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Disability Discrimination Act 1995
Code of Practice
Disability Rights
Commission London: TSO
The information contained in this publication is believed to be correct at the time of manufacture. Whilst care has been taken to ensure that the information is accurate, the publisher can accept no responsibility for any errors or omissions or for changes to the details given. First published 2004 ISBN 0 11 703419 3 Printed in the United Kingdom for The Stationery Office Foreword This Code of Practice explains how disabled people are protected from discrimination if they are in employment, if they are seeking employment, or if they are involved in a range of occupations. It is one of two Codes of Practice which have been prepared and issued by the Disability Rights Commission to give practical guidance on the operation of Part 2 of the Disability Discrimination Act 1995. The other such Code relates to discrimination by trade organisations and qualifications bodies. It is pleasing to note that rates of employment among disabled people have risen in recent years as more and more employers have adopted better employment practices. Nevertheless, it is still the case that only about half of those disabled people who are of working age are actually in employment – although many more want to work and are capable of doing so. Although discrimination against disabled people in employment has been outlawed since the Disability Discrimination Act came into force in 1996, the law has continued to evolve. Not only have the original provisions of the Act been subject to judicial interpretation, but major changes have been made to the legislation itself. As from October 2004 the extent of the Act’s coverage is extended significantly to take account of the requirements, so far as they relate to disability discrimination, of an EU Council Directive of 2000, establishing a general framework for equal treatment in employment and occupation. In making these legislative changes Parliament has also signalled the need to further progress the reform agenda on the employment and employability of disabled people, to ensure equality of opportunity. This Code of Practice sets out our understanding of the law as it applies from October 2004 onwards. While many of the original building blocks of the 1995 Act remain in place, there are some new concepts, and the scope of the legislation has been widened considerably. These changes undoubtedly increase the level of protection for disabled people, but they also add to the complexity of the law. As the Code has been prepared with particular regard to helping lawyers when advising their clients, and to assisting courts and tribunals when interpreting the new concepts, it is necessarily comprehensive and detailed. However, the DRC has also produced a range of other information to help disabled people and employers alike to understand their rights and responsibilities. How to find this information is explained in Appendix C to the Code. This Code replaces the ‘Code of Practice for the elimination of discrimination in the field of employment against disabled persons or persons who have had a disability’, issued by the Secretary of State for Education and Employment in 1996 Bert Massie CBE, Chairman, Disability Rights Commission
Contents
References to ‘employers’ in the Code 2. How can discrimination be avoided? Understanding the social dimension of disability Recognising the diverse nature of disability Finding out about disabled people’s needs Implementing anti-discriminatory policies and practices Auditing policies and procedures Ensuring good practice in recruitment 3. The Act’s provisions on employment and occupation – an overview Who has obligations under the Act? What does the Act say about discrimination in relation to employment and occupation? What else is unlawful under the Act’s provisions on employment and occupation? Who is liable for unlawful acts? 4. What is discrimination and harassment? What does the Act mean by ‘direct discrimination’? Failure to make reasonable adjustments – relationship to discrimination What is disability-related discrimination? What does the Act say about victimisation? How do the different forms of discrimination compare in practice? What does the Act say about harassment? What does the Act say about statutory obligations? What evidence is needed to prove that discrimination or harassment has occurred? 5. What is the duty to make reasonable adjustments? When does an employer’s duty to make reasonable adjustments arise? Which disabled people does the duty protect? What are ‘provisions, criteria and practices’? What disadvantages give rise to the duty? What adjustments might an employer have to make? When is it ‘reasonable’ for an employer to have to make adjustments? Can failure to make a reasonable adjustment ever be justified? When does the Act permit justification? Can health and safety concerns justify less favourable treatment? Can medical information justify less favourable treatment? 7. Discrimination in the recruitment of employees Application forms and information Selection, assessment and interview arrangements 8. Discrimination against employees Terms and conditions of service Induction, training and development Benefits provided by employers Managing disability or ill health After the termination of employment 9. Discrimination in Occupation Discrimination against contract workers Discrimination against office holders Discrimination against police officers Discrimination against partners in firms Discrimination against barristers and advocates Discrimination in relation to practical work experience 10. Discrimination in providing occupational pensions an group insurance services 11. Discrimination in providing employment services What is unlawful under the Act? What amounts to discrimination? What is the duty to make reasonable adjustments? Can acts which are potentially discriminatory ever be justified? Bringing claims for discrimination relating to employment services 12. Making reasonable adjustments to premises – legal considerations What about the need to obtain statutory consent for some building changes? Building Regulations and building design What if a binding obligation other than a lease prevents a building being altered? What happens if a lease says that certain changes to premises cannot be made? What happens if the lessor has a ‘superior’ lessor? How do arrangements for gaining consent work? When is it unreasonable for a lessor to withhold consent? What conditions would it be reasonable for a lessor to make when giving consent? What happens if the lessor refuses consent or attaches conditions to consent? Comparison with the procedure for obtaining consent under Part 3 Appendix A: Changes to the Act Appendix B: The meaning of disability Appendix C: Further information
Purpose of Part 2 of the Act
1.1 The Disability Discrimination Act 1995 (the Act) brought in measures to prevent discrimination against disabled people. Part 2 of the Act is based on the principle that disabled people should not be discriminated against in employment or when seeking employment. It also protects disabled people engaged in a range of occupations. Employers must comply with the duties set out in Part 2, as must others to whom those duties apply (see paragraphs 3.8 to 3.14).
