Disability Discrimination in the Context of Equality Act 2010 - Case Study Example

TABLE OF CONTENTS Disability Discrimination 1 Introduction 1 Statistical Discussion 9 Legal Discussion 11 Conclusion 12 References 14 Disability Discrimination Introduction This report provides information with respect to employment issues pertaining to disabled people in the United Kingdom with special focus on the provisions of the Equality Act 2010. In this regard, the extant literature on the topic has been examined. In addition, employment statistics have been scrutinised, and the relevant case law has been analysed. Finally, conclusions have been arrived at. The Equality Act 2010 provides protection against discrimination on the basis of age, disability, gender reassignment, race, religion, sex, sexual orientation, marriage, civil partnership, pregnancy, and maternity. In addition, this Act declares that discrimination transpires whenever a disabled person is treated unfavourably, due to a feature that is associated with that person’s disability. An instance of this being the spelling mistakes made by a person with dyslexia that could invite discriminatory behaviour from the employer. Such discrimination has been deemed to be unlawful, if the employer or his representative was aware of the disability or could be reasonably be expected to have been aware of it[Adv14]. However, such discrimination can be justified if the employer can establish that it constituted a proportionate means of achieving a legitimate goal. Literature Review The Equality Act 2010 provides a description of disability. This Act describes a disabled person as an individual with physical or mental impairment that exercises a substantial and long-term adverse influence upon that person’s capacity to perform the normal daily activities. This definition, evaluates disability from the perspective of what constitutes impairment, what is denoted by a person’s capacity to conduct daily activities, and when such impairment could produce a sizeable and enduring adverse effect upon the ability to carry out ordinary routine activities[Cit15]. Section 15 of the Equality Act 2010 declares that a person discriminates against a disabled person if he treats them unfavourably, due to some consequence of their disability. Moreover, it should not be possible to justify such treatment as a proportionate means of realising some legitimate goal. An employer or service provider will not be liable for discrimination if he had been unaware of and could not have reasonably known about the disability of a disabled person. All the same, the employer or service provider has to make all reasonable endeavours to determine the presence of disability in a person. This form of discrimination differs from direct and indirect discrimination, as it does not require a comparator to establish less favourable treatment[The124]. In addition, Section 20 of the Act obliges employers and suppliers of goods and services to make reasonable adjustments for the disabled. Thus, a three-fold duty is imposed, which states that first, where a provision, practice or criterion puts a disabled person at a decided disadvantage with regard to a pertinent issue, in comparison with those who are not disabled, the entity under such duty has to adopt reasonable measures to avoid such disadvantage[The124]. Second, with respect to disabled persons, who would be at a subs0tantial disadvantage, in the absence of auxiliary aid, in comparison to people who are not disabled, reasonable steps have to be taken to furnish the auxiliary aid by the person whom such duty applies. Third, with respect to a physical attribute that places a disabled individual at a substantial disadvantage, vis-à-vis those who are not disabled, reasonable steps have to be taken by the person who is under such duty, to prevent the disadvantage[The124]. Furthermore, in the context of provision of information, the reasonable measures to be adopted under this duty, require the information to possess an accessible format, such as braille for the blind. Previously, the duty relating to the provision of auxiliary aid was restricted to goods and services, and premises. This has subsequently been made to encompass employment[The124]. The researchers Cunningham and James have claimed that disabled is a description that provides scant information regarding the nature of an individual’s disability, the outcomes that are associated with it with respect to the work that such persons can take up, and the support required by such people. Noon and Ogbonna had gone further and queried the utility value of such classification. Consequently, cases undertaken by the employment tribunals suggest that there is considerable difficulty in assessing applicants against the definition of disability. During the initial years, 959 claims to be precise, had indicated substantial lacunae with respect to knowledge and comprehension relating to the definition of disability[Woo03]. Subsequently, Grover and Piggott have provided significant insights into the disability discrimination legislation to be found in the UK. Such legislation has provided the disabled with a measure of protection