Employment Law and Disability, Equality Act 2010 - Essay Example

Employment Law and Disability Essay Nonmember 24, 2011 Words: 4, 066 Name: Name of the client Institution: Name of institution Gender, sex and racial discrimination are types of discriminations that are generally banned by law and they make individuals lack equal opportunities that are also available to others based on such characteristics as age, sex, gender reassignment, color and race among other characteristics outlined by the Equality Act 2010 as protected characteristics1. Equality Act 2010, sums up all the previous legislations on discrimination and bans discrimination in light of the harmonized set characteristics2. However, the notion that discrimination is an observable act is misleading for discrimination can also manifest itself indirectly. Thus, if discrimination is not directly observable, then, the question of whether one can claim for discrimination arising from being perceived to have a protected characteristic other than an individual being discriminated from having the actual protected characteristic which is observable arises. Perceptive discrimination falls under direct discrimination whereby A out rightly discriminates against B because B has what is termed as a protected characteristic and thus the way person A treats person B is different from the way A treats other people. However, perceptive discrimination definition is very subjective and distinct to each individual and depends on one’s interpretation to the extent that Equality Act 2010, itself does not give the definite definition of perceptive discrimination and instead gives the definition of direct discrimination in a manner that indicates that perceptive and associative discrimination are covered by the overall definition of direct discrimination. For instance, "A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favorably than A treats or would treat others." This implies that any person can claim for discrimination and the person needs not to be the one possessing a protected characteristic but the bottom line should be discrimination has occurred as a result of a person having a protected characteristic3. Thus, it becomes outright that the protected characteristic can be possessed by someone else (associative discrimination) or the individual who is perceived to have the protected characteristic. From this, the definition of perceptive discrimination can be inferred to mean that, it occurs where an individual is discriminated in light of having a protected characteristic while in the real sense the individual does not possess the protected characteristic. In addition, perceptive discrimination can also occur whereby an individual is perceived to have a certain disability while in actual sense that individual possess a different kind of disability. Prior to the extensions that were made in the Equality Act 2010, perceptive discrimination covered protected characteristics of age, belief, sexual orientation and race, but the extensions have made it possible for perceptive discrimination to cover other protected characteristics of sex reassignment, gender and disability with the exception of protected characteristics of marriage or social partnerships excluded in perceptive discrimination. Equality Act 2010, thus eliminates the confusion that arises when evaluating whether a person can be discriminated on the basis that a person is perceived to possess a protected characteristic. In Aitken v Commissioner of Police of the Metropolis EAT/0226/09, the EAT in remarks that were accidental rejected the idea that the DDA 1995, should be interpreted to include discrimination arising from a perceived disability on the grounds that the claimant bad behavior could be used to construe disability and that such behavior should not be part of disability. In reference to DDA 1995, a person is said to be disabled or has a disability if “he has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day to day activities”4. On the same note too and taking into consideration perceptive discrimination, the employer did not retire the claimant on the basis of possessing a perceived characteristic for even after being assessed by doctors, the claimant was deemed unfit to contact with the public. Thus Aitken was not discriminated on grounds of his disability (mental illness) but on grounds of his behavior to others and to which the EAT further clarified that it could not be taken to be part of his disability. Aitken’s actions had no relation with his disability and hence there was no discrimination on the part of Commissioner of Police of the Metropolis. Questions in the case ranged as to whether direct discrimination can be as a result of perceived disability and whether the claimant’s bad behavior is a necessary face or manifestation of his disability. In addition, in deciding to compare the disabled person with a comparator, whether the comparator should only exclude the disability that the claimant had or whether the comparator should also exclude the conduct that the claimant displayed at the party. The issue of whether there was a misunderstanding of Aitken’s disability arose and whether that misunderstanding was the one that lead to the employer taking the actions. In choosing the comparator, it becomes unfair and even harder when proving perceptive discrimination when the comparator has to exclude for instance the conduct that the claimant (Aitken) displayed at the party. In the event of mental conditions as well as physical conditions, by the mere facts that an employee possesses those conditions does not mean that they necessarily contribute to disability