{"id":316,"date":"2019-07-30T13:38:56","date_gmt":"2019-07-30T13:38:56","guid":{"rendered":""},"modified":"2019-08-07T11:45:11","modified_gmt":"2019-08-07T11:45:11","slug":"issues-equality-act-2010-8261","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/employment-law\/issues-equality-act-2010-8261.php","title":{"rendered":"Issues of Defining Disability in the Equality Act 2010"},"content":{"rendered":"

Disability
\nin the United Kingdom makes up around a fifth of the total population, yet only
\none eighth of the total people actively in work are disabled.[1]<\/a> This indicates that there
\nis definitely a negative correlation in being disabled whilst working and it
\nseems that the law should work to narrow this gap. Until 1995 there were no
\nmeasures in place to combat disability discrimination at work until the
\ngovernment introduced the Disability Discrimination Act 1995.[2]<\/a> This new legislation was
\nonly given slight welcome from disabled rights campaigners because of the
\nlacking standards in the Acts provisions, in particular was the narrowness of
\nthe definition of disability itself.[3]<\/a> In more recent times this
\nissue has been addressed through the Equality Act 2010[4]<\/a> which states that a person
\nis classed disabled if they have a physical or mental impairment that has a
\nsubstantial and long term effect on day-to-day activities.[5]<\/a>
\n Furthermore there is also common
\nlaw pre 2010 to follow that would combat situations of disability
\ndiscrimination that are more than likely to happen again.[6]<\/a> This shows an effective
\nuse of the law in identifying disability cases of discrimination because the
\nlaw broadens its perspective on what could be justified as a disability which
\nprevents the law becoming narrow and unreasonable. <\/p>\n

However
\nthere is issues in applying the definition itself, Section 6(3) of the Equality
\nAct 2010 make reference to individuals who share the same characteristics is
\nthe same as them both having the same disability.[7]<\/a> Keen highlights an
\nimportant point when he discusses that just because the disabilities are the
\nsame does not mean that they affect the individuals in the same way towards a
\nrole, this shows that they would not share the protected characteristic of
\ndisability for the purposes of the Act.[8]<\/a> In addition disabilities
\nmust present a physical or mental impairment, mental illnesses were only
\ncounted as impairment until it was recognized as a clinical illness and as a
\nresult this was updated in 2005.[9]<\/a> The EAT have made it
\napparent that mental illness is subject to a qualified professional opinion
\nsupported in evidence and generalised descriptions like \u201cstress\u201d would not be
\nadequate as seen through case law.[10]<\/a> It appears this promotes
\nfairness in this area of law because it seeks to prevent any claim being put
\nforward even if they are very slight in nature. This equality can be seen
\nthrough direct discrimination cases which require the employment tribunal to
\ndecide in accordance with the evidence provided and to restrain from
\n\u2018stereotyped\u2019 characteristics of a mental illness.[11]<\/a> Substance addictions do
\nnot amount to an impairment however if they lead to causing an impairment it
\ndoes not matter.[12]<\/a>
\nThis is further seen in McNicol v Balfour
\nBeatty Rail Maintenance Ltd<\/em> where The Court of Appeal effectively dealt the
\ncorrect approach.[13]<\/a> This shows the law
\nadapting to areas with stigmas attached to them and it seeks to promote impartiality
\nand equality of opportunity here. Gould makes a fair assessment of these
\nchanges as he explains that the implementation of The Equality Act 2010 greatly
\nincreases the scope of mental health discrimination claims through allowing
\nthem on the basis of perception, association and third party harassment, he
\nfurther adds that it benefits employees in the respect of employers being
\nlimited to making pre-employment health enquiries.[14]<\/a>  <\/p>\n