at the workplace. However, this legislation describes the disabled as being problematic, due to its being based upon the presumption that disability results from the impairment of the individual. The deficiency in the employee is highlighted, instead of the drawbacks in the environment, which render that person disabled[Gro13]. In addition, the notion that adjustments to the workplace have to be merely reasonable, denotes that it is possible for economic considerations to overrule the disabled person’s rights. Thus, the Equality Act 2010, stipulates that reasonable adjustments to the workplace have to be made only after an array of considerations, including cost, resources, size, and the availability of financial support have been taken into account. As a result, employers can discriminate against disabled individuals, as long as the economics of their business provide justification for such conduct[Gro13]. Furthermore, the Employment and Support Allowance (ESA) was introduced with the aim of supplanting the previous model that adopted the same universal approach. This new mechanism addresses the individual requirements of the disabled. Nevertheless, ESA claimants tend to be at a disadvantage, due to the presence of this personalised support system. For instance, disabled persons deemed to be uncooperative with their plan to re-engage in work are subjected to financial sanctions. It has been stated by some that these sanctions discipline and encourage the disabled to adopt a more cooperative positon. Such personalisation emerges from unequal power relationships. The UK Government stipulates the parameters regarding what the individual has to do. Consequently, instead of a personalisation that provides greater empowerment, the UK implements an oppressive version of the same. Thus, a transition from the social protection of the welfare state to a paradigm of self-responsibility is clearly evident[Gro13]. Nevertheless, several scholars have stated that any government has to fulfil certain basic commitments, such as, the elimination of grinding poverty, provision of adequate protection against market susceptibility, mitigation of inequalities, and protection against discrimination. The disabled in the UK are some of the poorest residents of the country. The advent of disability discrimination legislation has not prevented these people from being subjected to systematic discrimination[Gro13]. This makes it possible to contend that the successive governments of the UK have not been that keen to strictly implement disability discrimination legislation. In addition, empirical evidence is equivocal as to whether increased conditionality improves the labour market position of the individuals who are subjected to it. In fact, several scholars had discerned that sanctions associated with employment related conditionality, served to severely limit the benefit use and enhance migration from benefits. Thus, sanctions and conditionality could induce people to eschew benefits, however this would be at the expense of the quality and longevity of the jobs that they can access[Gro13]. Moreover, indirect discrimination has been extended to encompass disabled individuals. As a consequence, a disabled employee or job applicant can claim that a specific requirement or rule of the employer discriminates against people with the same disability. If the employer cannot justify that rule or requirement, then his conduct would be regarded as unlawful. Furthermore, the Equality Act 2010 provides that it is unlawful, with the exception of certain circumstances, for employers to seek details of applicants’ health, prior to offering work[Adv14]. All the same, the provisions of the Disabled Discrimination laws do not prohibit discrimination by clients in choosing self-employed suppliers of services or goods. Furthermore, there is very little possibility of the benefit regime encouraging the disabled into self-employment. Moreover, this regime does not hold out the possibility of limiting the probability of labour market exit, vis-à-vis the self-employed. This can be attributed to the fact that the cardinal disability benefit in the UK, namely Incapacity Benefit, had been provided to the self-employed on the same terms as it was provided to the employees[Jon112]. Initially, the Disability Discrimination Act of 1995, constitutes the primary legislation relating to disability discrimination. This was modified by the EU Framework Employment Directive and then extended by the Disability Discrimination Act of 2005. With regard to individuals in waged employment, the Disability Discrimination Act provides protection against discrimination on the basis of disability. In addition to providing protection against discrimination in recruitment and dismissal, this act obliges employers to ensure reasonable adaptations at the workplace. This includes suitable modifications to work arrangements and the workplace[Jon112]. Nevertheless, the Disability Discrimination Act does not have a direct effect upon the self-employment of the disabled. However, it could mitigate the impact of inducement into self-employment ensuing from discrimination against the disabled. With