Disability Discrimination under the Equality Act 2010

What is the Equality Act and when will it come into play?

The Equality Act 2010

The Equality Bill 2009 received royal assent on the 8th April 2010 creating the Equality Act 2010.

When will the Equality Act 2010 come into force?

The main provisions of the Equality Act 2010 are expected to come into force in October 2010 with other provisions not coming into force until April 2011.

What changes will be brought about by the Equality Act 2010?

The Equality Act 2010 Act brings disability, sex,race and other grounds of discrimination within one piece of legislation.

The Equality Act 2010 also makes various changes to the existing anti-discrimination laws.

In what ways will the Equality Act 2010 change the existing anti-discrimination laws?

The Equality Act 2010 will amend the existing anti-discrimination laws in relation to the following areas:

  • The objective justification test

  • Definition of disability

  • Disability related discrimination

  • Enquiries made prior to employment

  • Discrimination by association and perception

  • Transparency

  • Dual discrimination

The Objective Justification Test

Under the current legislation there exist different tests in order to establish an objective justification. The purpose of the Equality Act 2010 is to create a single objective justification test to replace the use of different tests.

Accordingly the employer or service provider will be required to show that its conduct is a proportionate means of achieving a legitimate aim.

What will be the consequences of this?

In relation to employment this will be a higher threshold than the test we currently see under the present law. This means that it will be much more difficult for employers to justify treatment which in essence is less favourable.

In relation to service providers under the new objective justification test they could potentially use a wider range of circumstances to justify their conduct than they now can under the present reasonable criterion used at the moment.

However, despite this the new test will be a proportionately harder test for service providers to prove than the current reasonable criterion test.

Definition of Disability

The Definition of disability will be broadened under the Equality Act 2010. This means that it will be simpler for all the parties involved such as employers, service providers and the individual suffering with the disability to understand.

Disability Related Discrimination

Under the Equality Act 2010 the widely criticised notion of disability related discrimination will be replaced by two new ways of claiming for disability discrimination – discrimination arising from disability and indirect discrimination.

Enquiries made prior to employment

Section 60 of the Equality Act 2010 will discourage employers from asking questions regarding a job applicant’s health unless the enquiries are for a particular permitted purpose. This includes asking questions regarding whether a specific applicant has a disability.

When will this section apply?

Section 60 will apply to all enquires in the following situations:

  • Enquires on an application form or a medical questionnaire

  • Enquires made during the interview itself

What purposes for these enquires are permitted under the Equality Act?

Under the Equality Act 2010 the permitted purposes for questions such as these will be as follows:

  • Establishing whether the applicant will be able to comply with the requirement of attending an interview

  • Establishing whether the employer will have to make reasonable adjustments for the individual to undergo an interview or any other assessments

  • Establishing whether the individual will be able to carry out a task which is intrinsic to the employment

  • Monitoring diversity in the applications

Discrimination by Association and Perception

Direct discrimination or harassment bases on association or perception are to be more clearly unlawful under the Equality Act 2010.

This not only applies to the employment sector but also areas such as services and education.

Transparency

Under the Equality Act 2010 there shall be greater transparency. This shall include an obligation on public authorities to report on their disability employment rate.

Dual Discrimination

Under the Equality Act 2010 an individual will be able to make a claim of discrimination on two separate grounds.  However, this is only limited to two grounds. This provision could apply for example to an individual who is being discriminated against due to both their race and due to the fact they are disabled.