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Disability
Framework Directive on Equal Treatment in Employment & Occupation
(2000/78/EC)
- Measures to combat discrimination of disability ‘with a view to putting into effect
in the Member States the principle of equal treatment
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o Obliged to take steps to ensure disabled have access to, participate in,
have advancements in, and undergo training
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Positive discrimination in favour of disabled is permitted (s159 & s13(3))
- Archibald v Fife Council
o HofL held DDA permitted or obliged employers to treat disabled more
favourably
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The Disability Discrimination Act 1995 (DDA)
- Did not include indirect discrimination
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- Nor, since 2005, is need for proof where diagnosis of HIV, Cancer or MS
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- Strict use of comparator in Lewisham LBC v Malcolm caused difficulties
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- Applied regardless of whether person met DDA definition during that period
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- This provision is preserved for the purposes of the Equality Act 2010
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aimed to ‘standardise existing definitions &
concepts unless there [was] an overriding reason not to’
 Was always going to create challenges eg
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For disability (DDA) &
leg
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Sex Discrimination Act 1975 &
Race Relations Act 1976 (RRA)
- Extended protection against indirect discrimination to disability
- Introduced “discrimination arising from disability” concept to replace protection
under previous legislation lost as a result of a legal judgment
- Applying detriment model to victimisation protection
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More difficult for disabled to be unfairly screened out when applying for jobs,
by restricting when employers can ask applicants about disability or health
 Section 60 - effectively can only ask when short listed or offering job
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o S60’s success reliant on interpretation of ‘intrinsic to job
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Definition - Section 6 Equality Act 2010
DDA covered someone previously disabled but no longer is
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- Almost 1/5 of disability discrimination cases fail because of the definition
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- Suggestions made to remove substantial long term element when changing
from DDA to EqA but did not happen
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- Strict definition = focus on impairment rather than social disadvantage
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 College of Ripon and York St John v Hobbs [2002]
o Vague as to ‘physical or mental impairment’ but tribunal still held
claimant to be disabled
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- For Employment Tribunal, not doctors, to determine whether impairment is a
‘disability’ under the Equality Act 2010
- However, medical evidence normally necessary or crucial in deciding
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Substantial and
- Means ‘more than minor or trivial’ (Sec 212(1)) a notably low level of proof
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OCD issues
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 Consider ways employee can reasonably limit impairment
 Consider environment: temperature, lighting, time of day, stress
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Long-term adverse effect on his ability to carry out
- 12 months or ‘likely’ to extend to 12 months (Sch 1 Part 1)
 Can be combination e
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8 months anxiety, 3 months depression
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Playing an instrument
- Goodwin v The Patent Office
 EAT held tribunal must look at evidence relating to above 4 conditions
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- Law Hospital NHS Trust v Rush [2001]
 Not whether can still do their job but affecting day-to-day tasks
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- Was an old finite list of 8 different normal day-to-day activities to fit:
 Mobility
 Manual dexterity
 Physical co-ordination
 Continence
 Ability to lift, carry or otherwise more everyday objects
 Speech, hearing and eyesight
 Memory or ability to concentrate, learn or understand
 Perception of risk of physical danger
- However, this list was removed from the Equality Act 2010
- Widening ambit to demonstrate impact on normal day-to-day activities
- Claimants no longer have to ‘shoe-horn’ their condition into 1 of the 8
HM Government Office for Disability Issues Guidance on Disability Definition
- Important not to consider any of the 4 above elements in isolation
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- Eligibility to disability related schemes can assist claimants in meeting the
definition of disability e
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Blue Badge parking scheme
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burns
- ‘Effect of medical treatment’ – impairment treated as having adverse effect on
day-to-day activities if measures taken to treat it ‘but for’ those measures
would have substantial adverse effect on person’s ability to carry out normal
day-to-day activities
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o Medical treatment:
o Richmond Adult Community v McDougall [2008]
 Test is whether likely to recur (sch1 para 2(2)) past 12 months,
assessed on evidence at the time (not in future)
o SCA Packaging Ltd v Boyle [2009]
 Had managed her vocal nodes condition for 9 years

Test is whether, without treatment, condition is ‘likely’ to have
‘substantial adverse effect