regard to self-employment, there are several sections of the Disability Discrimination Act that have an impact[Jon112]. In addition, a survey had been conducted in the year 2003, with a view to investigating the higher incidence of self-employment among disabled individuals. In addition, this survey was aimed at unravelling the relative influence of discrimination and accommodation factors. The probability of self-employment was decomposed on the basis of disability status[Jon112]. The probit and bivariate probit models have been employed in this endeavour. The bivariate probit model controls the potential selection bias that is generated when the focus is limited to the employed. Moreover, the decomposition, on the basis of disability status, attempts to identify the contribution of differences in coefficients, which has been termed the unexplained gap. It has been the customary practice to interpret the unexplained gap as a measure of discrimination. [Jon112]. However, this hiatus captures differences in preferences for self-employment among the disabled. Thus, it potentially amalgamates these effects. In addition, the following case law reveals the attitude of the courts with respect of the rights of the disabled under the equality laws for disabled people. In Secretary of State for Justice v Baverstock UKEAT/0363/14/JOJ, an appeal was made against the employment tribunal’s findings of unfair dismissal, disability discrimination and remedy judgement. The liability appeal was dismissed, but the remedy appeal was allowed. In Fox v British Airways Plc, an appeal was allowed against the employment tribunal’s dismissal of claims regarding unfair dismissal and absence of reasonable adjustments. In Unwin v Oltec Group Trading Limited & Anor, an appeal was allowed against the unfair dismissal and disability discrimination. In the case of MetrolineTravel Ltd v Stoute an appeal was allowed against the decision that a person with Type 2 diabetes was disabled under the provisions of the Equality Act 2010. This appeal was allowed and the claimant was directed to pay the appeal fee incurred by the respondent. Furthermore, in Mefful v Merton & Lambeth Citizens Advice Bureau, an appeal was allowed in part against a finding that appellant was not disabled. A perusal of the case law reveals the truth that the employers accord least importance to the disabled rights of their employees. Most of these cases have succeeded at the appellate stage. This shows that the employment tribunals do not decide the cases, dealing with the employment rights of the disabled in favour of the latter. Statistical Discussion [Dep141]. Statistics provided by the employment tribunals prove to be quite informative. The table given below depicts some of this information. Year 2008-2009 2009-2010 2010-2011 Disability Discrimination 6,600 7,500 7,200 Race Discrimination 5,000 5,700 5,000 In the period April 2009 to March 2010, 6,800 disability claims had been attended to, and out of these 31% had been withdrawn, 46% had ACAS conciliated settlements, 7% were rejected, and 1% were accorded a default judgment. The remaining claims reached the hearing stage, and 3% achieved success, 3% were rejected and 9% failed in a full hearing. Thus, no more than a fifth of the DDA claims that reached the hearing stage attained success. The average, median and maximum awards for these 72 successful claims were £14,000, £6,000, and £181,083, respectively[Lad11]. With regard to disabled workers, self-employment has been acknowledged as a major source of employment. With respect to the UK, the employment rates for men and women with a work-limiting disability were 43% and 38%, respectively. These were, in each category, around 50% of the rate of the non-disabled counterparts. Moreover, 21% of work-limited disabled men with employment were self-employed, whereas, 17% of the men who were non-disabled or males with a non-work-limiting disability were self-employed. The corresponding proportions for females was 9% and 6-7%, respectively[Jon112]. The over-representation of the disabled in self-employment could constitute a rational response to employer discrimination in the salaried sector. This situation had been observed with regard to the ethnic minorities. All the same, as long as enclave effects prove to be elusive, there was every possibility of consumer discrimination having an adverse effect upon the return to self-employment among the disabled[Jon112]. This information has been depicted in a tabular form below. As such, the incentives provided for engaging in self-employment rely upon the comparative strength of these two sources of discrimination. However, other aspects of self-employment hold out the possibility of furnishing alternate benefits for the disabled group relative to the non-disabled group[Jon112]. Legal Discussion The Equality Act defines disabled persons as individuals with a physical or mental impairment that has an abundant and abiding adverse effect upon their ability to conduct their customary daily activities[Adv14]. In addition, the Equality Act renders it unlawful to discriminate against disabled individuals, with respect to employment; provision of