The Equality Act 2010
Catherine Casserley
[email protected]
Definition of
disability
• Section 6 and Schedule 1
• (1) A person (P) has a disability if—
• (a) P has a physical or mental impairment,
and
• (b) the impairment has a substantial and
long-term adverse effect on P’s
• ability to carry out normal day-to-day activities
• Substantial – definition now in the Act (s.212(1) –
more than minor or trivial)
Schedule 1
Definition of
disability
• Replicates current provisions – long term; severe
disfigurement; recurring conditions; effect of medical
treatment; deemed disability; progressive conditions;
past disabilities
• Regulation making powers – draft regs published –
present exclusions (e.g. addiction to alcohol) remain
• Removal of list of capacities presently in Schedule 1
paragraph 4 – but see draft Guidance
• May make a difference to those with mental health
issues
The Act
• Makes it unlawful to discriminate in a
number of different life areas
• Employment and occupation, services,
public functions,
• Associations (clubs) education,
premises
• Special provision for transport
(regulations)
4 forms of
discrimination
• Direct – s.13
• (1) A person (A) discriminates against
another (B) if, because of a protected
characteristic, A treats B less favourably
than A treats or would treat others
s.15
• London Borough of Lewisham v Malcolm [2008]
UKHL 43
• Section 15: Discrimination arising from
disability
• (1) A person (A) discriminates against a
disabled person (B) if—
• (a) A treats B unfavourably because of
something arising in consequence of B’s
disability
• (b) A cannot show that the treatment is a
proportionate means of achieving a legitimate
aim.
Discrimination
arising from
disability
• (2) Subsection (1) 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.
indirect
discrimination
• Employment framework directive (and draft
services directive)
• Common definition of indirect discrimination –
section 19
indirect
discrimination
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Indirect discrimination
(1) A person (A) discriminates against another (B) if A applies to B a
provision, criterion or practice which is discriminatory in relation to a
relevant protected characteristic of B’s.
(2) For the purposes of subsection (1), a provision, criterion or practice
is discriminatory in relation to a relevant protected characteristic of B’s
if—
(a) A applies, or would apply, it to persons with whom B does not share
the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic
at a particular disadvantage when compared with persons with whom B
does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a
legitimate aim
indirect
discrimination
• Comparator – s.23
• 23 Comparison by reference to
circumstances
• (1) On a comparison of cases for the
purposes of section 13, 14, or 19 there
must be no material difference between
the circumstances relating to each case
Duty to make
reasonable
adjustments
• Common basic definition, section 20 with detail in schedules
(Schedule 3 – work; Schedule 2 – services and functions;
Schedule 4 – premises; Schedule 13 – education; Schedule 17
- associations)
• The first requirement is a requirement, where a provision,
criterion or practice of A’s puts a disabled person at a
substantial disadvantage in relation to a relevant matter in
comparison with persons who are not disabled, to take such
steps as it is reasonable to have to take to avoid the
disadvantage.
• The second requirement is a requirement, where a physical
feature puts a disabled person at a substantial disadvantage in
relation to a relevant matter in comparison with persons who
are not disabled, to take such steps as it is reasonable to have
to take to avoid the disadvantage.
Duty to make
reasonable
adjustments
• The third requirement is a requirement,
where a disabled person would, but for
the provision of an auxiliary aid, be put
at a substantial disadvantage in relation
to a relevant matter in comparison with
persons who are not disabled, to take
such steps as it is reasonable to have
to take to provide the auxiliary aid.
Duty to make
reasonable
adjustments
• Cannot make a disabled person pay for
reasonable adjustments (s.20(7);
• Where first or third requirement relates to
provision of information, the steps which it is
reasonable to have to take include steps for
ensuring that the information is provided in
an accessible format
• In the second requirement, a reference to
avoiding a substantial disadvantage includes
a ref to removing, altering or providing a
reasonable means of avoiding a feature
Reasonable
adjustments –
key changes
• Common threshold (substantial
disadvantage)
• Pre-16 Education – obligation to provide
auxiliary aids and services
• Premises – new obligation in relation to
physical features and common parts (s.36
and sched 4 para 5) though can make
disabled person pay for the adjustment
Reasonable
adjustments –
Goods and
services
• Goods, facilities services and functions – Schedule 2
• 2 (1) A must comply with the first, second and third
requirements.
• (2) For the purposes of this paragraph, the reference
in section 20(3), (4) or (5) to a disabled person is to
disabled persons generally.
• (3) Section 20 has effect as if, in subsection (4), for
“to avoid the disadvantage” there were substituted—
• “(a) to avoid the disadvantage, or
• (b) to adopt a reasonable alternative method of
providing the service or exercising the function.”
Premises
• Physical features remain excluded
from scope (Schedule 4 para 2 and 8)
so no obligation to e.g add grabrails,
though some exceptions e.g. taps,
colour of walls
• Conditions remain e.g. must make a
request to take steps to avoid the
disadvantage or provide the auxiliary
aid
• New obligation in relation to common
parts
Premises –
common parts –
eg hallway para 5
• Where A is a tenant of the premises, a
unit-holder, or is otherwise entitled to
occupy the premises, and uses or
intends to use the premises as the
person’s only or main home the
controller of premises must comply with
the second requirement in relation to
the common parts
Premises –
common parts
• There must be a request, and the adjustment
must remove the disadvantage
• Controller must consult those likely to be
affected (though no obligation to take into
account purely prejudicial views)
• If controller decides to take steps, must make
an agreement setting out responsibilities etc
• Will always be reasonable to require the dp
to pay for cost of works, cost of maintaining
and cost of restoration
• This is not yet in force and no date yet for
bringing it into force
Goods facilities
services and
functions
• What it is that is unlawful:
• Provision of services, etc. (s.29)
• (1) A person (a “service-provider”) concerned with the provision
of a service to the public or a section of the public (for payment
or not) must not discriminate against a person requiring the
service by not providing the person with the service.
• (2) A service-provider (A) must not, in providing the service,
discriminate against a person (B)—
• (a) as to the terms on which A provides the service to B;
• (b) by terminating the provision of the service to B;
• (c) by subjecting B to any other detriment.
• (3) A service-provider must not, in relation to the provision of the
service, harass—
• (a) a person requiring the service, or
• (b) a person to whom the service-provider provides the service
(does not apply to sexual orientation or religion and belief)
Goods facilities
services
functions
• Victimisation also prohibited
• (s.29(6))A person must not, in the exercise of
a public function that is not the provision of a
service to the public or a section of the public,
do anything that constitutes discrimination,
harassment or victimisation
• Exclusions remain e.g. certain transport
modes in respect of disability; judicial
functions etc – see Schedule 3
Enforcement
• Enforcement in county court (s.114), as now,
though no obligation for it to be a specific
appointed county court (so far)
• Judicial review not excluded
• Discretion to appoint assessors must be
exercised unless the judge is satisfied that
there are good reasons for not doing so
• Practice direction re: informing the EHRC
may be amended – not clear
Codes and
guidance
• Implementation: bulk in force in October 2010
• Guidance on definition of disability Codes of practice
– services and employment – must be taken into
account where relevant
Cases
• Roads v Central Trains Ltd [2004] EWCA Civ
1541
• Ross v Ryanair and Stansted Airport Ltd
[2004] EWCA Civ 1751
• Policy of the Act is not a minimalist one
• Finnigan
• Akerman-Livingstone
Allen v Royal
Bank of Scotland
Allen v Royal
Bank of Scotland
- outcome
Any
Questions??