Q: Will disability discrimination continue under the new Equality Act?
A: Yes. There will, however, be some amendments and additions to existing rights under the Disability Discrimination Act. Perhaps the main change is that there will be a slightly different test of what ‘disability’ means. When the new law comes in, it will be easier for someone to show that they are having difficulty carrying out their day-to-day activities, and therefore that they are disabled in accordance with the new Act. Currently, employees have to show that day to day their disability affects one or more of a specific list of capacities e.g. manual dexterity, continence, mobility etc. That list will no longer apply under the new Act.
Q: Are there any other significant changes?
A:
Indirect discrimination:
The Act introduces a new right protecting disabled people from ‘indirect discrimination’. This is where a policy or practice is applied in the same way to everyone, but it puts disabled people at a particular disadvantage. In common with other current discrimination legislation, indirect discrimination can be objectively justified.
An example of indirect disability discrimination might be where an employer brings in a new shift pattern which means that everyone has to work fewer, but longer days. If an employee has a disability that means he or she is exhausted after two long days of working, the new shift pattern puts him/her and other people who have the same disability at a disadvantage. This would amount to indirect discrimination if the employer can’t justify the new shift pattern.
Discrimination arising from Disability:
Another significant change to the current law is that “disability related discrimination” is being replaced by a new concept called “discrimination arising from disability”. This applies quite widely and can include scenarios where people are mistakenly perceived to be disabled or where a person is treated less favourably because they are linked or associated with a disabled person. This new right also applies to situations where an employer is aware of the employee’s disability and treats him/her unfairly because of something that results from that disability e.g. if an employee is dismissed for being absent on long term sick leave due to a disability, this is likely to amount to discrimination arising from disability. Such behaviour will be unlawful discrimination unless the action can be objectively justified..
Harassment:
Disability harassment is unwanted behaviour related to disability that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. This is a new addition to disability discrimination law. An example might be where employees mimic another who suffers from a disability.
Victimisation:
The right not to be victimised because an employee has made a complaint about discrimination or harassment under the Equality Act, or helped someone else to make a complaint, or because the employer thinks that they are doing or may do these things has been enhanced so that it can apply whether or not the person being victimised is disabled. Taking the example above further, if a non-disabled member of staff who helped the disabled person to make a complaint was, as a consequence of this assistance, ostracised by their manager, he or she would be able to claim victimisation under the Equality Act.
Q: Anything else I should be aware of?
A: Much of the current Disability Discrimination Act will remain intact. For instance the requirement to consider and implement reasonable adjustments to a workplace or working practices to facilitate a disabled employee, will continue.
One thing that employers should be aware of is that it will generally be unlawful to ask questions about health or disability before offering employees a job or before including them in a pool of people to be offered a job when a vacancy arises.