because they are not serious or the disability does is not long term (Smith & Baker 1995). Jones v PO [2001] IRLR 385, CA, the case brought into limelight whether the ET had any powers to appraise medical evidence presented and also to further issue a conclusive evidence as to whether the General Practitioner in issuing the medical evidence was not correct and go ahead to make a subjective own assessment. Justified treatment and decisions by the employer are only considered rational even to any other employer if the decision is substantial to the circumstances and hence no discrimination on the part of the Commissioner of Police of the Metropolis. By the fact that a tribunal cannot disagree with an assessment which has already been done, provided that the opinion arrived at has been arrived by qualified doctors is just but one of the difficulties in establishing that an employee has been perceptively discriminated by the employer. In Clark v Novacold [1999] IRLR 318 CA case further cements the argument that it is difficult for a claimant to establish discrimination on the part of the employer on the basis of perceived discrimination. Clarke was dismissed from work after suffering an injury that saw him off from work for a considerable amount of time and to which his doctor could not fully ascertain whether he would be back to work in his physically challenging job after the 16 weeks leave that he was given by Novacold. Mr. Clarke was dismissed after his doctor made it clear that there was no specific duration for which he could be said to have recovered. The employer, having a duty under law to justify if the discrimination accorded to Clarke was justified put up a defense that Clarke could not continue performing the duty for which he was employed at Novacold to perform and that there were no positions that Clarke could fill in the company5. Novacold could not wait for Clarke to recover from his injuries or offer him a job that he could have performed even with the injuries. This then raises the question as to whether the employer dismissed Clarke on the basis that he could not perform his duties for which he was employed to perform in the company or the employer perceived him to have a disability that rendered him incapable of performing his duties. It is thus apparent that an employee has to more than sweat when presenting evidence that can hold an employer accountable for perceptive discrimination. Future effects of a present medical condition can lead to wrong assumptions and these assumptions may make an employer to perceptively discriminate an employee6. In this case also, serious analysis needs to be done as to whether the employer in discriminating the employee had information as to the time that the impairment will continue impacting on the employee’s normal day to day activities. In a case where reasonable adjustments would have been made and therefore unfair dismissal would not have arose, the employee, Mr. Clarke was permitted under s5 (1) to advance a complain related to reasonable adjustments. In this regard too, any medical treatment, counseling that is being accorded to the patient and psychiatric aid is taken into consideration when advancing claims of disability and notably too in advancing claims that an employee has been discriminated on the basis of perceptive discrimination7. Morse v Wiltshire CC [1998] IRLR 352 EAT, case can also be singled out when discussing perceptive discrimination. Wiltshire County Council only selected drivers and Mr. Morse was not selected on the basis of redundancy for he had an impairment on his hand. In response to the case, the EAT views were that the ET duty was not to decide whether an employer had made reasonable adjustments in regard to the employee who is being discriminated but whether the employer’s adjustments were reasonable enough8. This showed that the decisions regarding reasonable adjustments were very objective and the employer had therefore not taken reasonable adjustments that satisfied the EAT9. The employer therefore perceptively discriminated the employee by failing to put up reasonable adjustments that satisfied the EAT. However, the employer can fail to make reasonable adjustments if the adjustments that a disabled employee needs are very personal for instance toilet needs10. Goodwin v Patent Office [1999] IRLR 4 EAT, case paved way for the clear definition of disability and therefore clear facts as to what disability should comprise. In the case, it was apparent that for a person to claim to be disabled and for such a claim to hold ground, the emphasis is not on what the disabled person cannot do owing to his or her disability but what the individual can do in his or her condition11. Therefore, perceptive discrimination is evident in Cruickshank v VAW Motorcast Ltd [2002] I.C.R. 729; [2002] I.R.L.R. 24 (EAT)12, whereby the appellant, Mr. S. B. Cruickshank against the conclusion of the ET that he was not disabled in regard to DDA 1995 was dismissed from work. The issue of unfair dismissal in the case when left to stand on its own presented no challenge to the Employment Tribunal in concluding that the appellant was not disabled13. However, in regard to the standards set forth in defining disability in Goodwin v Patent Office [1999] IRLR 4 EAT, the appellant disability is outright for his asthmatic conditions were having adverse effects on his day to day activities14. Perceptive discrimination is on the grounds that a less favorable action was accorded to the appellant whereby his employment was terminated because of the incorrect assumption of his disability which is covered in the Equality Act 2010. Thus, the ET in