred to Veakins v Kier Islington Ltd [2010] IRLR 132 CA, in which the Court of Appeal held that, since Majrowski v Guy's and St Thomas's NHS Trust [2006] IRLR 695 HL, courts have had to consider whether or not the conduct complained of is "oppressive and unacceptable" as opposed to merely unattractive, unreasonable or regrettable. In Rayment, the High Court awarded the claimant damages under the Protection from Harassment Act 1997, of £5,000 for injury (the exacerbation of the claimant's existing depression) and distress caused by "oppressive and unacceptable conduct" and £500 for distress caused by the display of photographs in a restroom that was used only by the claimant.

In Levi and another v Bates and others [2015] EWCA Civ 206 CA, the Court of Appeal held that a claim under the Protection from Harassment Act 1997 can be brought by someone who is not the target of the conduct complained of, "if he or she is foreseeably likely to be directly alarmed or distressed by it".

Victimisation

Section 27 of the Equality Act 2010 defines victimisation as where a person (A) subjects another person (B) to a detriment because:

  • B does a protected act; or
  • A believes that B has done, or may do, a protected act.

The following are protected acts:

  • bringing proceedings under the Equality Act 2010;
  • giving evidence or information in connection with proceedings under the Act;
  • doing any other thing for the purposes of or in connection with the Act; or
  • making an allegation (whether or not express) that A or another person has contravened the Act.

Section 77(4) of the Act provides that the following are also to be treated as protected acts:

  • seeking a "relevant pay disclosure";
  • making or seeking to make a relevant pay disclosure; or
  • receiving information disclosed in a relevant pay disclosure.

A "relevant pay disclosure" is one made "for the purpose of enabling the person who makes it, or the person to whom it is made, to find out whether or to what extent there is, in relation to the work in question, a connection between pay and having (or not having) a particular protected characteristic" (s.77(3)) (see Equal pay).

Most claims of victimisation will be made where the employee has made an earlier complaint of disability discrimination. It will not matter whether or not the original underlying claim was successful. In a complaint of victimisation the disability discrimination is not in issue, it is the conduct of the employer in consequence of the employee bringing a claim or assisting another to bring a claim. An individual is protected from victimisation even if the allegation turns out to be wrong, provided that it was not made in bad faith (see Bad faith).

No comparator necessary

Under the victimisation provisions of the Equality Act 2010, the complainant does not need to compare their treatment to that of another real or hypothetical person to establish victimisation. The complainant simply needs to show that they were subjected to a detriment because they had done or may do a protected act.

Detriment

An employee will be treated as having been subjected to a detriment if they suffer a disadvantage that causes harm, damage or loss. The test for detriment is whether or not a reasonable worker would feel that they had been disadvantaged at work (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 HL).

In Rank Nemo (DMS) Ltd and others v Coutinho [2009] IRLR 672 CA (decided under the Race Relations Act 1976), the Court of Appeal held that the non-payment of a tribunal award to a former employee may constitute victimisation.

In Bouabdillah v Commerzbank AG ET/2203106/2012, the employment tribunal found that an employee was victimised by being dismissed from her new post because she had brought sex discrimination proceedings against her former employer.

In Das v Ayrshire and Arran Health Board EATS/0021/14, Mr Das was not offered an interview for the job that he had applied for even though he was the only applicant. The employment tribunal found that the decision to withdraw the post was an act of victimisation because the belief that Mr Das might "bring proceedings in the tribunal was a substantial influence in the decision to depart from the ordinary recruitment process". However, the tribunal went on to find on the facts that Mr Das "had only a slender chance of being appointed even though he was the only candidate". It assessed this as a 10% chance and reduced his compensation by 90%. The EAT upheld the tribunal decision.

Bad faith

Under s.27(3) of the Equality Act 2010, giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

The Employment statutory code of practice states that "if a worker gives evidence, provides information or makes an allegation in good faith but it turns out that it is factually wrong, or provides information in relation to proceedings which are unsuccessful, they will still be protected from victimisation".

In Saad v Southampton University Hospitals NHS Trust [2018] IRLR 1007 EAT, the EAT held that the primary question, when deciding if an employee acted in bad faith under s.27(3), is whether or not the employee acted honestly in making the discrimination allegation, not the employee's ulterior purpose. The EAT found that, although the employee may have raised his race discrimination allegation with the ulterior purpose of delaying a performance assessment, he had not made the allegation dishonestly as he had a genuine belief that it was true. The EAT was satisfied that, while the employee's motivation might be relevant to the question of remedy, it was not sufficient for a finding of bad faith.

However, in HM Prison Service and others v Ibimidun [2008] IRLR 940 EAT, a case decided under the now repealed Race Relations Act, the EAT held that an employee, who was dismissed because he had brought tribunal proceedings solely in order to harass his employer and colleagues, had not carried out a bona fide protected act and was not covered by the victimisation provisions. In Elegbede v Nexen Petroleum UK Ltd EAT/0298/10 (also decided under the repealed Race Relations Act 1976), the EAT upheld an employment tribunal decision that Mr Elegbede had not been victimised. While the tribunal found that Mr Elegbede had suffered less favourable treatment in one limited respect with regard to a complaint that he had made during his employment, it concluded that "since the allegation underlying that complaint was made falsely and in bad faith" the victimisation claim could not succeed.

It will not be victimisation where an employer can show that the employee was subjected to the detriment for a reason unrelated to the employee having made a protected act.