1.2 Except for the Armed Forces, these duties now apply to all employers no matter how many (or how few) people they employ. The law changed in this regard on 1 October 2004. Other major changes in the law which took effect on that date, including the extension of the duties to some people or bodies who are not employers, are summarised in Appendix A.
Purpose of the Code
1.3 This Code of Practice (the Code) gives practical guidance on how to prevent discrimination against disabled people in employment or when seeking employment. It describes the duties of employers and others in this regard. The Code helps disabled people to understand the law and what they can do if they feel that they have been discriminated against. By encouraging good practice, the Code assists employers to avoid workplace disputes and to work towards the elimination of discrimination against disabled people.
1.4 The Code also gives guidance on the law which is intended to help lawyers when advising their clients, and to assist courts and tribunals when interpreting new legal concepts. The Code explains the operation and effect of technical statutory provisions – some of which only came into force on 1 October 2004, and many of which have a complex legal effect. Because of this, the Code is necessarily comprehensive and detailed. However, the Disability Rights Commission (DRC) also produces a range of other publications about the Act, and about the rights of disabled people under it, which are intended to be of use to a range of audiences and for a variety of purposes. Details of how to obtain these publications are included in Appendix C.
1.5 [s53A] The DRC has prepared and issued this Code under the Act on the basis of a request by the Secretary of State. It applies to England, Wales and Scotland. A similar but separate Code applies to Northern Ireland.
Status of the Code
1.6 [s53A(8)] The Code does not impose legal obligations. Nor is it an authoritative statement of the law – that is a matter for the courts and tribunals. However, the Code can be used in evidence in legal proceedings under the Act. Courts and employment tribunals must take into account any part of the Code that appears to them relevant to any question arising in those proceedings. If employers (and others who have duties under the Act’s provisions on employment and occupation) follow the guidance in the Code, it may help to avoid an adverse decision by a court or tribunal in such proceedings.
How to use the Code
1.7 This chapter gives an introduction to the Code. Chapter 2 sets out some general guidance on how to avoid discrimination. Chapter 3 contains an overview of the Act’s provisions on employment and occupation, and those provisions are examined in more detail in subsequent chapters.
1.8 Chapter 4 details what is meant by discrimination and harassment, and Chapter 5 explains the duty to make reasonable adjustments for disabled people. Chapter 6 examines the relevance of justification under Part 2. Chapters 7 and 8 consider the application of these principles in the context of recruitment processes and of subsequent employment, and Chapter 9 examines their application to certain occupations.
1.9 Chapter 10 explains how the Act’s provisions on employment and occupation operate in the particular context of occupational pension schemes and group insurance services.
1.10 Chapter 11 describes how the Act deals with discrimination in providing employment services. Such services include vocational guidance and training.
1.11 Chapter 12 looks at particular issues concerning adjustments to premises, and Chapter 13 deals with various other points and explains what happens if discrimination is alleged.
1.12 Appendix A summarises some recent changes in the Act’s provisions on employment and occupation. Appendix B gives more information on what is meant by ‘disability’ and by ‘disabled person’. Separate statutory guidance relating to the definition of disability has been issued under the Act (see paragraph 3.6). Appendix C lists other sources of relevant information about matters referred to in the Code.
1.13 Each chapter of the Code should be viewed as part of an overall explanation of the Act’s provisions on employment and occupation and the regulations made under them. In order to understand the law properly it is necessary to read the Code as a whole. The Code should not be read too narrowly or literally. It is intended to explain the principles of the law, to illustrate how the Act might operate in certain situations and to provide general guidance on good practice. There are some questions which the Code cannot resolve and which must await the authoritative interpretation of the courts and tribunals. The Code is not intended to be a substitute for taking appropriate advice on the legal consequences of particular situations.