its decision that Mr. Cruickshank was not disabled made him to be treated less favorably as others who would be disabled and in such situations be treated. Under equality Act 2010, the appellant in this case was disabled and hence can claim that a less treatment was accorded to him or her that is different from when the actual basis of disability would have been taken into consideration15. Controversies as to whether employees are likely to claim for disability if there are unable to sufficiently establish that they had been discriminated on the basis of their disability arises. In the case of Heinz Co Ltd v Kendrick [2000] IRLR 144 EAT, the claimant was able to claim that he was unfairly dismissed from work as a result of his disability even if the diagnosis of his disability was after he was unfairly dismissed16, a decision arrived at by the EAT in deciding whether the employee was discriminated against while looking at both sides of the discriminator (employer) and the victim (disabled employee). However, employer’s subjective knowledge as to the employee’s disability is not necessarily a basis for establishing discrimination. Employees also have difficulties in claiming that they have been perceptively discriminated by the employer on the basis of the definition of disability. The conceptualization of the definition of disability by the DDA 1995, as the inability of a person to perform particular roles posses serious questions as to who should be covered by the Act. However, various decisions of the EAT has shown that adopting the social model into the definition of disability has emphasized the interactions of disabled persons and the environment for instance in the case of Vicary v BT [1999] IRLR 680, EAT, and therefore enhance societal responsibility where disability is not outright and where in light of the actions of the employers employees who have impairments may be discriminated against. But then again, what happens when an employee who is disabled is perceived as not disabled? In the case of Vicary v BT [1999] IRLR 680, EAT, the ET had held that Mrs. Vicary was not disabled because the effects of her so claimed disability did not have substantial effects on her normal day to day activities, a decision that was overhauled by the EAT which held that by a disabled employee toning down the effects of his or her disability does not amount to the person not being disabled and thus Mrs. Vicary in reference to EAT was held to be disabled17. For Mrs. Vicary to have to claim perceptive discrimination, the DDA 1995, version of disability needed to be expounded to give room to her in claiming perceptive discrimination for her inability to perform some normal day to day activities amounted to disability and this ultimately meets the definition of disability in the Equality Act 2010. This case also unearthed the facts that, employers are having an easy time in resisting that they have discriminated against an employee on the basis of perception by putting up a defense that they (employer) do not actually perceive the employee to be disabled in regard to the definition put forth in Equality Act 2010, for their perception was an employee was suffering from less minor effects which are trivial in reference to the Act18. In Archibald v Fife [2004] UKHL 32 1 July 2004, Archibald after having her surgery was incapable of performing her duties in Fife Council but reasonable adjustments were made where she was able to work in the office of the same employer a duty that did not require a lot of manual work. However, she was unsuccessful in the posts that she applied in the same council a fact that she attributed to the council inability to look over/past her previous occupation of a simple road sweeper. She was dismissed from the Council and her arguments that she was unfairly dismissed were not heeded. EAT argued that, just because a person was disabled, it did not mean that reasonable adjustments involved eliminating competitive interviews so that the disabled persons are placed at an advantage over other shortlisted applicants for the same job that disabled persons had applied for19. However, one is left to wonder whether Archibald was perceptively discriminated by Fife Council for the Council could not look beyond the simple road sweeper she was. To ascertain that for a claimant to claim that he/she was perceptively discriminated is just but a tip of the iceberg for how will the claimant prove that an employer has perceptively discriminated him or her? For instance, how could Archibald prove to the EAT that she missed the positions in Fife Council, not because there were competitive interviews but because the employer perceived her as incapable of any other duty apart from being a road sweeper? In a twist of events, employees who employers would find difficult to work with and hence discriminated against would seek legal redress in the form of perceptive discrimination after following facts of some cases in one perspective. But this would also depend on whether an employer knows whether the employee has a disability or not. In Ridout v TC Group [1998] IRLR 629, EAT,20 an employer’s lack of knowledge as to whether an employee has a disability can be sufficient to escape the claim of perceptive discrimination if the employer builds up a defense that he or she was unaware of the employee’s disability. In holding the employer accountable in cases where discrimination that could be controlled by the employer occurred, the EAT tribunal held that it would be pushing the legal limits beyond and thus the EAT gave permission to the parties to advance the claims in the Court of Appeal. Thus in this regard