In Martin v Devonshires Solicitors EAT/0086/10 (decided under the repealed Sex Discrimination Act 1975 and Disability Discrimination Act 1995), the EAT confirmed that, where an employer dismisses an employee in response to their protected act, the employer may not have unlawfully victimised the employee where the reason for dismissal is some feature of the protected act that can be treated as separable. The EAT stated that, in dismissing the employee's victimisation claims, the tribunal had, in effect, found that the reason for the dismissal "had nothing to do with the fact, as such" that she had complained of discrimination, but was because she "was mentally ill and ... the significance of the complaints was as evidence of that fact". 

In Woodhouse v West North West Homes Leeds LTD [2013] IRLR 773 EAT, the EAT overturned the employment tribunal decision that an employee who was dismissed following multiple race discrimination and related grievances, which had not been made in bad faith, was not victimised. The EAT held that the employer's position that the employee "was dismissed because he had lost trust and confidence in the organisation, when coupled, as the employment tribunal found it to be, with the avoidance of further repetition of grievances ... is no more than the [employee] being dismissed, if not because of past protected acts, then because of the belief of the likelihood of future protected acts". On the tribunal's own factual findings, "that amounted to victimisation within the scope of s.27(1)" of the Equality Act 2010 and any other conclusion was an error of law. The EAT warned against using Martin as a "template" for identifying "genuinely separable features" in alleged victimisation cases. Describing Martin as an "exceptional" case, the EAT continued "very few cases will have grievances based on paranoid delusions about events that never happened".

The motivation of the person committing the act of victimisation may be conscious or unconscious: Nagarajan v London Regional Transport [1999] IRLR 572 HL (decided under the repealed Race Relations Act 1976). The claim of victimisation related to the rejection of Mr Nagarajan's application for employment. He had previously brought claims of racial discrimination against the respondent company and believed that that was the reason for its rejecting his application. The House of Lords allowed the appeal and held that the key question for victimisation, as well as direct discrimination, is why the complainant received less favourable treatment. The House of Lords held that "if the answer to this question is that the discriminator treated the person victimised less favourably by reason of his having done [a protected act]", the case falls within the definition of victimisation. The House of Lords emphasised that the less favourable treatment still constitutes victimisation "even if the discriminator did not consciously realise that, for example, he was prejudiced because the job applicant had previously brought claims against him under the Act". The House of Lords found that a subconscious influence could be a substantial cause of victimisation.

However, those committing the alleged act of victimisation must have knowledge of the protected act: Scott v London Borough of Hillingdon [2001] EWCA Civ 2005 CA (decided under the repealed Race Relations Act 1976).

In Chief Constable of Greater Manchester Police v Bailey [2017] EWCA Civ 425 CA, the employee claimed that the termination of his secondment (which had come about because he had previously brought a successful race discrimination claim against the employer) was an act of victimisation. The employment tribunal upheld the claim, noting that the employee was only on secondment because of the agreement he had made with his employer, "an agreement which is inextricably linked to, and arises out of, his protected act of bringing his previous proceedings". The Court of Appeal held that the employment tribunal had erred in applying the "but for" test, rather than the "reason why" test, which applies to both direct discrimination and victimisation claims. Allowing the employer's appeal, the Court of Appeal held that, although "it is self-evidently the case that there would have been no secondment to terminate if the claimant had not brought his earlier claims ... that kind of 'but for' causative link does not mean that the termination was 'because of' his earlier claims in the relevant sense". The Court acknowledged that this point has been made in a number of cases and referred to Ahmed v Amnesty International [2009] EAT/0447/08, in which the EAT held that "the fact that a claimant's sex or race is a part of the circumstances in which the treatment complained of occurred, or of the sequence of events leading up to it, does not necessarily mean that it formed part of the ground, or reason, for that treatment".

In Pasab Ltd t/a Jhoots Pharmacy & Jhooty v Woods EAT/0454/11, decided under the repealed Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660), the employment tribunal found that the employer dismissed the employee because it believed that she had referred to the employer as being "a little Sikh club" and it regarded this as a racist comment. The EAT held that it was not open to the tribunal to find that the employee's dismissal was an act of victimisation because "if the remark was viewed not as a protected act but an offensive racist comment ... then the reason for dismissal was not that the claimant had done a protected act, but some other feature genuinely separable from the implicit complaint of discrimination". The Court of Appeal upheld the EAT decision (Woods v Pasab Ltd (t/a Jhoots Pharmacy) and another [2013] IRLR 305 CA).

Ongoing claims

Under previous legislation, to constitute victimisation, the act of victimisation had to be "by reason that" the claimant has done the protected act. In Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 HL, which was decided under the repealed Race Relations Act 1976, the House of Lords held that the refusal to supply a reference to support promotion applications while race discrimination proceedings were in progress was not victimisation. The reference was not withheld "by reason that" the claimant had brought discrimination proceedings, but rather due to the employer's temporary need to preserve its position in the outstanding proceedings. The Equality Act 2010 uses the word "because" rather than "by reason that" but it is suggested that the same principles will apply and that Khan would be decided in the same way under the Act.

The EAT in Commissioners of Inland Revenue and another v Morgan [2002] IRLR 776 EAT (decided under the Race Relations Act 1976) read Khan as creating a specific exception to victimisation where the act complained of is an honest and reasonable step in the proper conduct of the respondent's defence.

However, in St Helens Metropolitan Borough Council v Derbyshire and others [2007] IRLR 540 HL, which was decided under the now repealed Sex Discrimination Act 1975, the House of Lords held that unpleasant letters sent to 39 equal pay claimants pointing out that they might be responsible for the loss of colleagues' jobs if they won had crossed the line between taking those reasonable steps and subjecting the claimants to a detriment.