In
\naddition impairments must have a \u2018substantial effect\u2019[15]<\/a> on the individual which
\nwas not defined in the statute. However the intention is to include impairments
\nhaving an effect which is more than minor or trivial.[16]<\/a> Here the EAT summarised
\nthat the Act concerns the impairment impacting on the individual\u2019s ability to
\ncarry out tasks, it appears the focus here is based upon things that the person
\ncannot do or only with struggle rather than what
\nthey can actually do.[17]<\/a> This approach avoids the
\nrisk of a tribunal concluding that as there are many things an applicant can
\ndo, the adverse effect of the impairment cannot be substantial as seen through
\ncase law.[18]<\/a>
\n In addition the statute states that the
\nimpairment is classed as being long term if lasted for more than twelve months
\nor is likely to last the rest of the individual\u2019s lifetime[19]<\/a> also temporary capacity
\ncan be a disability.[20]<\/a> Furthermore an
\ninteresting point discussed by Petts reflects the decision made in Patel v Oldham Metropolitan Borough Council<\/em>
\nwhich involved an illness developing from an illness and that this aggregated
\nwith the subsequent period in order to satisfy the threshold criteria.[21]<\/a> Petts argues that
\nevidence gained post discrimination which adds on time even if it\u2019s brought
\nabout through an illness in order to simply satisfy the 12 month period should
\nbe discredited.[22]<\/a>
\n This is a fair statement and should be
\ntaken into account when dealing with the substantial effect of a disability in
\nclaim and the law should seek to clarify this issue.  <\/p>\n

Moreover
\nthe impairment must create an adverse effect on the individual\u2019s ability \u2018to
\ncarry out normal day-to-day activities.\u2019[23]<\/a> Schedule 1 of the DDA
\ncontains an exhaustive list.[24]<\/a> However the Equality Act
\ndoes not feature such a list which leaves this issue to the guidance contained
\nin paragraph D2.[25]<\/a>
\nThis clearly creates a grey area in the law and this should be looked at in
\norder to create a more simplified system in dealing with disability
\ndiscrimination. On the other hand Hepple rightly argues otherwise, he remarks
\nthat this \u2018should make it easier for people whose impairments do not readily
\nmatch any of the eight capacities to show that they meet the definition of a
\ndisabled person\u2019.[26]<\/a> Furthermore another key
\nissue surrounding this area is based upon the reference of \u2018normal day-to-day\u2019 activities
\nbeing excluded from a tribunal having made account of the individual\u2019s ability
\nto carry out work based activities.[27]<\/a> Even though in guidance
\nwork based activities are not taken into account in the determination of
\n\u2018normal day-to-day activities\u2019[28]<\/a> this goes in the way of
\nwhat the EU law determines as Hosking\u2019s discussion on how the ECJ makes clear
\nthat the claimant requires to identify the limitation as a direct result of a
\nphysical or psychological impairment which hinders the participation of professional
\nlife.[29]<\/a> This is another example
\nof the scope of the law for the protection of disability discrimination and the
\nEU\u2019s method is more effective because it places the burden of proof on the
\nclaimant and this is good as it prevents false claims being made.    <\/p>\n

Moving
\non the Equality Act 2010 section 15 refers to the employer treating a person of
\ndisability in a certain way amounting to a detriment.[30]<\/a> However this is an
\nimprovement in this area of law because the previous definition contained in
\nthe DDA[31]<\/a> turned on two critical
\nissues. This was firstly that a degree of knowledge of the complainant\u2019s
\ndisability was needed in regard to the employer.[32]<\/a> Also who was the suitable
\ncomparator when deciding if less favourable treatment had taken place?[33]<\/a> Fair treatment of this
\nsystem is seen through O\u2019Neill v Symm
\n& Co Ltd[34]<\/strong><\/a><\/em> where the EAT
\nheld that a woman was not discriminated against because the employer had no
\nknowledge of her condition. However the EAT disagreed with this in H J Heinz Ltd v Kenrick[35]<\/strong><\/a><\/em>
\nand held that it was not necessary for the employer to have knowledge of the
\ndisability, they decided that the reason may include \u2018a reason deriving from
\nhow the disability manifests itself even where there is no knowledge.\u2019[36]<\/a> This shows dispute from
\nthe governing body in this particular area which should be clarified. In
\naddition the next area that presented problems was shown through Clark v Novacold Ltd[37]<\/strong><\/a><\/em>
\nwhere the tribunal identified two possible approaches to the comparison required
\nin section 5(1)(a). The first was a like-for-like comparison in regard to the
\ntreatment of the disabled person and the treatment of the individual who was
\nunable to fulfil all the requirements of the job, but for a reason unrelated to
\ndisability.[38]<\/a>
\nFurthermore the second involves comparison between the treatment of the
\ndisabled person and the treatment of the individual who was able to fulfil the
\nrequirements of the job.[39]<\/a> In practice the second
\napproach is more likely to result in less favourable treatment and this puts
\nthe expectation on the employer to show evidence in spite of that treatment.[40]<\/a> As a result the initial
\napproach is less likely to end in less favourable treatment which means that
\nthere is a lesser need to show evidence.[41]<\/a> Through the case of High Quality Lifestyles Ltd v Watts<\/em> the
\nCourt of Appeal applied the second causative approach.[42]<\/a> The approach in Novacold<\/em> held its authority among legal
\nrepresentatives until the decision of Lewisham
\nLBC v Malcolm <\/em>showed the Lords deciding that a like-for-like comparison was
\nrequired under the Disability Discrimination Act 1995.[43]<\/a> Regardless of whether
\nthis decision rendered the supposedly less challenging disability
\ndiscrimination indistinguishable from the then \u2018direct\u2019 disability
\ndiscrimination, the choice was clearly at odds with the legislation.[44]<\/a> However Parliament
\nresponded quickly to this by introducing the 2010 act definition.[45]<\/a> This shows the government
\nimproving the law when it creates difficult ways of interpretation and is a
\ngood example of how deep the scope of the law is in combating disability
\ndiscrimination in the workplace.<\/p>\n

