Indirect discrimination, reasonable accommodation, positive action and victimisation

1. Indirect discrimination, reasonable accommodation, positive action and victimisation Barry Fitzpatrick Equality Law Consultant www.barryfitzpatrickconsulting.co.uk 15 May 2006

2. Indirect discrimination • indirect discrimination is a more complicated concept • it involves a practice or policy which does not initially appear to be discriminatory but turns out to be so once it is put into practice • it must place disabled people ‘at a particular disadvantage’ compared to others • unlike DD, it is open to objective justification

3. Indirect discrimination • Art 2(2)(b) REOD/FEED: indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:

4. Indirect Discrimination • (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary • previously sex equality test was ‘disproportionate effect’ – now less statistical approach – ‘judicial notice’ of ‘particular disadvantage’ or expert evidence

5. Indirect Discrimination • X introduces policy that all employees must have driving licences. This is on grounds of ‘labour flexibility’. A is employed as an IT technician. Because he is in a wheelchair, he has not attempted to gain a driving licence. A’s job does not involve any need for mobility, although some IT technicians are required to service customers.

6. Indirect Discrimination • Is it a ‘legitimate aim’ to insist that every employee has a driving licence.Even so, is it ‘appropriate’ and ‘necessary’ means to insist on this criterion?

7. Indirect Discrimination • C has a congenital heart disease. She has a doctor’s appointment once every month and has to take 2 days’ leave every month. As a result, she is assessed as ‘satisfactory’ in her staff appraisal despite being otherwise an exemplary employee. She loses out on significant performance related bonuses.

8. Indirect Discrimination • D is wheel chair bound. She wants to park her adapted car close to her place of work. The company states that only senior employees can park in the staff car park. She must park in a public car park 500 metres from her workplace.

9. Reasonable accommodation • reasonable accommodation is concerned with the removal of barriers to the full participation of disabled people in employment and society more generally • RA can be specific to a particular case or more general or ‘anticipatory’ • balance between degree of access and ‘disproportionate’ burden on E

10. Reasonable accommodation • FEED, Art 3.2(b): (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:

11. Reasonable accommodation • (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or (ii) as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to

12. Reasonable accommodation eliminate disadvantages entailed by such provision, criterion or practice.    Art 5: In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in    

13. Reasonable accommodation employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State.  

14. Reasonable accommodation application form: An application form includes the statement ‘Please let us know if you require any reasonable adjustments, due to disability, to enable you to attend an interview, or which you wish us to take into account when considering your application. Reasonable adjustments are things like sign language interpreters, altering the time of the interview, or making the interview room accessible for you. If you would like to discuss your disability requirements further, please contact the Human Resources Manager’.

15. Reasonable accommodation A call centre normally employs supervisors on a full-time basis. A woman with sickle cell anaemia applies for a job as a supervisor. Because of pain and fatigue relating to her condition she asks to be able to do the job on a part-time basis. The call centre agrees. The hours of work which are offered amount to an adjustment to a working practice. This is likely to be a reasonable adjustment to the call centre’s working practice.

16. Reasonable accommodation recruitment: • A hearing impaired candidate informs a potential employer that he can lip read but will need to be able to see the interviewer’s face clearly. The interviewer ensures that her face is well lit, that she faces the applicant when speaking, that she speaks clearly and is prepared to repeat questions if the candidate does not understand her. These are likely to be reasonable adjustments for the employer to make.

17. Reasonable accommodation recruitment: • A job applicant does not tell an employer in advance that she uses a wheelchair and the employer does not know of her disability. On arriving for the interview she discovers that the room is not accessible. Although the employer could not have been expected to make the necessary changes in advance, it would be a reasonable adjustment to hold the interview in an alternative, accessible room

18. Reasonable accommodation if one was available without too much disruption or cost. Alternatively, it might be a reasonable adjustment to reschedule the interview if this was practicable.

19. Reasonable accommodation aptitude or other tests: An employer sets a word processing test for candidates for a position as administrative officer. A person with repetitive strain injury (RSI) takes the test using voice-activated software, as this is how she would carry out the job if she were appointed. Permitting her to take the test in this way is likely to be a reasonable adjustment for the employer to make.