In Croad v University and College Union EAT/0012/11 (decided under the repealed Disability Discrimination Act 1995), the EAT upheld the employment tribunal decision that the union had not victimised the member by withdrawing legal support from her in connection with a claim against her employer at a time when she had accused the union of disability discrimination. On the facts, which involved a history of "antipathy" between the member and the union, the tribunal was satisfied that the union "did not act as it did because the [member] gave notice of or brought proceedings but because the bringing of proceedings created a conflict of interest".

Post employment

Section 108 of the Equality Act 2010 deals with prohibited conduct after the end of the working relationship. Section 108(1) and (2) prohibit post-employment discrimination and harassment respectively, while s.108(7) states that "conduct is not a contravention of this section in so far as it also amounts to victimisation of B by A". However, this anomaly was resolved by the Court of Appeal in Rowstock Ltd and another v Jessemey [2014] IRLR 368 CA. The Court of Appeal held that the apparent exclusion of post-employment victimisation was the result of an inadvertent drafting error and that the Equality Act 2010 can be interpreted to cover post-employment victimisation. Further, the EHRC guidance states that, if a worker's former employer refuses to give them a reference because they supported someone else's claim for sexual harassment, this would almost certainly be victimisation (What equality law means for you as an employer: dismissal, redundancy, retirement and after a worker has left). The guidance goes on to say that: "It does not matter how long ago the person worked for you, as long as the worker could show that any unlawful discrimination arises out of and is closely connected to the previous employment relationship."

In Aston v The Martlet Group Ltd EAT/0274/18, the EAT commented that s.108 does not "mean that there is jurisdiction to entertain any and every claim of discrimination or victimisation presented by an ex-employee". The EAT drew attention to the fact that Parliament had not merely stipulated that the conduct must be something that "arises out of" the past relationship, but also that it must be "closely connected" to it. The EAT said that both tests must be satisfied, and the second must add something to the first.

Additional resources on victimisation

FAQs

Burden of proof

Section 136 of the Equality Act 2010 deals with the application of the burden of proof and provides that, where an applicant proves facts from which the tribunal could conclude that the respondent had committed a discriminatory act, the tribunal must uphold the complaint unless the respondent provides an adequate non-discriminatory explanation for the treatment. For further information see Burden of proof in discrimination cases (in Tribunal procedures and penalties).

Occupational requirements

Paragraph 1 of sch.9 to the Equality Act 2010 contains an exception from unlawful discrimination in recruitment; opportunities for promotion, transfer or training; or dismissal where a requirement to have a particular protected characteristic applies. This is a new provision in relation to disability and it is not clear what effect it will have given that s.13 of the Act, which defines direct discrimination, states that the act of treating a disabled person more favourably than a non-disabled person does not constitute discrimination. Where the employer is applying an occupational requirement to have a disability, it is permitted to ask job applicants questions about their health prior to offering them employment, provided that the purpose of those questions is to establish whether or not the applicant has the particular disability (see Enquiries about disability and health in recruitment).

An occupational requirement will apply where, having regard to the nature or context of the work, the employer applying the requirement shows that:

  • having a particular disability is an occupational requirement;
  • the application of the requirement is a proportionate means of achieving a legitimate aim; and
  • either the person to whom the requirement is applied does not have the disability or the employer has reasonable grounds for not being satisfied that the person has the disability.

The Equality Act 2010 explanatory notes state that while this provision replicates previous exceptions, it differs in that "it makes clear that the requirement must pursue a legitimate aim and that the burden of showing that the exception applies rests on those seeking to rely on it".

The explanatory notes state that an organisation "for deaf people might legitimately employ a deaf person who uses British Sign Language to work as a counsellor to other deaf people whose first or preferred language is BSL".

The requirement that it must be proportionate to apply the requirement to have a particular disability in a particular case may mean that, even if an occupational requirement applies to some of the duties of a job, the exception could not be relied on if there were others with the disability who could do these duties, if the work were redistributed or reorganised.

Additional resources on occupational requirements

FAQs

Other exceptions

National security

Section 192 of the Equality Act 2010 contains an exception from unlawful race discrimination for acts done for the purpose of safeguarding national security, if the acts are proportionate for that purpose.

Armed forces

In relation to the protected characteristic of disability, the employment provisions of the Equality Act 2010 do not apply to service in the armed forces.

Statutory authority

The Equality Act 2010 contains an exception from unlawful disability discrimination for acts done in order to comply with a requirement of an enactment.

Terms

Unenforceable terms

Section 142 of the Equality Act 2010 renders unenforceable against a person contractual terms that constitute, promote or provide for treatment, of that person or another person, that is prohibited under the Act. Section 143 of the Act provides that the county court may order that a term rendered unenforceable by s.142 is removed or modified.

No contracting out

Section 144 of the Equality Act 2010 prohibits contracting out from its provisions, except where the contract in question settles a complaint and is either made with the assistance of a conciliation officer or constitutes a qualifying compromise contract."]).

Enquiries about disability and health in recruitment

The Equality Act 2010 introduced a provision that limits employers' right to ask job applicants questions about their health prior to offering them employment. Section 60(1) of the Act provides that "a person (A) to whom an application for work is made must not ask about the health of the applicant (B):

  • before offering work to B [the offer of work may be conditional or unconditional]; or
  • where A is not in a position to offer work to B, before including B in a pool of applicants from whom A intends ... to select a person to whom to offer work".

