Disability discrimination: Disabilities: Equality Act 2010
Under the new Equality Act 2010, some employees won’t even need to prove a disability exists before they can claim discrimination! What’s happened?
Increased rights. When the Equality Act 2010 comes into force on October 1 it will consolidate all existing discrimination laws into a single piece of legislation. It will also increase the protection given to certain groups, including the disabled. But following the changes, certain individuals won’t need to prove that they have a disability before they can seek the protection of the Act. Why is that?
Defining it. The definition of a “disability” has not been changed. However, when deciding whether or not an employee is disabled, the tribunal is no longer required to consider if they satisfy the “eight capacities”. For example, they won’t need to show that any impairment significantly reduces their mobility or ability to function on a day-to-day basis. All it must look at are the individual facts of each case. As a result, it will be much easier for an employee to argue that they are disabled within the meaning of the Act.
Associative discrimination. A further provision introduced by the Act is the concept of “associative discrimination”. This was first seen in the case of EBR Attridge Law LLP v Coleman 2009. Although that case eventually settled out of court, the government decided to specifically protect those who are connected to a disabled person from less favourable treatment, e.g. where a carer’s request to work flexibly is rejected. So this is a new danger area; how the tribunals will interpret it remains to be seen.
Tip. Although conditions will be looked at on a case-by-case basis, addictions to non-prescription substances, e.g. alcohol or nicotine, are specifically excluded from the Act. However, sufferers from HIV and all cancers are protected. In other words, an employee with one of these illnesses doesn’t have to prove anything – they are automatically protected.
“Tips & Advice Personnel”: 30.9.10