Moreover
\nthe law places employers under a duty to make reasonable adjustments which is
\ncontained in the 2010 Act, if any such individual is placed at a significant
\ndisadvantage towards any criterion, provision and practice but also a physical
\nfeature of the premises and a lack of aid for them in the workplace.[46]<\/a> A failure to comply with
\nthis duty would result in unlawful discrimination however a complaint regarding
\na failure to make reasonable adjustment would not depend on proving that there
\nhas been less favourable treatment.[47]<\/a> Hughes discusses how it
\nis this criterion that is \u2018central\u2019 to nearly if not all claims to do with
\ndisability discrimination to which point it is effective.[48]<\/a> To begin with the
\nDisability Discrimination Act allowed employers to argue a justification to
\nmaking a reasonable adjustment; however the significant changes in 2004 removed
\nthis justification defence primarily on the basis that the adjustments only
\nneed to be reasonable.[49]<\/a> This clearly shows the
\nlaw being fair and adapting itself to the benefit of society in this area. One
\nissue regarding this issue is to do with reasonable adjustment in terms of what
\nconstitutes it, Waddington argues that the UK adopts a \u2018duel\u2019 approach to this.[50]<\/a> He discusses that this
\nnotion of \u2018reasonableness\u2019 has been taken to convey the effectiveness of the
\naccommodation and also that is does not impose significant inconvenience or
\ncost to the employer themselves.[51]<\/a> On the other hand academics
\nhave subjected this method of \u2018reasonableness\u2019 to a severe critique, Lawson
\ndiscusses \u2018Because such departures will be required only if they are deemed to
\nbe \u2018reasonable\u2019, they will necessarily be modest and limited. A departure from
\nnormal practice will not be deemed reasonable, and therefore not required, if
\nit would inflict an undue level of hardship on the duty-bearer.\u2019[52]<\/a> It appears that Lawson\u2019s
\nview is clearly siding with the employer here and this means that Waddington\u2019s
\ndiscussion is a more fair assumption of the reasonableness in relation to
\nreasonable adjustments being made in the workplace because it promotes fairness
\non both sides of the agenda which the law should work towards regardless. <\/p>\n