also, an employee can also be perceptively discriminated in instances where his or her employer has the capacity to act so that they are not discriminated but such claims would not be considered by the EAT for fear of pushing legal boundaries beyond its capabilities21. Equality Act 2010, therefore imposes an obligation to employers (Morris & Deakin 2005) to address disadvantages that face disabled employees even in cases where the disability may be perceived or in instances where the employer may take unfair actions against an employee because the impairments that the employee has are perceived that they will have long term effects on the employee’s ability to work in the organization22. Therefore, under the Act, equality does not directly translate to “sameness” for the equality Act 2010, approaches discrimination from even the social perspective, a concept of discrimination that the DDA 1995 did not address for it looked at a disabled person’s functional drawbacks rather than the day to day normal activities23. Thus, it is apparent that the 1995 Act should have been amended to include perceived discrimination. Conclusion In conclusion, legislation becomes complex when amendments are added to the original legislations altering the content and thus the interpretation of the content for instance, the Disability Discrimination Act 1995 which has been superseded by the Equality Act 2010. In the life of the disabled persons, further complexity is achieved when their life, life from discrimination is solely dependent on people especially the legal body in interpreting whether there has been discrimination of the disabled person or not24. As previously discussed in the introduction section, perceptive discrimination is subjective to an individual and cases for instance of when an employee may perceive that he/she was unfairly dismissed from work as a result of the employer perception that he/she has a disability arises. Thus understanding, the words that are put into legislation is not the only importance for these wordings needs to be incorporated into actions so that they can serve the purpose for which they were written for25 and the reason why the EAT obiter remarks which initially rejected that the DDA 1995, should be amended to include discrimination because of a perceived disability were/are and continue to be superseded by the Equality Act 2010, making it more complex for the disabled persons to provide conclusive evidence that can hold an employer into account in light of actions by the employer emanating from perceived disability for instance unfair dismissal from work. Disabled persons are the ones who best understands what it means to be perceptively discriminated against and the observers, legal professions, judges among others have no clue or no answers to the questions that linger in the discriminated person’s minds when they are dismissed from work (Smith & Baker 1995). We therefore cannot ignore the fact that such persons seek answers to such questions of whether they have been dismissed from work simply because the employer has perceived their inability to work at the time that they have injuries means that they are disabled for instance in the case of Clark v Novacold [1999] IRLR 318 CA. Then again in considering Mrs. Archibald, the question of whether Fife Council was unable to see Mrs. Archibald as something else other than a simple road sweeper cannot fail to linger in the minds of both the claimant and the rest of the society ascertaining that discrimination and inequality goes hand in hand regardless of the justifications put forth by the employer. Bibliography Archibald v Fife [2004] UKHL 32 1 July 2004 Clark v Novacold [1999] IRLR 318 CA Disability Discrimination (Meaning of Disability) Regs SI 96/1455; Disability Discrimination Act 1995 Disability Discrimination Act 1995C. 50Part 1, S 1 (1 & 2): Meaning of “Disability” and “Disabled Person” Doyle, ‘Disabled Workers’ Rights, the Disability Discrimination Act and the UN Standard Rules’ (1996) 25 ILJ 1 Doyle, ‘Enabling Legislation or Dissembling Law? The Disability Discrimination Act 1995’ (1997) 60 MLR 64 Equality Act 2010 Goodwin v Patent Office [1999] IRLR 4 EAT Heinz Co Ltd v Kendrick [2000] IRLR 144 EAT James, G “The Meaning of Disability: Physical and Mental Impairment” (2002) 31 ILJ 156 (available through Ingenta or EBSCOHost EJS or Lexis UK Journals database). Jones v PO [2001] IRLR 385, CA Kenny v Hampshire Constabulary [1999] ICR 27 MORRIS, G. & DEAKIN, S. Labor Law. UK. Hart Publishing, 2005. Morse v Wiltshire CC [1998] IRLR 352 EAT Murray v Newham CAB [2003] IRLR 340 case presented the facts that under the definition of discrimination disability, conditions that are as a result of the consequences of disability do not apply but rather, the claim should apply only when viewed in light of free standing conditions in regard to DDA 1995. Protected characteristics are the characteristics that were harmonized by the Equality Act 2010 and they include; age, race, disability, marriage, pregnancy, civil partnerships, maternity, religion, gender reassignment, belief, sex and sexual orientation. Ree v Redrow Homes EAT 0035/03; (2003) 153 NLJ 718 Ridout v TC Group [1998] IRLR 629, EAT See also, Power v Panasonic [2003] IRLR 151 EAT, in considering whether a person is disabled or not, emphasis is laid on whether the impairments are having a substantial effects on the disabled employee on his or her normal day to day activities and not on what caused the disability. See Kapadia v Lambeth BC [2000] IRLR 699, CA SMITH, I. & BAKER, A. Employment Law. 10th Edition. UK. OUP Oxford, 1995 Vicary v BT [1999] IRLR 680, EAT Read More