The Equality Act and Disabled Employees

This article first appeared in People Management, September 2010

Of all the discrimination strands affected by the Equality Act 2010, changes to protection for disabled people are set to be the most significant for employers. Particularly noteworthy are the provisions, protecting employees from discrimination “arising from” disability, that come into force on 1 October.

The Disability Discrimination Act 1995 (which will be repealed once the new act is in force) supposedly protects employees from discrimination for a reason “relating to” their disability. However, since the decision in L B Lewisham v Malcolm (2008 IRLR 700 HL), disabled employees have had to prove that they have been treated less favourably than a non-disabled employee who is otherwise in the same circumstances.

Current position

The Disability Discrimination Act 1995 (“DDA”) (which will be repealed upon the new Act coming into force) currently enables employees to bring disability discrimination claims for treatment for a reason relating to, or on the grounds of, the employee’s own disability. There is no protection for employees who are not themselves disabled but are less favourably treated owing to their association with a disabled person.

However, the European Court of Justice recently ruled in the Coleman case (Coleman v Attridge Law and Law C-303/06 (ECJ)) that the European Equal Treatment Framework Directive prohibits direct disability discrimination and harassment of a non-disabled person who is the primary carer of a disabled child. The Employment Appeal Tribunal subsequently confirmed that the DDA should be similarly interpreted, notwithstanding the more restrictive wording within that Act. Mrs Coleman was permitted to proceed with her claim that she had been discriminated against and harassed by her employer due to her being the primary carer of her disabled son.

Changes introduced by the Equality Act 2010

Such “associative discrimination” is already prohibited in certain strands of UK discrimination law (race, religion or belief and sexual orientation) but not others (age, sex, gender reassignment or disability). One of the key aims of the Equality Act 2010 is to harmonise the different strands of existing legislation wherever possible.

Under the new Act, if less favourable treatment is because of any of the above characteristics, it will be irrelevant if the complainant does not possess the “protected characteristic” themselves. The treatment complained of can be based on the protected characteristic of a third party.

The protection against associative discrimination also applies to harassment. Where an employee is subjected to unwanted conduct which has the purpose or effect of violating an employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment and such conduct is “related to” a protected characteristic, the complainant is not required to have that characteristic themselves. So, employees who hear jokes about disabled people in the workplace do not have to be disabled themselves to take offense and bring a harassment claim, albeit any injury to feelings award may be lower than if the complainant was them self disabled.

In the context of disability discrimination, this change merely formalises the Coleman decision and is likely to primarily benefit employees who care for disabled people. However, the new Act also extends the concept of associative discrimination to other protected characteristics not previously covered. In particular, we anticipate those who care for elderly people will equally benefit from this extension.

Employers should be aware of the wider protection against discrimination employees will now enjoy. Employees with caring responsibilities for the disabled and elderly already have rights to request flexible working and to reasonable time off to deal with emergencies in respect of dependents. In addition to heeding these rights, to avoid age and/or disability discrimination claims employers must now ensure that such employees are not treated less favourably because of their caring responsibilities. Employers who may not be aware of their employee’s caring responsibilities should encourage employees to provide such information from the outset of employment and ensure that open lines of communication are maintained so they can keep abreast of the extent of the employee’s caring responsibilities, which may change over time.

Author:
Eleanor Scholey, Solicitor in the Employment Practice

25/11/10