Some
\nissues are apparent in relation to how the definition of disability is applied
\nin law, firstly there is considerable weight placed on a tribunal to conclude a
\nmedical defence. The EAT has held that an error of law can be made if the
\ntribunal relies too much on medical opinion in that regard.[53]<\/a> Nelson J who discusses
\nthis effectively in Abadeh v British
\nTelecommunications plc <\/em>says that the report should be limited to the
\ndiagnosis of the impairment and the assessment of the individual\u2019s ability to
\ncarry out day-to-day activities and whether the medication benefitted them in
\nperforming them.[54]<\/a>
\nOn the other hand a tribunal is not obliged to accept true medical evidence it
\nmay not neglect this type of evidence over its own impression of the individual
\nduring the case.[55]<\/a>
\nIn addition the statute protection extends as far as those whom have had a
\ndisability in the past and have made a full recovery.[56]<\/a> This is because such an
\nindividual may experience discrimination even though they have made recovery
\nand this is showcasing the act adopting the social model of disability.[57]<\/a> Although this is
\ndiscussed as an issue it seems ineffective because the law here is protecting
\nthose who are prone to wrongful discrimination and this shows scope for
\nprotection in this area of law.<\/p>\n

Moving
\non one criticism on the way that disability law has been poorly drafted from a
\ntheoretical point of view is based on the medical and social model.[58]<\/a> Wells discusses that the
\nmedical model which the UK laws are based upon view disability as a problem for
\nthe person, that they are required to show evidence of their disability in
\ncorrelation with a particular definition in the statute.[59]<\/a> He writes that the issue
\nlies with the individual and this is a personal one and is unrelated to
\nexternal factors, the social model views the situation more broadly and
\nrecognises that the issues disabled people face are due to social phenomena and
\nthe real problem lies with practices and attitudes that prevent a person from
\nexercising his or her capabilities.[60]<\/a> To some extent this
\nagrees with the moral aspects of the social model Wells discusses however it
\nstill feels more appropriate that evidence is a crucial aspect of proving
\ndisability otherwise without it there would certainly be a possibility of
\ncorrupt claims being brought forward and individuals that would take advantage
\nof the changes made to disabled persons in the workplace.<\/p>\n

Furthermore
\nWhittle tries to find the middle ground in relation to this issue, he discusses
\nthat the concept of impairment is necessary for a definition however this does
\nnot mean that legislation shouldn\u2019t be based on the social model.[61]<\/a> His views showcase
\nsafeguards that should be in place the first is that the legislative concept of
\nimpairment does not integrate terminology that encourages assessments in
\nrelation to the individuals capabilities and that they ignore the social
\ndimension.[62]<\/a>
\nThe second is that the impairment definition should be defined in a
\ncomprehensive manner so that the legal systems question is more inclined
\ntowards the persons past, present and future surrounding the impairment so that
\nit is a suitable disability for the purposes of the law.[63]<\/a> It seems this view is
\nmore neutral in respect of the law in this area and caters to all aspects and
\nto that extent it can be viewed to benefit the area and Whittle discusses this
\nhere effectively because his assumption promotes fairness overall.<\/p>\n

To
\nconclude one of the most crucial faults with the law in combating disability
\ndiscrimination is its reliance on administrative response to it rather than the
\nanticipation of disadvantages. This reactive nature in regards to employment
\nand the workplace is divergent from its pre-emptive equivalent in Schedule 4 to
\nthe Equality Act which relates to the premises overall.[64]<\/a> Furthermore the
\nanticipatory obligation is utilised without the need for engagement from the
\nclaimant, as a result this makes the employer apply its thoughts towards either
\nfeatures which impose restraints on the disabled or removing limitations and or
\nmodifying them as Lawson elegantly points out.[65]<\/a> Also this appears more
\napparent after Ayres and Braith-waite compliment Lawson\u2019s discussion by stating
\nthat corporate behaviour is varied to the degree that some will comply with the
\nlaw out of a social responsibility but some will only do so if it is
\nbeneficiary towards themselves.[66]<\/a>  Moreover by adapting the workplace to the
\nneeds of disabled people provides a greater transformative potential for there
\nto be a general state of equality in the workplace overall no matter the state
\nof the individual, by this taking place it would provide much greater scope for
\nthe law to benefit the disabled.[67]<\/a> However the reactiveness
\nof the law in this area is still quite beneficial at ensuring an effective
\nresponse to a person\u2019s needs which has been determined on a case-by-case basis,
\nif only the law could look at particular provisions which hinder people of disability
\ngenerally as this would absolutely advance disabled people at work.[68]<\/a><\/p>\n

Bibliography<\/strong><\/p>\n

Primary
\nsources:<\/strong><\/p>\n

Table of cases:<\/p>\n