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dementia
o Substantial adverse effect to day-to-day activities before it has effect
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- Power v Panasonic [2005]
 Deciding whether ‘disabled’ under DDA, considered whether
alcoholism caused depression or depression caused to alcoholism
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HM Government Office for Disability Issues Guidance on Disability Definition
- Cause of impairment not important Eg
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Equality Act 2010 (Disability) Regulations 2010 (which revoked the Disability
Discrimination (Meaning of Disability Regulations 1996)
 Other conditions have been declared not to be disabilities:
◦ Substance addictions
◦ ‘Pyromania’: deliberate setting of fires
◦ Kleptomania: stealing
◦ Exhibitionism: display genitals to an unsuspecting stranger”
◦ Hay fever
◦ Tattoos & body piercings
HM Government Office for Disability Issues Guidance on Disability Definition
 Eg
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Prohibited Conduct:
Direct Discrimination s13
- Only introduced to DDA in 2004 in result of Equality Directive
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 High Quality Lifestyles v Watts (DDA)
 EqA’s approach to Direct is same as DDA
S13 includes Association & Perception
- Perception or association of disability protection finds more limited protection
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 Argued successfully the Framework Directive offered broad protection
to discrimination on ground of disability so as to include association
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Does not extend reasonable adjustments to those not disabled though
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Indirect Discrimination s19
- Introduced indirect discrimination to disability for the first time in the UK
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All of the usual AND
S15 Discrimination for Disability
- New to Equality Act due to problems with old law
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o Easier to claim as no comparators, merely prove ‘unfavourable’
o Not defined but guidance suggests ‘being put at a disadvantage’
 Reverses London Borough of Lewisham v Malcolm [2008] which
required treatment ‘less favourable’ when compared with comparator
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Once Employer has knowledge of disability…
Duty to make adjustments (S20-22 & Schedule 8)
Discrimination includes employer’s failure to make reasonable adjustments
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- Consistent with the Employment Equality Directive & CRPD
“Duty to respond to disadvantage experienced by individual & take account of
particular circumstances of case & specific person
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- Case-by-case basis provides significant protection
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- Is only protected characteristic carrying this duty
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Note ‘substantial’ (more than minor or trivial) disadvantage sets a low level of proof
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Where PCP puts disabled at a substantial disadvantage in relation to a
relevant matter compared with persons not disabled, must take reasonable
steps to avoid this
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Where a physical feature puts disabled at a substantial disadvantage in
relation to a relevant matter compared with persons not disabled, must take
reasonable steps to avoid this
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Where, but for the provision of an auxiliary aid, a disabled person would
be at a substantial disadvantage in relation to a relevant matter compared
with persons not disabled, must take reasonable steps to avoid this
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Special software, Braille readers, special chairs etc
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- No obligation if employee didn’t know, or could not have been reasonably
expected to know, of the disability
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o Although might reasonably been expected to know, could not
reasonably been expected to know it would cause substantial
disadvantage compared to non-disabled
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Whether sufficient arrangements in light of knowledge is a question for tribunal
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 DDA (now EqA) requires tribunal to measure extent of duty against:
o Assumed knowledge &
o Likelihood of causing substantial disadvantage
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Not making the adjustments wasn’t unlawful
 Garrett v Lidl
o Not unreasonable that achievements could be best achieved in
another store, particularly in regard of mobility clause
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 Eg
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S21 – Discrimination if employer fails to comply
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- Archibald v Fife Council
◦ “The making of adjustments is not an end in itself
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Argued the EqA’s defences are inconsistent with CRPD
- Lack of knowledge
 Eg
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g
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- Argue claimant doesn't fit the definition
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o Likened to cross-examination of rape victims
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No longer free to bring a claim in Tribunal as of recent changes to system
 Type B – Discrimination (£250)
 Hearing fee - £950
 Total up to £1,200
 Ultimately not fully protected
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defences & reasonable adjustments
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S15 & s60
Discrimination by perception is likely to pose problems & no guidance given
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