Examples in the Code
1.14 Examples of good practice and how the Act is likely to work are given in boxes. They are intended simply to illustrate the principles and concepts used in the legislation and should be read in that light. The examples should not be treated as complete or authoritative statements of the law.
1.15 As stated in paragraph 1.2, the Act’s provisions on employment and occupation now apply to small employers as well as to larger ones. The size of an employer is sometimes relevant to the way in which the Act applies. Where this is the case, examples in the Code show how the application of the Act could be affected by the size of the employer.
1.16 While the examples refer to particular situations, they should be understood more widely as demonstrating how the law is likely to be applied generally. They can often be used to test how the law might apply in similar circumstances involving different disabilities or situations. Some of the examples are based on real cases which have been decided by the courts. In general, however, the examples attempt to use as many different varieties of disabilities and situations as possible to demonstrate the breadth and scope of the Act. Examples relating to men or women are given for realism and could, of course, apply to people of either gender.
References to ‘employers’ in the Code
1.17 Throughout the Code, references are made to ‘employers’ for convenience. However, as explained in paragraphs 3.11 and 3.12, the Act’s provisions on employment and occupation impose obligations on persons who might not ordinarily be described as employers – such as partners in firms, barristers and people providing practical work experience. References in the Code need to be read in this light.
Other references in the Code
1.18 References to the Act are shown in the margins. For example, s 1(1) means section 1(1) of the Act and Sch 1 means Schedule 1 to the Act. References to Part 2, 3 or 4 refer to the relevant Part of the Act. Where reference is made to regulations, the appropriate Statutory Instrument (SI) number is shown in the margin.
Changes to the legislation
1.19 The Code refers to the Disability Discrimination Act as of 1 October 2004. There may be changes to the Act or to other legislation, for example, to the range of people who are considered to be ‘disabled’ under the Act, which may have an effect on the duties explained in this Code. You will need to ensure that you keep up to date with any developments that affect the Act’s provisions. You can get relevant information from the DRC (see below for contact details).
Further information
1.20 Copies of the Act and regulations made under it can be purchased from the Stationery Office (see inside the front of the Code for details). Separate codes covering other aspects of the Act, and guidance relating to the definition of disability are also available from the Stationery Office. The text of all the DRC’s codes (including this Code) can also be downloaded free of charge from the DRC website (see paragraph 1.21).
1.21 Free information about the Act is available on the DRC website. It can also be obtained by contacting the DRC Helpline. This information is available in accessible formats. Calls to the Helpline are charged at local rate.
Website: www.drc-gb.org Telephone: 08457 622 633 Textphone: 08457 622 644 Fax: 08457 778 878
Post: DRC Helpline FREEPOST MID02164 Stratford upon Avon CV37 9BR
Introduction
2.1 Prevention is better than cure. There are various actions which employers can take in order to avoid discriminating against disabled people. By doing so, employers are not only likely to minimise the incidence of expensive and time-consuming litigation, but will also improve their general performance and the quality of their business operations. This chapter sets out some guidance on ways to help ensure that disabled people are not discriminated against.
Understanding the social dimension of disability
2.2 The concept of discrimination in the Act reflects an understanding that functional limitations arising from disabled people’s impairments do not inevitably restrict their ability to participate fully in society. Rather than the limitations of an impairment, it is often environmental factors (such as the structure of a building, or an employer’s working practices) which unnecessarily lead to these social restrictions. This principle underpins the duty to make reasonable adjustments described in Chapter 5. Understanding this will assist employers and others to avoid discrimination. It is as important to consider which aspects of employment and occupation create difficulties for a disabled person as it is to understand the particular nature of an individual’s disability.
Recognising the diverse nature of disability
2.3 There are around ten million disabled adults in our society. The nature and extent of their disabilities vary widely, as do their requirements for overcoming any difficulties they may face. If employers are to avoid discriminating, they need to understand this, and to be aware of the effects their decisions and actions – and those of their agents and employees – may have on disabled people. The evidence shows that many of the steps that can be taken to avoid discrimination cost little or nothing and are easy to implement.
Avoiding making assumptions
2.4 It is advisable to avoid making assumptions about disabled people. Disabilities will often affect different people in different ways and their needs may be different as well. The following suggestions may help to avoid discrimination:
· Do not assume that because a person does not look disabled, he is not disabled. · Do not assume that because you do not know of any disabled people working within an organisation there are none. · Do not assume that most disabled people use wheelchairs. · Do not assume that people with learning disabilities cannot be valuable employees, or that they can only do low status jobs. · Do not assume that a person with a mental health problem cannot do a demanding job. · Do not assume that all blind people read Braille or have guide dogs. · Do not assume that all deaf people use sign language. · Do not assume that because a disabled person may have less employment experience (in paid employment) than a non-disabled person, he has less to offer.
