Hello, discrimination arising out of a disability, can unfavourable treatment be justified? That's the question I put your expert barrister that Nick Singer.
Discrimination for something arising out of or as a consequence of a disability? Do you need to have a comparator in cases like these? This is the question I put to expert employment law barrister Nick Singer.
Discrimination for something arising out of or as a consequence of a disability? Section 15 of the Equality Act 2018. Discrimination arising out of a disability is this something difficult to prove or establish?
This is the question I put to expert employment law barrister Nick Singer.
Most employers are fully aware that they shouldn't ask applicants during the recruitment process and at interview if they have a disability or other health-related questions, except in a few very limited circumstances.
Under the Equality Act 2010 an employer has a duty to take make reasonable adjustments when a workplace feature or practice puts a worker or job applicant with a disability at a disadvantage.
A disabled person is defined as someone with a physical or mental impairment that has a ‘substantial’ and ‘long-term’ effect on their ability to do normal daily activities (Equality Act 2010).
The Equality Act 2010 places a duty on all employers to make ‘reasonable adjustments’ to accommodate the needs of their disabled employees and any disabled job applicants.
Employers are under a duty to make reasonable adjustments to the recruitment process in specific circumstances, to eliminate the disadvantages to a disabled job applicant.
The statutory questionnaire procedure was abolished when the government decided to remove the statutory equality questionnaire process as part of its ‘red tape’ consultation back in 2014
Discrimination arising from disability: What are examples of discrimination arising from a disability?
Discrimination arising from or as a consequence of a disability is a concept which often catches employers out at an employment tribunal and below is a few examples:
The Equality Act 2010 places an active duty on employers to make reasonable adjustments to accommodate the needs of disabled employees. This duty arises at any time before and during their the employment relationship, when the individual is put at a substantial disadvantage in comparison with individuals who are not disabled.
The Equality Act 2010 makes it illegal to treat an employee unfavourably for something arising out of a disability.
All aspects of employment are protected, it could be even before you've got a job, it could be after you've left your job. So if you're applying for a job in an interview and they ask odd questions like for example, are you up to date with technology must be difficult for someone at your age, you know technology moves on fast, that's a form of discrimination clearly based on the stereotype that older people don’t like technology. It could be at any time during your employment and as I say it could be even after what happens following your employment.
Objective Justifying in discrimination
The Equality Act 2010 states if an employer has a good enough reason for treating an employee unfairly because of their age, they may be able to justify the discriminating depending on the circumstances.
The Equality Act 2010 makes it unlawful to discriminate against all employees (including workers) if they have a disability.
Discrimination arising out of a disability is where an employer treats their employee unfavourably because of something arising in consequence of that employee’s disability and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim. In other words, the employer must demonstrate that the measures taken were "reasonably necessary" in order to achieve its aims – which could be a business need or health and safety reason.
A provision criterion or practice (PCP) is a term used by the legal profession mainly during discrimination cases in the employment tribunal.
The employer has a duty to make reasonable adjustments when they have knowledge about their employee's disability.