However, under s.60(6), s.60(1) does not apply to a question that A asks that is necessary for the purpose of:

  • establishing whether or not the applicant will be able to comply with a requirement to undergo an assessment (which is "an interview or process designed to give an indication of a person's suitability for the work concerned" (s.60(12));
  • establishing whether or not a duty to make reasonable adjustments will be imposed on the employer in relation to the applicant in connection with a requirement to undergo an assessment;
  • establishing whether or not the applicant "will be able to carry out a function that is intrinsic to the work concerned" (s.60(6)(b)) (assuming that any duty to make reasonable adjustments that the employer believes would be imposed on it in relation to the applicant with that work has been complied with);
  • monitoring diversity in the range of persons applying to the employer for work;
  • taking positive action in employment for disabled people under s.158 of the Equality Act 2010; or
  • where the employer is applying an occupational requirement to have a disability, establishing whether or not the applicant has that disability.

The provision does not prohibit "anything done for the purpose of vetting applicants for work for reasons of national security" (s.60(14)).

The Equality Act 2010 explanatory notes state that a question on an application form that asks applicants "whether they have a disability that requires the employer to make a reasonable adjustment to the recruitment process" (for example, by allowing people with a speech impediment more time at interview) would be a permitted enquiry. Questions about an applicant's health to establish whether they, with reasonable adjustments for a disabled applicant if required, could do the manual lifting and handling of heavy items that is intrinsic to a job in a warehouse would also be permitted, although other health questions would not be permitted until the employer had offered the candidate a job.

This provision is not directly actionable as such by individuals and may be enforced only by the Equality and Human Rights Commission (EHRC). However, as the Equality Act 2010 explanatory notes state, if an employer were to reject a job applicant, having asked a question prohibited by s.60, it would be for "the employer to show that it had not discriminated against the candidate" should they bring tribunal proceedings alleging that the employer had contravened a relevant disability provision by acting in reliance on information given in response to a question about the candidate's health. This is because the candidate's complaint about the employer's reliance on the information will be treated as sufficient to put the burden of disproving that the alleged discrimination occurred onto the employer, pursuant to the burden of proof provisions in s.136 of the Act.

The EHRC has published further specific guidance on s.60 of the Equality Act 2010, which includes several examples of breaches and compliance in relation to: application forms; positive action; occupational requirements; monitoring; interviews and the position once work has been offered. The guidance is available on the EHRC website (Pre-employment health questions: guidance for employers on s.60 of the Equality Act 2010).

The Government Equalities Office has published a Quick start guide to the ban on questions about health and disability during recruitment.

Additional resources on enquiries about disability and health in recruitment

FAQs

Policies and documents

Medicals

In any disability discrimination claim, the first issue to be determined is whether or not the claimant is a disabled person within the meaning of s.6 of the Equality Act 2010. That is, does the person have a physical or mental impairment that has a substantial and long-term adverse effect on the person's ability to carry out normal day-to-day activities (see Definition of disability)?

Medical evidence often plays a key role in determining whether or not a claimant has a disability. In Brighton v Tesco Stores Ltd EAT/0165/15, the Employment Appeal Tribunal (EAT) held that the employment tribunal "failed or failed properly to take into account" the evidence provided by a consultant neurologist that the employee had experienced two epileptic seizures when he behaved aggressively towards a colleague. The tribunal also failed to have regard to the medical evidence that seizures can cause amnesia and also aggression, which may have caused or contributed to the behaviour that resulted in the employee's dismissal. This failure to take important medical evidence into account undermined the tribunal's decision that the employee did not suffer a seizure. While the tribunal "did not have to accept the medical evidence placed before [it]" it did have to give it "due regard" and there was no indication in the judgment that it had done so.

In Kapadia v London Borough of Lambeth [2000] IRLR 14 EAT (decided under the repealed Disability Discrimination Act 1995) a majority of the employment tribunal had ignored uncontested medical evidence of the employee's clinical depression and held that his impairment did not have a substantial adverse effect on his ability to carry out normal day-to-day activities. The Court of Appeal upheld the EAT decision that the employment tribunal had erred in rejecting the uncontested medical evidence that gave "only one possible answer to the question of whether he or she had been disabled at the relevant time".

However, it is a legal issue whether or not an individual has a disability and an issue that must be determined by the employment tribunal alone. While employment tribunals must consider the medical evidence available, they are not allowed to abdicate responsibility.

In another decision under the repealed Disability Discrimination Act 1995, Vicary v British Telecommunications plc [1999] IRLR 680 EAT, the EAT allowed the employee's appeal where the employment tribunal had simply followed the opinion of the medical expert as to whether or not the impairment would have a substantial effect on normal day-to-day activities. The employment tribunal should have reached its own decision on that issue.

The EAT in Morgan v Staffordshire University [2002] IRLR 190 EAT (decided under the repealed Disability Discrimination Act 1995) gave guidance on medical evidence in relation to cases where the claimant is claiming a mental impairment. A full consultant psychiatrist's report is not required in every case. In many cases, the illness may be sufficiently marked for it to be proved by a general practitioner's letter. Whether or not a mental impairment exists is very much a matter for qualified and informed medical opinion. If the impairment is to be disputed on technical medical grounds, then thought will need to be given to further expert medical evidence. In Beales v The Secretary of State for Work and Pensions EAT/0602/05 (decided under the repealed Disability Discrimination Act 1995), the EAT upheld the tribunal's decision that the claimant had not proved that she suffered stress-related disability. It said that a tribunal cannot reasonably be expected to determine from what kind of mental illness (if any) a claimant suffers simply by reference to the claimant's evidence, in the absence of substantiated medical evidence. The EAT took into account the conflicting evidence given by the claimant, which meant that the limited medical evidence was not satisfactory.