Finding out about disabled people’s needs
2.5 As explained later in the Code (see paragraphs 7.22 and 8.16 for example), the Act requires employers to think about ways of complying with their legal duties. Listening carefully to disabled people and finding out what they want will help employers to meet their obligations by identifying the best way of meeting disabled people’s needs. There is a better chance of reaching the best outcome if discussions are held with disabled people at an early stage.
2.6 Often, discussing with disabled people what is required to meet their needs will reassure an employer that suitable adjustments can be carried out cheaply and with very little inconvenience.
2.7 Evidence shows that in meeting the needs of disabled employees an organisation learns how to meet the needs of disabled customers, and vice versa. By consulting with disabled employees, an organisation can therefore improve the service it provides to its disabled customers and enhance its business.
2.8 There are various ways in which the views of disabled people can be obtained. Many larger employers have established formal structures for seeking and representing the views of disabled people. Small employers can also consult with disabled employees, although the methods may be less formal.
Seeking expert advice
2.9 It may be possible to avoid discrimination by using personal or in-house knowledge and expertise – particularly if information or views are obtained from the disabled person concerned. However, although the Act does not specifically require anyone to obtain expert advice about meeting the needs of disabled people with regard to employment, in practice it may sometimes be necessary to do so in order to comply with the principal duties set out in the Act. Expert advice might be especially useful if a person is newly disabled or if the effects of a person’s disability become more marked. Expert advice about meeting the needs of disabled people may be available from local Jobcentre Plus offices, or from local and national disability organisations.
Planning ahead
2.10 The duties which the Act places on employers are owed to the individual disabled people with whom they have dealings. There is no duty owed to disabled people in general. Nevertheless, it is likely to be cost effective for employers to plan ahead. Considering the needs of a range of disabled people when planning for change (such as when planning a building refurbishment, a new IT system, or the design of a website) is likely to make it easier to implement adjustments for individuals when the need arises.
2.11 It is good practice for employers to have access audits carried out to identify any improvements which can be made to a building to make it more accessible. Access audits should be carried out by suitably qualified people, such as those listed in the National Register of Access Consultants (see Appendix C for details). Websites and intranet sites can also be reviewed to see how accessible they are to disabled people using access software.
Implementing anti-discriminatory policies and practices
2.12 Employers are more likely to comply with their duties under the Act, and to avoid the risk of legal action being taken against them, if they implement anti-discriminatory policies and practices. These are often referred to as equality policies or diversity policies. Additionally, in the event that legal action is taken, employers may be asked to demonstrate to an employment tribunal that they have effective policies and procedures in place to minimise the risk of discrimination. Although large and small employers are likely to have different kinds of anti-discriminatory policies and practices, it is advisable for all employers to take the following steps:
· Establish a policy which aims to prevent discrimination against disabled people and which is communicated to all employees and agents of the employer. · Provide disability awareness and equality training to all employees. In addition, train employees and agents so that they understand the employer’s policy on disability, their obligations under the Act and the practice of reasonable adjustments. People within the organisation who have responsibility for managing, recruiting or training employees are likely to need more specialist training. · Inform all employees and agents that conduct which breaches the policy will not be tolerated, and respond quickly and effectively to any such breaches. · Monitor the implementation and effectiveness of such a policy. · Address acts of disability discrimination by employees as part of disciplinary rules and procedures. · Have complaints and grievance procedures which are easy for disabled people to use and which are designed to resolve issues effectively. · Have clear procedures to prevent and deal with harassment for a reason related to a person’s disability. · Establish a policy in relation to disability-related leave, and monitor the implementation and effectiveness of such a policy. · Consult with disabled employees about their experiences of working for the organisation. · Regularly review the effectiveness of reasonable adjustments made for disabled people in accordance with the Act, and act on the findings of those reviews. · Keep clear records of decisions taken in respect of each of these matters.
Auditing policies and procedures
2.13 Although there is no duty under Part 2 to anticipate the needs of disabled people in general, it is a good idea for employers to keep all their policies under review, and to consider the needs of disabled people as part of this process. It is advisable for employers to do this in addition to having a specific policy to prevent discrimination. Employers are likely to have policies about matters such as:
· flexible working arrangements · appraisal and performance-related pay systems · sickness absence · redundancy selection criteria · emergency evacuation procedures · procurement of equipment, IT systems, software and websites · information provision · employee training and development · employee assistance schemes offering financial or emotional support.
