#9726 - Disability Discrimination Model Answer - Employment Law

Does it satisfy s.6 EA 2010 definition?

• Physical/mental impairment

  • Given its natural meaning – straightforward

• Long term

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

• Substantial adverse effect

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

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

• Normal day-to-day activities

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

Two common exceptions:

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

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

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

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

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

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

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

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

• Conclude

Has the respondent applied a PCP that applies to all?

• Apply – e.g. “The new hours regime applies to everyone in the department regardless of whether or not they are disabled”

Does that PCP put persons of one group (those who have the same specific disability as the claimant e.g. arthritis (s.6(3)(a) EA 2010) at a particular disadvantage compared to others (those who do not have that specific disability)?

• The pool of comparators is everyone in the particular department – statistics from those employees must be compared (how many people with arthritis can comply with the PCP?/How many people without arthritis can comply with the PCP?). Are more arthritic people affected than non-arthritic? If so, by more than 5%, the PCP is likely to be discriminatory…

  • Make a judgement on whether it would be more than 5%; here considering that people with childcare requirements etc. would be in the ‘other’ group, it is likely that the PCP would not be discriminatory

• If statistics from the workplace are not sufficient, national statistic can be taken into account (London Underground)

Has the claimant suffered a disadvantage?

• Apply – e.g. “yes as he cannot work the hours and has been dismissed”

Defence – Can the respondent show that the PCP is a proportionate means of achieving a legitimate aim?

• Balance the discrimination suffered with the benefit to the business

• Employer will only likely succeed if there is no less discriminatory way to achieve the aim

  • Apply – e.g. “could have consulted the others”

Declaration of rights...