A claimant's consent will be required for the disclosure of medical records relating to them. A claimant cannot be compelled to give consent, but failure to permit the provision of evidence relevant to whether or not they are disabled could mean that the claimant is unable to discharge the burden of proof on them to prove that they are disabled within the meaning of the Equality Act 2010. In Hanlon v Kirklees Metropolitan Council and others [2004] All ER (D) 154 (Sep) EAT (decided under the now repealed Disability Discrimination Act 1995), the EAT upheld an employment tribunal's decision to strike out a claim for disability discrimination when the claimant repeatedly failed to give consent to the disclosure of medical records held in relation to him by the employer's own occupational health adviser that were relevant to the issue of the knowledge or imputed knowledge of the employer.

Generally, if a medical report is to be relied on in an employment tribunal hearing, care should be taken in instructing an appropriately qualified expert. The expert should understand the term "disability" in the context of the Equality Act 2010, including such key points as the effect being on day-to-day activities and discounting the effect of any medication. It is usually appropriate to provide relevant extracts from the Act and the guidance.

If a report that may be relied on in an employment tribunal is to be obtained, then the EAT's guidelines in De Keyser Ltd v Wilson [2001] IRLR 324 EAT (decided under the now repealed Disability Discrimination Act 1995) should be followed. These include the requirement normally to instruct a joint expert and guidelines on the content of the letter of instruction including that this must not be partisan. Failure to follow these guidelines without good reason can lead to a costs award against the party at fault where the failure results in delay or increased costs. In Hospice of St Mary of Furness v Howard [2007] IRLR 944 EAT (decided under the now repealed Disability Discrimination Act 1995), there was no identifiable cause of Mrs Howard's condition (acute back symptoms), and the respondent wanted to rely on a second expert whose preliminary view was that there were no physical symptoms amounting to a physical impairment. The EAT held that, even where there had been a joint expert, the respondent could call evidence from a second expert in an attempt to show that the symptoms were either not genuine or the result of a mental, and not physical, impairment.

In City Facilities Management (UK) Ltd v Ling EAT/0396/13, the EAT held that the employment tribunal had been wrong to order that a medical report be obtained before it would assess the question of whether or not the employee was disabled. Further, it had acted perversely in ordering that the employer "should pay the entire costs of a jointly instructed expert".

It seems that, in appropriate cases, the employee can effectively be compelled to cooperate with the employer's request for expert evidence, or face having his or her claim struck out. In Government Communication Headquarters v Bacchus EAT/0373/12, the employee obtained his own expert's report but refused to cooperate with the employer's request for a psychiatric report from one of three suggested experts. Referring to the De Keyser guidelines, the EAT observed that, with hindsight it would have been sensible to instruct "a joint expert with a jointly agreed letter of instruction". The employment tribunal had found that the employee's refusal was unjustified, but refused the employer's request to stay or strike out the proceedings, holding instead that it could determine the case without any expert evidence from either side, on the basis of the existing material, which largely comprised "medical certificates, letters and medical notes". On appeal by the employer, the EAT held that, in doing so, the tribunal had failed to ask whether in the circumstances the employer "was unable properly to prepare its case without instructing an expert" and that, had it addressed this question "it would have been bound to conclude that GCHQ was significantly disadvantaged if it could not instruct an expert". The EAT noted that the issues in the case were not straightforward, extending beyond the "simple issue" of whether or not the employee was disabled in August 2011 to include "a range of issues" on which the existing medical documentation "does not speak with any certainty and [on] which expert medical evidence is potentially important". The EAT held that the correct course of action was to make an "unless order" requiring the employee "to present himself for examination by a certain date, with the consequence that his case will be struck out for non-compliance if he does not do so".

The medical report should confirm a diagnosis, give a prognosis and advise on any work activities that the employee may be capable of carrying out. Even if the employee is not viewed as being "disabled" for the purposes of the Equality Act 2010, and the "duty to make adjustments" does not arise, it is still appropriate for an employer actively to consider alternatives to a dismissal so that a finding of unfair dismissal is avoided.

The employer should discuss the medical report with the employee including the likely period of absence and any adjustments at work that could be made to facilitate return.

An employment tribunal may agree to contribute to the cost of a medical report.

It seems that a party's own expert is not immune from an action for professional negligence, following the decision of the Supreme Court in Jones v Kaney [2011] UKSC 13 SC in which it held that an expert witness did not enjoy immunity from a professional negligence action in connection with her act of preparing a joint witness statement.

A medical report is not conclusive on the issue of disability. In McKechnie Plastic Components v Grant EAT/0284/08 (decided under the now repealed Disability Discrimination Act 1995), the EAT held that an employment tribunal, faced with "compelling evidence" from the claimant and others, was entitled to find that she had a mental impairment that had a substantial adverse effect on her ability to carry out day-to-day activities even though on the basis of an agreed medical report from a jointly instructed consultant psychiatrist her case on disability failed. The EAT held that, although the "diagnosis of medical conditions is obviously a matter which requires the expertise and experience of medical practitioners ... it would be an abdication of responsibility for courts or tribunals to accept uncritically the conclusions of any medical expert without ascertaining the factual basis upon which such conclusions are reached". However, the tribunal had failed to give proper consideration to whether or not the disability was "long-term". Therefore the case was remitted on that point and it was subsequently dismissed by both the tribunal and on appeal to the EAT (Grant v McKechnie Plastic Components EAT/0390/09).