Monitoring
2.14 Monitoring of employees is an important way of determining whether anti-discrimination measures taken by an organisation are effective, and ensuring that disability equality is a reality within that organisation. Information must be gathered sensitively, with appropriately worded questions, and confidentiality must be ensured. Knowing the proportion of disabled people at various levels of the organisation, and at various stages in relation to the recruitment process, can help an organisation determine where practices and policies need to be improved. The extent to which formal monitoring can be carried out will depend on the size of the organisation.
2.15 Monitoring will be more effective if employees (or job applicants) feel comfortable about disclosing information about their disabilities. This is more likely to be the case if the employer explains the purpose of the monitoring and if employees or job applicants believe that the employer genuinely values disabled employees and is using the information gathered to create positive change.
2.16 Some organisations, especially large ones, choose to monitor by broad type of disability to understand the barriers faced by people with different types of impairment.
Ensuring good practice in recruitmentAttracting disabled applicants
2.17 An organisation which recognises that suitably qualified disabled people have not applied to work for it may want to make contact with local employment services, including Jobcentre Plus and specialist disability employment services, to encourage disabled people to apply. It is normally lawful for an employer to advertise a vacancy as open only to disabled people (see paragraph 7.5).
2.18 It is good practice to consider carefully what information should be included in advertisements and where they should be placed.
Promoting a positive image
2.19 It is good practice for an employer to consider its image to ensure that it gives an impression of itself as an organisation that is aware of the needs of disabled people and is striving to create a more diverse workforce.
Use of the Disability Symbol
2.20 The Disability Symbol is a recognition given to employers by Jobcentre Plus. An employer displaying the Disability Symbol must commit itself to a number of measures concerning the recruitment, development and retention of disabled people, including offering a guaranteed interview to any disabled person who meets the essential requirements of the job. It is important that employers make clear what those essential requirements are. For more information about the Disability Symbol see Appendix C.
Resolving disputes
2.21 Having policies and practices to combat discrimination, together with regular consultation with employees, is likely to minimise disputes about disability discrimination. But when such disputes do occur, it is in the interests of employers to attempt wherever possible to resolve them as they arise. Grievance procedures can provide an open and fair way for employees to make their concerns known, and can enable grievances to be resolved quickly before they become major problems. Use of the procedures may highlight areas in which the duty to make reasonable adjustments has not been observed, and can prevent misunderstandings leading to complaints to tribunals. It is important to ensure that grievance procedures are accessible to disabled people.
2.22 In certain circumstances, employers and employees are required by law to comply with internal dispute resolution procedures before making a complaint to a tribunal. Chapter 13 contains further information about grievance procedures and about resolving disputes under the Act. Whether or not an attempt at internal resolution of a dispute is made as a result of a legal requirement, it should be carried out in a non-discriminatory way to comply with the Act.
Introduction
3.1 This chapter gives an overview of the provisions of the Act relating to employment and occupation. It explains who has rights and duties under those provisions and outlines what is made unlawful by them. Later chapters explain the provisions in greater detail.
Who has rights under the Act?
Disabled people
3.2 [ss 1 & 2 Sch 1 & 2] The Act gives protection from discrimination to a ‘disabled’ person within the meaning of the Act. A disabled person is someone who has a physical or mental impairment which has an effect on his or her ability to carry out normal day-to-day activities. That effect must be:
· substantial (that is, more than minor or trivial), and · adverse, and · long term (that is, it has lasted or is likely to last for at least a year or for the rest of the life of the person affected).
3.3 Physical or mental impairment includes sensory impairment. Hidden impairments are also covered (for example, mental illness or mental health problems, learning disabilities, dyslexia, diabetes and epilepsy).
3.4 In considering its duties under the Act, an employer should not use any definition of ‘disabled person’ which is narrower than that in the Act. An employer who is requested to make a disability-related adjustment may ask the person requesting it for evidence that the impairment is one which meets the definition of disability in the Act. It may be appropriate to do so where the disability is not obvious. However, employers should not ask for more information about the impairment than is necessary for this purpose. Nor should they ask for evidence of disability where it ought to be obvious that the Act will apply.
People who have had a disability in the past
3.5 People who have had a disability within the meaning of the Act in the past are protected from discrimination even if they no longer have the disability.