goods, facilities, and services; or management or disposal of premises. Moreover, the Equality Act 2010 has excised the necessity for considering the list of eight capacities that were being employed for determining the disability or otherwise of an individual. The term substantial effect has been described in this Act, at Section 212(1), as an effect that is superior to the effect produced upon the majority, by the physical or mental conditions with minor or trivial effects. Furthermore, Part 3 of the Equality Act 2010 pertains to goods, facilities and services. It was made effective on 1 October 2010. An individual is protected at the time of requesting a service, good or facility, as well as during the course of being provided with a service. This has been stipulated under Section 36 of the Equality Act. Nevertheless, the UK understanding of disability is contested by the disparate notion regarding disability rights. The Equality Act, under Section 20, merely requires a reasonable adjustment to be made with respect to a disabled person, when there is a substantial disadvantage to such a person. From the perspective of a rights-based approach, the substantiality requirement should be disregarded in the presence of rights curtailment or disadvantage. This would also apply to instances, wherein the reasonable accommodation imposes an undue or disproportionate burden. Under Section 19(2)(d) of the Equality Act, a criterion or practice that is indirectly discriminatory can be justified if it constitutes a proportionate means for achieving a legitimate aim[But11]. Conclusion Equality Act, per se, prohibits the less favourable treatment of the disabled by employers. In addition, it requires employers to undertake reasonable alteration to work procedures and the workplace, so as to accommodate the disabled. Despite the extension of the ambit of the law and the increase in the number of disability cases being heard by industrial tribunals, claimants in disability cases have experienced a low rate of success. Subsequent to a scrutiny of several cases relating to disability discrimination it has been discerned that the rights of the disabled have not been accorded priority by the employers. Statistics reveal that very few disability claims reach the hearing stage and achieve success in the courts of law. In addition, the majority of the cases were successful at the appellate stage. This revealed the fact that employment tribunals did not favour the employment rights of the disabled. It has been rightly declared that excessive representation of disabled individuals in self-employment provides a logical response to employer discrimination in the salaried sector. As such, due to the ambiguity in the definition of disability, under the law, the representation or success of claims by the disabled people in the courts is scanty. As such, the Equality Act does not preclude discrimination by clients in their preference for certain categories of self-employed suppliers of goods or services. A certain amount of reservation has been expressed, regarding the adequacy of the provisions of the Equality Act to contain discrimination and in improving the access of the disabled or sufferers of limiting substantial illness, to paid employment. All the same, the equivocal nature of the basis for justification and the definition of disability have resulted in considerable intricacy and a substantial body of case law. References Advisory, Conciliation and Arbitration Service (Acas), 2014. The Equality Act 2010 – guidance for employers. [online] Available at: [Accessed 9 June 2015]. Butlin, S. F., 2011. he UN Convention on the Rights of Persons with Disabilities: Does the Equality Act 2010 Measure up to UK International Commitments?. Industrial Law Journal, 40(4), pp. 428-438. Citizens Advice, 2015. Disability discrimination. [online] Available at: [Accessed 19 June 2015]. Department for Work & Pensions, 2014. Family Resources Survey. [online] Available at: [Accessed 7 June 2015]. Disability Discrimination Act (c. 50), 1995. London, UK: Her Majesty's Stationery Office. Equality Act (c. 15), 2010. London, UK: Her Majesty's Stationery Office. Fox v British Airways Plc (2015) UKEAT/0315/14/RN. Grover, C. & Piggott, L., 2013. Employment and Support Allowance: capability, personalization and disabled people in the UK. Scandinavian Journal of Disability Research, 15(2), pp. 170-184. Jones, M. K. & Latreille, P. L., 2011. Disability and Self-Employment: Evidence for the UK. Applied Economics, 43(25-27), pp. 4161-4178. Laddie, J., 2011. Disability Discrimination and the Equality Act. [online] Available at: [Accessed 7 June 2015]. Mefful v Merton & Lambeth Citizens Advice Bureau (2014) UKEAT/0290/14/DA. MetrolineTravel Ltd v Stoute (2015) UKEAT/0302/14/JOJ. Secretary of State for Justice v Baverstock (2015) UKEAT/0363/14/JOJ. The Law Society, 2012. Equality Act 2010. [online] Available at: [Accessed 7 June 2015]. Unwin v Oltec Group Trading Limited & Anor (2015) UKEAT/0322/14/BA. Woodhams, C., 2003. Defining Disability in Theory and Practice: A Critique of the British Disability Discrimination Act 1995. Journal of Social Policy, 32(2), pp. 159-178. Read More