In J v DLA Piper UK LLP [2010] IRLR 936 EAT (decided under the now repealed Disability Discrimination Act 1995), the EAT held that: "A GP is fully qualified to express an opinion on whether a patient is suffering from depression, and on any associated questions arising under the 1995 Act: depression is a condition very often encountered in general practice." The EAT went on to state that the GP's evidence may have less weight than that of a specialist but should not be ignored "if the evidence of a specialist is not available or is inconclusive".

Additional resources on medicals

FAQs

Policies and documents

"How to" guidance

Liveflo

Positive action

General positive action

Section 158 of the Equality Act 2010 allows a person (P) to take action in the following circumstances:

  • Where P reasonably thinks that persons who share a protected characteristic suffer a disadvantage connected to that characteristic, P may take any action that is a proportionate means of enabling or encouraging persons who share that protected characteristic to overcome or minimise that disadvantage.
  • Where P reasonably thinks that persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, P may take any action that is a proportionate means of meeting those needs.
  • Where P reasonably thinks that participation in an activity by persons who share a protected characteristic is disproportionately low, P may take any action that is a proportionate means of enabling or encouraging persons who share that protected characteristic to participate in that activity.

This would allow an employer to take measures in relation to disabled persons where one of the above conditions is met. The measures taken must be proportionate, having regard to the seriousness of the disadvantage etc, because, as the Equality Act 2010 explanatory notes make clear, positive action measures in relation to one group "may result in people not having the relevant characteristic being treated less favourably".

Chapter 12 of the Employment statutory code of practice discusses positive action in detail, and the subject is also covered in vol.1 of EHRC guidance: What equality law means for you as an employer: when you recruit someone to work for you. The code cites mentoring, shadowing and training targeted at specified disadvantaged groups as examples of the measures that may be taken. The guidance states that positive action steps before or at the application stage "could include encouraging particular groups to apply, or helping people with particular protected characteristics to perform to the best of their ability (for example, by giving them training or support not available to other applicants)". In addition, the Equality Act 2010 contains a power permitting the Government to make regulations setting out what action is, and is not, permitted under s.158 in order to provide greater legal certainty about what action is likely to be regarded as proportionate. No regulations have yet been issued.

Additional resources on general positive action

FAQs

Positive action in recruitment and promotion

Section 159 of the Equality Act 2010, which came into force on 6 April 2011, permits an employer, in defined circumstances, to appoint or promote a person (A) with a protected characteristic in preference to another person (B) who does not have the protected characteristic.

Section 159(1) provides that an employer is permitted to take positive action only where it reasonably thinks that persons who share a protected characteristic suffer a disadvantage connected to that characteristic (s.159(1)(a)); or participation in an activity by persons who share a protected characteristic is disproportionately low (s.159(1)(b)). The Government Equalities Office has issued guidance on taking positive action (Equality Act 2010: What do I need to know? A quick start guide to using positive action in recruitment and promotion), and that guidance states that some: "information or evidence will be required to indicate to the employer that one of those conditions exists [ie disadvantage or under-representation] - but it does not need to be sophisticated statistical data or research". The guidance goes on to state that the employer may, for example, look at the profile of its own or a comparable workforce, or consult national data such as labour force surveys.

The positive action must be a proportionate means of the employer enabling or encouraging persons who share the protected characteristic to overcome or minimise the disadvantage or participate in the activity (s.159(4)(c)). The Government Equalities Office guidance Equality Act 2010: What do I need to know? A quick start guide to using positive action in recruitment and promotion states that, in order to ensure that positive action is proportionate, an employer "will need to balance the seriousness of the disadvantage suffered or the extent to which people with a protected characteristic are under-represented against the impact that the proposed action may have on other people". The guidance advises employers to: "consider if the proposed action is the only way to address the under-representation or disadvantage effectively, or if it would it be possible to achieve the same effect by other actions that are less likely to result in the less favourable treatment of other people."

Section 159(4) of the Act provides that an employer may take positive action only if:

  • A is as qualified as B to be recruited or promoted; and
  • the employer does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it.

The Equality Act 2010 does not set out what is meant by "as qualified as". However, the Equality Act 2010 explanatory notes state that "the question of whether one person is as qualified as another is not a matter only of academic qualification, but rather a judgment based on the criteria the employer uses to establish who is best for the job which could include matters such as suitability, competence and professional performance". The Government Equalities Office guidance (Equality Act 2010: What do I need to know? A quick start guide to using positive action in recruitment and promotion) refers to candidates being "of equal merit" to each other, not "as qualified as" each other. The guidance advises that: "Employers should establish a set of criteria against which candidates will be assessed when applying for a job". The guidance states that this can take into account: "a candidate's overall ability, competence and professional experience together with any relevant formal or academic qualifications, as well as any other qualities required to carry out the particular job ... [but] employers should ensure that any criteria do not indirectly discriminate against people who share a protected characteristic".

The absence of a statutory definition of "as qualified as" in the Equality Act 2010 means that case law will be required to clarify what is meant by this requirement. It is unclear whether or not "as qualified as" will be interpreted to extend to "equal merit" as assumed by the Government qualities Office guidance.