More information about the meaning of disability
3.6 For a fuller understanding of the concept of disability under the Act, reference should be made to Appendix B. A government publication, Guidance on matters to be taken into account in determining questions relating to the definition of disability, provides additional help in understanding the concept of disability and in identifying who is a disabled person. Where relevant, the Guidance must be taken into account in any legal proceedings.
People who have been victimised
3.7 The Act also gives rights to people who have been victimised, whether or not they have a disability or have had one in the past. (see paragraphs 4.33 to 4.36).
Who has obligations under the Act?
Employers
3.8 [s68(1)] Later chapters explain in detail the duties which the Act imposes upon employers. The Act defines ‘employment’ as employment under a contract of service or of apprenticeship or a contract personally to do any work. Anyone who works under a contract falling within this definition is an employee, whether or not, for example, he works full-time.
3.9 [s 68(1), s 64(7), s 4(6), s 68(2)-(2D)] Members of the Armed Forces are excluded from protection under the Act’s provisions on employment and occupation. Otherwise, those provisions now apply to all employers in respect of people they employ wholly or partly at an establishment in Great Britain. Protection under the Act extends to employment wholly outside Great Britain, provided that the employment has a sufficiently close connection with Great Britain – and the Act sets out the circumstances in which this will be the case. Certain employment on board ships, hovercraft and aircraft is also covered.
3.10 A person who is recruiting an employee has duties under the Act even if he is not yet an employer (because the new recruit will be his first employee).
People or bodies concerned with certain occupations
3.11 The Act’s definition of employment is wide enough to include people who are self-employed but who agree to perform work personally. The provisions of Part 2 also extend to the following occupations which do not fall within the definition of employment:
· contract workers · office holders · police officers · partners in firms · barristers and advocates · people undertaking practical work experience for a limited period for the purposes of vocational training.
Many of the principles which apply to employers under Part 2 are equally applicable in respect of these occupations. Further details about the application of the Act’s provisions on employment and occupation in this regard are set out in Chapter 9.
Others to whom Part 2 applies
3.12 In addition, the Act’s provisions on employment and occupation may also impose obligations upon the following people and organisations:
· trustees and managers of occupational pension schemes (see Chapter 10) · insurers who provide group insurance services for an employer’s employees (see Chapter 10) · landlords of premises occupied by an employer or other person to whom Part 2 applies (see Chapter 12) · employees and agents of a person to whom Part 2 applies · Ministers of the Crown, government departments and agencies.
Providers of employment services
3.13 [s 21A] The Act also contains provisions to prevent discrimination by people or organisations who provide employment services – such as employment agencies and careers guidance services (see Chapter 11).
Trade organisations and qualifications bodies
3.14 [ss 12-14B] Finally, Part 2 makes special provision in respect of discrimination against disabled people by trade organisations and qualifications bodies. The nature and effect of the provisions in question is explained in a separate code of practice issued by the DRC (see Appendix C for details).
What does the Act say about discrimination in relation to employment and occupation?
Effect of the Act
3.15 The Act makes it unlawful for an employer to discriminate against a disabled person in relation to the recruitment or retention of staff.
3.16 However, the Act does not prohibit an employer from appointing the best person for the job. Nor does it prevent employers from treating disabled people more favourably than those who are not disabled.
Forms of discrimination
3.17 The four forms of discrimination which are unlawful under Part 2 are:
· direct discrimination (the meaning of which is explained at paragraphs 4.5 to 4.23) · failure to comply with a duty to make reasonable adjustments (explained in Chapter 5) · ‘disability-related discrimination’ (see paragraphs 4.27 to 4.32), and · victimisation of a person (whether or not he is disabled) – what the Act says about victimisation is explained at paragraphs 4.33 to 4.36.
Aspects of employment in respect of which discrimination is unlawful
3.18 [s 4(1)] In relation to recruitment, the Act says that it is unlawful for an employer to discriminate against a disabled person:
· in the arrangements made for determining who should be offered employment · in the terms on which the disabled person is offered employment, or · by refusing to offer, or deliberately not offering, the disabled person employment.
What this means in practice is explained in Chapter 7.
3.19 [s 4(2)] In relation to the retention of staff, the Act says that it is unlawful for an employer to discriminate against a disabled person whom it employs:
· in the terms of employment which it affords him · in the opportunities which it affords him for promotion, a transfer, training or receiving any other benefit · by refusing to afford him, or deliberately not affording him, any such opportunity, or · by dismissing him, or subjecting him to any other detriment.
What this means in practice is explained in Chapter 8.
3.20 [s 16A(3)] The Act also makes it unlawful for an employer to discriminate against a disabled person after that person’s employment has come to an end (see paragraph 8.28).
