On 1 October, 2010, the Equality Act 2010 came into force, replacing most provisions of the Disability Discrimination Act, 1995, Catriona Hauser, the MS Legal Officer at the Disability Law Service, explains the protection it offers against discrimination.
The Equality Act (EA) has streamlined previous discrimination legislation so that people are now afforded the same level of protection whether they bring a claim for sex, race, religious or disability discrimination. It has also extended the provision of previous legislation so that people now have additional rights.
Ninety per cent of the EA has come into force. However, there are some elements of the EA that the government is currently consulting on. It is unclear at this stage whether these provisions will be enforced. The working provisions of the EA are set out in brief below.
Who is protected by the EA?
The EA has been designed to protect those who are defined as having a 'protected characteristic', which is defined as being one of the following:
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Disability
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Gender reassignment
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Pregnancy and maternity
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Race
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Religion or belief
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Sex
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Sexual orientation
As with the Disability Discrimination Act (DDA), a person is considered to be disabled under the EA from the moment they are diagnosed with MS. In addition, the EA has extended protection (in certain circumstances) to those who have an 'association' with a disabled person. Therefore a carer or partner may now be able to bring a claim for direct discrimination or harassment.
Those who are incorrectly perceived to have a 'protected characteristic' can also bring a claim under the EA. This means, for example, if an employer wrongly assumes a person to be disabled, that person may be able to bring a claim for discrimination. It is uncertain how this provision of the EA will work in practice and is anticipated to be the subject of much case law.
Who has to adhere to the EA?
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Employers
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Service providers - the definition of service provider is extremely wide and includes shops, commercial services, clubs and associations as well as public amenities such as parks, public buildings, leisure facilities and railway stations
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Transport providers (aeroplanes are exempt, although airports are included, as are any booking provisions for flights)
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Schools
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Further and Higher Education providers
Types of discrimination
Direct Discrimination
This is when a disabled person is treated less favourably as a result of their disability. For example: a woman is refused entry to a club because she is in a wheelchair and the doorman thinks she will not fit the club's 'image'.
Discrimination arising from a disability
This will arise when a disabled person is treated unfavourably, not because they have a disability but because of something connected with their disability. For example: a man is refused access to a restaurant because it is busy and the owner is concerned his wheelchair will get in the way.
Indirect discrimination
This will occur when policies or criteria place a disabled person at a disadvantage. For example: a local sports centre only allows people to use the swimming pool if they can swim a length of the pool. But a woman with MS can only swim one width before she needs to take a rest due to fatigue.
Failure to consider reasonable adjustments
A duty to consider reasonable adjustments will occur where a disabled person would be placed at a substantial
disadvantage compared to people who are not disabled if an adjustment is not made. Those who have responsibilities under the EA are expected to make adjustments to:
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Policies
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Procedures
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Provisions of auxiliary aids and services (a wheelchair ramp, for example)
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Physical features (although this provision does not apply to all transport providers - only rental cars and breakdown vehicles in certain circumstances)
Harassment
Under the EA there are three types of harassment:
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Harassment related to a 'protected characteristic'
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Sexual harassment
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Less favourable treatment because of a person's reaction to harassment. The conduct must have the purpose
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or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them
Victimisation
This provision protects those who have brought a complaint under the EA. As a result, an employer or service provider cannot victimise an individual for making an allegation or bringing a claim for disability discrimination. The EA also protects those who give evidence in support of another person's claim from victimisation.
For a disabled person to bring a claim for discrimination arising from a disability, indirect discrimination or failure to consider reasonable adjustments, the defendant must be aware that the person is disabled.
Pre-Employment Health Questionnaires
One of the most striking changes the EA has introduced is in relation to Pre-Employment Health Questionnaires. Employers are now prevented from asking an applicant about his or her health, including any disabilities, before offering a position or placing an applicant in a pool of potential employees unless it is for one of the following reasons:
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Establishing whether or not the applicant will be able to complete an assessment (such as a selection test) and whether reasonable adjustments are required in the selection process
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Establishing whether the applicant would be able to carry out a function that is inherent to the job
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Monitoring diversity
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Taking positive action, such as offering all disabled applicants an interview
This section is only enforceable by the Equality and Human Rights Commission (EHRC). Therefore, if an employer breaches this provision it does not give rise to an individual claim of discrimination. However, an employee or potential employee can use the breach as evidence to support a claim of discrimination.
How do I lodge a claim under the EA?
The time limits for bringing a claim and where your claim should be lodged will depend on the type of claim.
Employment claims
A claim for discrimination against an employer or former employermust be brought at an Employment Tribunal.
The claim must be lodged within three months less one day of the act of discrimination. These time limits are extremely strict and if your claim is lodged outside this time-frame, it is unlikely that the Employment Tribunal will accept your claim.
In order to make a claim to the Employment Tribunal, you must complete form Ell. This can be down loaded from the Employment Tribunal website at: www.employmenttribunals.gov.uk.
However, before a claim is lodged, you should first try and resolve matters by submitting a grievance to the employer.
Most employers have a grievance procedure, which you should follow.
In addition to the grievance, you should also consider sending the employer a Disability Questionnaire, which can be obtained from EHRC's website. The questionnaire must be issued within three months of the date of the discriminatory act, and the employer must respond within eight weeks of receiving it.
All other claims
All other claims for discrimination must be brought in the County Court. The claim must be lodged within six months less one day of the act of discrimination. The County Court is unlikely to accept your claim if you miss the deadline.
There is a 'Pre-Action Protocol' for all claims submitted to the County Court. This states that before submitting a claim you should write to the defendant setting out your complaint and give them an opportunity to resolve the matter.
You should generally allow them 14 days to respond.
It is usually advisable to send the defendant a discrimination questionnaire, a copy of which can be obtained from the EHRC's website. This must be issued within six months of the date of the discriminatory act. The employer must respond within eight weeks of receiving it.
An alternative to legal action is the EHRC's free conciliation service. If both parties agree to conciliation, the EHRC will arrange a meeting to discuss the issues and try to find a solution. If the parties cannot come to an agreement, the disabled person is still entitled to submit a claim to the Court. If both sides agree to conciliation through the EHRC, then the deadline for submitting the claim is extended to nine months minus one day.
Obtaining legal advice
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Before deciding whether to pursue a case for disability discrimination, you may want to talk it through with the MS Helpline. Call 0808 8008000 (Mon to Fri, 9am to 9pm, except bank holidays) or email helpline@mssociety.org.uk.
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If you think you may have suffered from discrimination, you may wish to contact the MS Legal Officer at the DisabilityLaw Service for further advice. The MS Legal Officer is funded by the MS Society to give advice on particular areas of law, including Community Care, Employment, Welfare Benefits and the Equality EA. The MS Legal Officer can be contacted on 020 7791 9826 or by emailing msadvice@dls.org.uk.
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Alternatively you may wish to seek advice from a local solicitor. Details of solicitors in your area can be obtained from the following organisations:
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Community Legal Advice www.communitylegaladvice.org.uk I 0845 345 4 345 The Law Society www.lawsociety.org.uk I 020 7242 1222
`A careror partner can now bring a claim for direct discrimination or harassment`
`A person is considered to be disabled under the Equality Act from the moment they are diagnosed with MS`
“From the MS Society`s MS Matters Magazine Issue 95 January/February 2011” http://www.mssociety.org.uk/ |
