The Equality Act one year on

1. The Equality Act one year on Professor Diana Kloss Employment judge

2. Equality Act 2010 • Most of the Act came into force on 1 October 2010 • The Government has made clear that some of it will not be implemented, eg the provisions about socio-economic equality, duty to publish details about pay, dual characteristic discrimination • Some sections were brought into force on 5 April 2011 eg public sector equality duty, positive action in recruitment and promotion

3. The protected characteristics • Age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation

4. Supporting statutory instruments and Codes • The provisions about excluded conditions eg addiction to a substance were re-enacted in Equality Act 2010 (Disability) Regulations 2010 • The EHRC has published a Code of Practice on Employment which came into force on 6 April 2011 • Revised Guidance on the Definition of Disability was brought into force on 1 May 2011 • The default retirement age was abolished effectively from 5 April 2011 after which employers could not issue a notification of compulsory retirement

5. Disability discrimination • The definition of disability remains the same, except that the list of capacities (mobility, manual dexterity, memory etc) has been removed • The revised Guidance on the definition (2011) has an Appendix which gives examples eg getting dressed, preparing a meal, walking, using transport, reading and understanding material, persistent difficulty in taking part in normal social interaction or forming social relationships.

6. Volunteers • Voluntary unpaid workers are not protected by the Equality Act • X v Mid Sussex CAB (Court of Appeal)

7. Direct discrimination • A person (A) discriminates against another (B) if, BECAUSE OF a protected characteristic, A treats B less favourably than B treats or would treat others • If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim • All other kinds of direct discrimination cannot be justified

8. Direct discrimination includes associative discrimination and perceptive discrimination, eg • a man refused promotion because his wife is black • a woman denied a job because she has a disabled child • a heterosexual woman who wears mannish clothes denied a job because she is perceived to be gay

9. Pregnancy discrimination • A person (A) discriminates against a woman if, in the protected period in relation to a pregnancy OF HERS A treats her UNFAVOURABLY because of the pregnancy or any illness suffered by her as a result of it • NB no need for a comparator, but associative discrimination excluded

10. Disability-related discrimination • A person (A) discriminates against a disabled person (B) if A treats B UNFAVOURABLY because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim • NB no need for a comparator • eg dismissing a disabled employee because of sickness absence, or poor performance, rejecting a disabled job applicant because of fears that he will create a health and safety risk for other employees • This does not apply if A shows that A did not know and could not reasonably have been expected to know that B had the disability

11. Note that disability-related discrimination can be justified, but that there is a new test of justification: proportionate means of achieving a legitimate aim • Legitimate aims are, for example, protecting the workforce against health and safety risks, and promoting business efficiency. Employers are not required to continue to employ disabled people with unsatisfactory attendance and/or performance, which reasonable adjustments have failed to cure

12. The duty of reasonable adjustment • This is expanded. It covers: • Adjustments to a provision criterion or practice that puts the disabled person at a disadvantage eg attendance management procedure • Adjustments to physical features • A duty to provide auxiliary aids (including auxiliary services) • The disabled person must not be charged for adjustments

13. The list of suggested adjustments has been taken out of the statute and is now in the Code of Practice, but it is similar • The Act continues to provide that the employer is not liable unless he knows of the disability and that the person is likely to be at a disadvantage because of it • The Act no longer contains a list of factors that must be taken into account in deciding whether an adjustment is reasonably required, but tribunals continue to apply similar tests and the Code of Practice lists relevant factors, basically practicability, effectiveness and cost

14. Pre-employment health screening • Section 60 provides that health questions (including questions about sickness absence) should not be asked before an offer of work is made or the job applicant is included in a pool from whom the employer intends to offer work • The offer can be conditional on medical clearance and health questions can then be asked. There is no limit in the Equality Act as to the extent of the questions, but Madan and Williams argue that excessive questions are a breach of the Data Protection Act

15. Exceptions • The principal exceptions are: • Questions necessary to establish whether adjustments need to be made to the selection process, eg interview, written test • Questions necessary to establish whether the job applicant will be able to carry out a FUNCTION INTRINSIC to the work (after reasonable adjustments have been made), eg work at a height for a scaffolder, fitness tests for police, firefighters

16. There are two sanctions for breach of section 60: • The EHRC can take the employer to the county court • If a job applicant is rejected and claims disability discrimination in an employment tribunal the tribunal will assume that the reason for the rejection is the disability unless the employer proves to the contrary

17. Even if there is no breach of section 60 the employer must not unlawfully discriminate because of a disability, but in such a case the burden of proof will be on the claimant

18. Knowledge of a disability when OH knows? • The Code of Practice is slightly watered down. It says that if OH knows about a disability “the employer will not USUALLY be able to claim that they do not know of it”. It is “assumed” that OH has shared it with the employer, but ……. • “The Act does not prevent a disabled person keeping a disability confidential from an employer” • The answer may be that OH should ask in every case whether the worker is willing for sufficient information to be communicated to the manager and make a note if he is not, warning him that if nothing is disclosed there is no duty of reasonable adjustment • If nothing is disclosed at the employee’s request, in my view, the employer is not deemed to know that the employee may have a disability and this is supported by Hartman v South Essex Mental Health Trust, but that is a personal injury case

19. Liability of OH • A person (A) contravenes the Act if he is an employee or agent and he does something for which the employer or principal is potentially vicariously liable • Failure to consider reasonable adjustments could be such an act • NB employment tribunal case in 2011 where an employer was held vicariously liable for disability harassment by their OH physician who phoned the worker’s mother and GP without the worker’s consent to tell them that he had been dismissed for gross misconduct, because he was afraid that the worker, who was severely depressed, might commit suicide • This was held to violate the worker’s dignity and to create a “degrading, humiliating or offensive environment” • Gomez v Glaxo Smith Kline

20. Age discrimination • The main change is that the default retirement age has been abolished in respect of a worker who reaches 65 on or after 1 October 2011 (with Byzantine transitional provisions!) • This does NOT mean that employers are not permitted to force employees to retire when they reach an age fixed by the employer (ACAS calls them Employer Retirement Ages) • What it means is that the employer must be able to justify fixing a compulsory retirement age as a proportionate means of achieving a legitimate aim

21. What are legitimate aims? • Seldon v Clarkson, Wright and Jakes (on appeal to the Supreme Court) • Making way for younger employees to achieve promotion • Facilitating workforce planning • Limiting the need for employees to be expelled by way of performance management, thus contributing to a supportive and congenial culture

22. European Court cases • Wolf v Stadt Frankfurt • Petersen case • Fuchs and Kohler v Land Hessen • Prigge v Deutsche Lufthansa • But these are all cases about public sector employment

23. Employment Code of Practice • An employer believes that memory deteriorates with age and does not consider a 60-year-old for promotion. This is likely to amount to direct discrimination because based on a stereotype

24. An employer introduces regular fitness testing only for police officers over 50 • Is it justified? • Why not test all police officers if fitness is needed for the job? • What happens if an officer fails? • Immediate dismissal would be disproportionate if fitness can be improved eg by losing weight