Section 159 does not require an employer to take positive action and taking such action is not without risk. An employer that favours one applicant over another because he or she has a protected characteristic may be exposed to a claim of direct discrimination under s.13 of the Equality Act 2010 by the rejected applicant. The rejected applicant may argue that the employer has failed to satisfy all of the criteria required to trigger the application of, and protection afforded by, s.159. In Furlong v Chief Constable of Cheshire Police ET/2405577/2018, the first case in which the employment tribunal has given substantive consideration to the application of s.159, a white heterosexual man without a disability, applied to become an officer with Cheshire Police Force. After he had passed the assessment and interview stage, he was told that his application was unsuccessful. The force had a nationwide police initiative to improve diversity, which included applying positive action after the interview stage of its recruitment process.The tribunal accepted that, while the force had the "laudable aim" of improving diversity, applying positive action to a large-scale recruitment exercise at this stage was not a proportionate means of achieving the legitimate aim of improving diversity. Other diversity initiatives were already bearing fruit and the police force could not justify such a "radical and substantial" change to its recruitment process in the name of positive action. The tribunal found that the police force had committed discrimination in its recruitment exercise. If the police force had not applied positive action after the interview stage, the chances are that the claimant, who was a "relatively strong candidate", would have been recruited.

Additional resources on positive action in recruitment and promotion

FAQs

Pensions and other employment benefits

Occupational pension schemes

Section 61 of the Equality Act 2010 provides that an occupational pension scheme must be taken to include a non-discrimination rule.

A non-discrimination rule means that a responsible person (A) (ie a trustee or manager of the scheme; an employer whose employees are, or may be members of the scheme; or a person exercising an appointing function in relation to an office the holder of which is, or may be a member of the scheme) must not:

  • discriminate against another person (B) in carrying out any of A's function in relation to the scheme;
  • in relation to the scheme, harass B; or
  • in relation to the scheme, victimise B.

Section 61 of the Act provides that the duty to make reasonable adjustments applies to a responsible person.

The provisions of an occupational pension scheme take effect subject to the non-discrimination rule, although the rule does not apply to a person who is a pension credit member of the scheme. Section 62 of the Equality Act 2010 confers a power on the trustees and managers of such a scheme to alter its rules by resolution (in certain circumstances) in order to conform with the s.61 non-discrimination rule.

The Equality Act 2010 explanatory notes state that the non-discrimination rule "does not apply to pension rights built up or benefits payable for periods of service before the commencement of this section" (which was on 1 October 2010). The notes go on to state that periods of service prior to this date will be subject to previous discrimination legislation. Occupational pension schemes were required to have non-discrimination rules in respect of disability prior to the implementation of the Equality Act 2010.

Public authorities

Section 149 of the Equality Act 2010, which came into force on 5 April 2011, sets out the general public sector equality duty. The first arm of the duty applies to all of the protected characteristics, while the second and third arms apply to all of the protected characteristics except for marriage and civil partnership.

A public authority must, in the exercise of its functions, take account of the three matters specified in the general equality duty. First, a public authority must have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010 (s.149(1)(a)).

Second, a public authority must have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and those who do not share it (s.149(1)(b)). This involves taking into account the need to:

  • remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
  • take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; and
  • encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

Third, a public authority must foster good relations between persons who share a relevant protected characteristic and those who do not (s.149(1)(c)). This involves taking into account the need to tackle prejudice and promote understanding.

Section 149(6) of the Equality Act 2010 provides that compliance with the general equality duty may involve treating some persons more favourably than others, but not where such conduct would otherwise be prohibited by or under the Act.

The general equality duty applies to public authorities that are listed in sch.19 to the Equality Act 2010. The list includes government departments, local authorities, NHS bodies, schools and other educational bodies and the police.

A person who is not a public authority but who exercises public functions must also, in the exercise of those functions, comply with the general duty (s.149(2)). A public function is one that is of a public nature for the purposes of the Human Rights Act 1998 (s.150(5)). The Equality and Human Rights Commission's (EHRC) Essential guide to the public sector equality duty (revised fourth edition, January 2014) explains that such bodies "will include private bodies or voluntary organisations which are carrying out public functions on behalf of a public authority", and gives the example of a private company running a prison on behalf of the Government. The guide goes on to state that "the company would, however, only be covered by the general equality duty with regard to its public functions, but not for other work, like providing security services for a supermarket".

In January 2013, the EHRC issued technical guidance on the public sector equality duty for England, Scotland and Wales, which "explains the three aims of the [duty], outlines the requirements of the Equality Act 2010 and the specific duty regulations and provides practical approaches to complying with the public sector equality duty". The guidance states that it "provides an authoritative, comprehensive and technical guide to the detail of the law". Although the guidance is not in the form of a statutory code of practice issued under s.14 of the Equality Act 2006, it may be used as evidence in legal proceedings and a body subject to the duty would need to justify a departure from it. The guidance is available on the EHRC website: Equality Act 2010 technical guidance on the public sector equality duty: England, Equality Act 2010 technical guidance on the public sector equality duty: Scotland and Equality Act 2010 technical guidance on the public sector equality duty: Wales.

The EHRC has issued other revised guidance for public authorities in England (and bodies with non-devolved functions in Scotland and Wales) which is available on the EHRC website: Meeting the equality duty in policy and decision-making (third edition revised October 2014) and Engagement and the equality duty (revised September 2014).

Specific public sector equality duties

The general duty is underpinned by specific duties, designed to support the functioning of the general duty. Under the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 (SI 2017/353), there are three specific duties: to publish equality information, to publish equality objectives and to publish gender pay gap information. The Regulations apply to public authorities in England and to the non-devolved functions of public authorities in Scotland and Wales. The relevant public authorities are listed in sch.2 to the Regulations. These specific public sector equality duties are intended to enable public authorities better to perform, and demonstrate their compliance with, the general public sector equality duty.

The Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 (SI 2017/353) revoked and replaced the previous Equality Act 2010 (Specific Duties) Regulations 2011 (SI 2011/2260) on 31 March 2017. The 2017 Regulations expanded the specific duties to introduce the gender pay gap reporting duty for public authorities.

In October 2011, the Government Equalities Office published a quick start guide to the specific duties: Equality Act 2010: Specific duties to support the equality duty. A quick start guide for public sector organisations.

The duty to publish equality information

Under the specific duty to publish equality information, a public authority listed in sch.2 to the 2017 Regulations must publish information to demonstrate its compliance with the general equality duty under s.149(1) of the Equality Act 2010, including, in particular, information relating to persons who share a relevant protected characteristic who are: its employees; and other persons affected by its policies and practices. The requirement to publish information about employees does not apply to public authorities with fewer than 150 employees. Public authorities must publish this information at intervals of no more than one year.

The EHRC has published Equality Information and the Equality Duty: A Guide for Public Authorities. The guidance recommends that public authorities with at least 150 employees publish:

  • the race, disability, gender, age breakdown and distribution of the workforce at different grades, and whether they are full or part time;
  • an indication of likely representation on sexual orientation and religion or belief, provided that no individuals can be identified as a result;
  • an indication of any issues for transsexual staff, based on engagement with transsexual staff or voluntary groups;
  • gender pay gap information (the EHRC guidance was published prior to the introduction of the specific gender pay gap reporting duty);
  • information about occupational segregation;
  • grievance and dismissal information for people with relevant protected characteristics;
  • complaints about discrimination and other prohibited conduct from staff;
  • details and feedback of engagement with staff and trade unions;
  • quantitative and qualitative research with employees, eg staff surveys;
  • records of how the authority has had due regard to the aims of the duty in decision-making with regard to employment, including any assessments of impact on equality and any evidence used; and
  • details of policies and programmes that have been put into place to address equality concerns raised by staff and trade unions.

The EHRC guidance says that it would also be useful for authorities to publish information broken up by protected group on:

  • return-to-work rates after maternity leave;
  • success rates of job applicants;
  • take-up of training opportunities;
  • applications for promotion and success rates;
  • applications for flexible working and success rates;
  • other reasons for termination such as redundancy and retirement;
  • length of service/time on pay grade, and;
  • pay gap for employees with other protected characteristics.

The duty to publish equality objectives

A public authority listed in sch.2 to the 2017 Regulations must also prepare and publish one or more "specific and measurable" objectives that it thinks it should achieve to comply with any part of the general equality duty. This information must be published at intervals of not greater than four years.

The information required under regs.4 and 5 must be published "in a manner that is accessible to the public", which could include "publication within another published document" (reg.6).

The EHRC has published Objectives and the Equality Duty: A Guide for Public Authorities, which includes guidance on engaging with members of the public, trade unions and other organisations to identify objectives, and on how to prioritise and select final objectives.

Specific public sector equality duties in Scotland and Wales

The 2017 Regulations apply to specified public authorities in England, specified cross-border Welsh authorities and specified public authorities operating across Great Britain in relation to non-devolved functions. There are separate provisions that apply to public authorities in Scotland (see Equality and human rights: key differences in Scotland and Northern Ireland for further information) and Wales.

The Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011 (SI 2011/1064), which set out the specific duties for public authorities in Wales in relation to their devolved public functions, came into force on 6 April 2011. The specific duties for relevant Welsh public authorities are significantly more detailed than those that are applicable to English public authorities, and include duties to carry out impact assessments on policies and practices, to publish strategic equality plans and to report on compliance with the general equality duty. Technical guidance on the equality duty for the Welsh public sector is available on the EHRC website.

Additional resources on specific public sector equality duties

FAQs

Voluntary reporting on disability, mental health and wellbeing

In November 2018, the Government launched a voluntary reporting framework to help organisations to record and voluntarily report information on disability, mental health and wellbeing in the workplace. The Government said that, although the framework is aimed at organisations with over 250 employees, it can also be used to "support smaller employers who are keen to drive greater transparency in their organisation or industry".

The Government's aim is that employers that engage with the framework will:

  • provide a narrative explaining what actions they are taking to help recruit and retain disabled people; and
  • report the percentage of individuals within their workforce who consider themselves to be disabled or who have a long-term physical or mental health condition.

There is no set approach that employers must follow when collecting and reporting the data, although the Government's guidance contains some recommendations.

Key references

Legislation

Disability Discrimination Act 1995
Protection from Harassment Act 1997
Disability Discrimination Act 2005
Equality Act 2010
Equal Treatment Framework Directive (2000/78)
Disability Discrimination (Meaning of Disability) Regulations 1996 (SI 1996/1455)
Disability Discrimination (Blind and Partially Sighted Persons) Regulations 2003 (SI 2003/712)
Disability Discrimination Act 1995 (Pensions) Regulations 2003 (SI 2003/2770)
Equality Act 2010 (Offshore Work) Order 2010 (SI 2010/1835)
Equality Act 2010 (Disability) Regulations 2010 (SI 2010/2128)
Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 (SI 2010/2279)

Codes of practice

Employment statutory code of practice
Acas code of practice on disciplinary and grievance procedures, and related guidance

Guidance

Equality Act 2010 guidance on matters to be taken into account in determining questions relating to the definition of disability
Equality Act 2010 explanatory notes
Acas guide on disability discrimination and the workplace
EHRC guide on what equality law means for advertisers and publishers
Disability Confident case studies
Employing disabled people and people with health conditions