What else is unlawful under the Act’s provisions on employment and occupation?
Harassment
3.21 [s 3B] In addition to what it says about discrimination, Part 2 makes it unlawful, in relation to the recruitment or retention of staff, for an employer to subject a disabled person to harassment for a reason which relates to his disability. What the Act says about harassment is explained in more detail at paragraphs 4.38 and 4.39.
Instructions and pressure to discriminate
3.22 [s 16C, s17B(1)] It is also unlawful for a person who has authority or influence over another to instruct him, or put pressure on him, to act unlawfully under the provisions of Part 2 (or, insofar as they relate to employment services, Part 3). This covers pressure to discriminate, whether applied directly to the person concerned, or indirectly but in a way in which he is likely to hear of it. However, the Act does not give individual disabled people the right to take legal action in respect of unlawful instructions or pressure to discriminate. Such action may only be taken by the DRC (see paragraphs 13.28 to 13.30).
Who is liable for unlawful acts?
Responsibility for the acts of others
3.23 [s 58] Employers who act through agents (such as occupational health advisers or recruitment agencies) are liable for the actions of their agents done with the employer’s express or implied authority. The Act also says that employers are responsible for the actions of their employees in the course of their employment. However, in legal proceedings against an employer based on the actions of an employee, it is a defence that the employer took ‘such steps as were reasonably practicable’ to prevent such actions. It is not a defence for the employer simply to show that the action took place without its knowledge or approval. Chapter 2 gives guidance on the steps which it might be appropriate to take for this purpose.
Aiding an unlawful act
3.24 [s 57] A person who knowingly helps another to do something made unlawful by the Act will be treated as having done the same kind of unlawful act. This means that, where an employer is liable for an unlawful act of its employee or agent, that employee or agent will be liable for aiding the unlawful act of the employer.
3.25 Where an employee discriminates against or harasses a disabled employee, it is the employer who will be liable for that unlawful act – unless it can show that it took such steps as were reasonable to prevent the unlawful act in question. But the employee who committed the discrimination or harassment will be liable for aiding the unlawful act – and this will be the case even if the employer is able to show that it took reasonable steps to prevent the act.
Enforcing rights under Part 2
3.26 [s 17A] Enforcement of rights under Part 2 takes place in the employment tribunals. Enforcement of rights under the Act in relation to the provision of employment services also takes place in the employment tribunals. More information about enforcement is given in Chapter 13.
Introduction
4.1 As noted at paragraph 3.17, the forms of discrimination which the Act makes unlawful in relation to employment are:
· direct discrimination · failure to comply with a duty to make reasonable adjustments · disability-related discrimination, and · victimisation.
4.2 This chapter describes these four forms of discrimination in more detail, and explains the differences between them. It explores, in particular, the distinction between direct discrimination and disability-related discrimination (see paragraphs 4.28 to 4.31). These two forms of discrimination both depend on the way in which the employer treats the disabled person concerned – both require the disabled person to have been treated less favourably than other people are (or would be) treated. However, whether such treatment amounts to one of these forms of discrimination or the other (and, indeed, whether the treatment is unlawful in the first place) depends on the circumstances in which it arose.
4.3 The chapter examines the four forms of discrimination in the order in which they are listed in paragraph 4.1. This is because less favourable treatment which does not amount to direct discrimination can sometimes be justified. (In contrast, neither direct discrimination nor a failure to comply with a duty to make a reasonable adjustment is justifiable. Victimisation cannot be justified either.) In deciding whether the treatment is justified, and therefore whether there has been disability-related discrimination, the Act requires the question of reasonable adjustments to be taken into account (see paragraphs 6.4 and 6.5 where this is explained in more detail). Consequently, although the chapter describes direct discrimination first, it touches on the subject of reasonable adjustments before moving on to disability-related discrimination.
4.4 This chapter also explains what the Act means by ‘harassment’. The concepts of discrimination and harassment are relevant not only in relation to employment but also to the application of Part 2 in other situations – for example, in relation to the occupations mentioned in Chapter 9. The provisions about discrimination and harassment in Part 2 are also relevant to what the Act says about employment services in Part 3. This is described in Chapter 11.
What does the Act mean by ‘direct discrimination’?
What does the Act say?
4.5 [s 3A(5)] The Act says that an employer’s treatment of a disabled person amounts to direct discrimination if:
· it is on the ground of his disability · the treatment is less favourable than the way in which a person not having that particular disability is (or would be) treated, and · the relevant circumstances, including the abilities, of the person with whom the comparison is made are the same as, or not materially different from, those of the disabled person.