20. Reasonable accommodation aptitude or other tests: An employer sets candidates a short oral test. An applicant is disabled by a severe stammer, but only under stress. It is likely to be a reasonable adjustment to allow her more time to complete the test. Alternatively, it may be a reasonable adjustment to give the test in written form instead – though not if excellent oral communication skills are necessary for the job and assessing those skills was the purpose of the test.

21. Reasonable accommodation working conditions: An employer makes structural or other physical changes such as widening a doorway, providing a ramp or moving furniture for a wheelchair user; relocates light switches, door handles or shelves for someone who has difficulty in reaching; or provides appropriate contrast in decor to help the safe mobility of a visually impaired person.

22. Reasonable accommodation working conditions: An employer reallocates minor or subsidiary duties to another employee as a disabled person has difficulty doing them because of his disability. For example, the job involves occasionally going onto the open roof of a building but the employer transfers this work away from an employee whose disability involves severe vertigo.

23. Reasonable accommodation working conditions: An employer should consider whether a suitable alternative post is available for an employee who becomes disabled (or whose disability worsens), where no reasonable adjustment would enable the employee to continue doing the current job. Such a post might also involve retraining or other reasonable adjustments such as equipment for the new post.

24. Reasonable accommodation working conditions: An employer relocates the work station of a newly disabled employee (who now uses a wheelchair) from an inaccessible third floor office to an accessible one on the ground floor. It would be reasonable to move his place of work to other premises of the same employer if the first building is inaccessible.

25. Reasonable accommodation working conditions: A woman who is deafblind is given a new job with her employer in an unfamiliar part of the building. The employer (i) arranges facilities for her guide dog in the new area, (ii) arranges for her new instructions to be in Braille and (iii) trains colleagues to communicate with her, and provides disability equality training to all staff.

26. Reasonable accommodation working conditions: A disabled employee has been absent from work as a result of depression. Neither the employee nor his doctor is able to suggest any adjustments that could be made. Nevertheless the employer should still consider whether any adjustments, such as working from home for a time, would be reasonable.

27. Practical implications • both ID & RA involve a more proactive consideration of the structures of workplaces and also working practices • effectively it is necessary to undertake an ‘equality audit’ of ‘apparently neutral’ policies and practices to establish ‘particular disadvantages’ and ‘reasonable accommodation’

28. Positive action Art 7 FEED: 1. With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds referred to in Article 1.

29. Positive action 2. With regard to disabled persons, the principle of equal treatment shall be without prejudice to the right of Member States to maintain or adopt provisions on the protection of health and safety at work or to measures aimed at creating or maintaining provisions or facilities for safeguarding or promoting their integration into the working environment.

30. Positive action X employs very few disabled people. It includes a ‘welcoming statement’ in all its adverts stating that it particularly welcomes applications from disabled people. It also arranges disability-specific training programmes in which it applies various forms of ‘reasonable accommodation’ to show trainees how they can be accommodated.

31. Positive action Two applicants for a secretarial job are equally qualified for the job. Because X does not employ any blind workers, it decides to give the job to a blind applicant. It agrees to provide voice activated software for his use.

32. Positive action Five candidates are considered for promotion. Four meet the required standard in various aptitude tests. The fifth candidate, A, has learning difficulties. Even though the tests have been adapted to accommodate her, she does not meet the standard. X decides that, because A is within 20% of the required standard, she will be treated as having met it.

33. Victimisation Art 11 FEED: Member States shall introduce into their national legal systems such measures as are necessary to protect employees against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.

34. Victimisation • There is frequently ‘horseplay’ between male workers during breaks, particularly affecting a blind worker, James • James decides to inform his manager that he thinks that the ‘horseplay’ is directed against him – Anna, his colleague, accompanies him and agrees with James that the horseplay is harassment against him

35. Victimisation • James and Anna now find that their work is constantly criticised by their manager • Each receives an unsatisfactory staff appraisal. James is moved to another part of the workplace but reasonable accommodation previously in place no longer applies