4.6 It follows that direct discrimination depends on an employer’s treatment of a disabled person being on the ground of his disability. It also depends on a comparison of that treatment with the way in which the employer treats (or would treat) an appropriate comparator. If, on the ground of his disability, the disabled person is treated less favourably than the comparator is (or would be) treated, the treatment amounts to direct discrimination.
When is direct discrimination likely to occur?
4.7 Treatment of a disabled person is ‘on the ground of’ his disability if it is caused by the fact that he is disabled or has the disability in question. In general, this means that treatment is on the ground of disability if a disabled person would not have received it but for his disability. However, disability does not have to be the only (or even the main) cause of the treatment complained of – provided that it is an effective cause, determined objectively from all the circumstances.
4.8 Consequently, if the less favourable treatment occurs because of the employer’s generalised, or stereotypical, assumptions about the disability or its effects, it is likely to be direct discrimination. This is because an employer would not normally make such assumptions about a non-disabled person, but would instead consider his individual abilities.
4.9 In addition, less favourable treatment which is disability-specific, or which arises out of prejudice about disability (or about a particular type of disability), is also likely to amount to direct discrimination.
4.10 In some cases, an apparently neutral reason for less favourable treatment of a disabled person may, on investigation, turn out to be a pretext for direct discrimination.
4.11 Direct discrimination will often occur where the employer is aware that the disabled person has a disability, and this is the reason for the employer’s treatment of him. Direct discrimination need not be conscious – people may hold prejudices that they do not admit, even to themselves. Thus, a person may behave in a discriminatory way while believing that he would never do so. Moreover, direct discrimination may sometimes occur even though the employer is unaware of a person’s disability.
4.12 In situations such as those described in the above examples, it will often be readily apparent that the disabled person concerned has been treated less favourably on the ground of his disability. In other cases, however, this may be less obvious. Whether or not the basis for the treatment in question appears to be clear, a useful way of telling whether or not it is discriminatory, (and of establishing what kind of discrimination it is), is to focus on the person with whom the disabled person should be compared. That person may be real or hypothetical (see paragraph 4.18). Identifying comparators in respect of direct discrimination
4.13 In determining whether a disabled person has been treated less favourably in the context of direct discrimination, his treatment must be compared with that of an appropriate comparator. This must be someone who does not have the same disability. It could be a non-disabled person or a person with other disabilities.
4.14 It follows that, in the great majority of cases, some difference will exist between the circumstances (including the abilities) of the comparator and those of the disabled person – there is no need to find a comparator whose circumstances are the same as those of the disabled person in every respect. What matters is that the comparator’s relevant circumstances (including his abilities) must be the same as, or not materially different from, those of the disabled person.
4.15 Once an appropriate comparator is identified, it is clear that the situation described in the example at paragraph 4.8 amounts to direct discrimination:
4.16 The examples of direct discrimination in paragraph 4.9 also become clearer when the appropriate comparator is identified in each case:
4.17 The comparator used in relation to direct discrimination under the Act is the same as it is for other types of direct discrimination – such as direct sex discrimination. It is, however, made explicit in the Act that the comparator must have the same relevant abilities as the disabled person.
4.18 It may not be possible to identify an actual comparator whose relevant circumstances are the same as (or not materially different from) those of the disabled person in question. In such cases a hypothetical comparator may be used. Evidence which helps to establish how a hypothetical comparator would have been treated is likely to include details of how other people (not satisfying the statutory comparison test) were treated in circumstances which were broadly similar.
4.19 It should be noted that the type of comparator described in the preceding paragraphs is only relevant to disability discrimination when assessing whether there has been direct discrimination. A different comparison falls to be made when assessing whether there has been a failure to comply with a duty to make reasonable adjustments (see paragraphs 5.3 and 5.4) or when considering disability-related discrimination (see paragraph 4.30).
Focusing on relevant circumstances
4.20 As stated in paragraph 4.14, direct discrimination only occurs where the relevant circumstances of the comparator, including his abilities, are the same as, or not materially different from, those of the disabled person himself. It is therefore important to focus on those circumstances which are, in fact, relevant to the matter to which the less favourable treatment relates. Although, in some cases, the effects of the disability may be relevant, the fact of the disability itself is not a relevant circumstance for these purposes. This is because the comparison must be with a person not having that particular disability.
4.21 If (as in the above examples) a disabled person alleges that he has been refused the offer of a job on the ground of his disability, it is only appropriate to compare those of his circumstances which are relevant to his ability to do the job. It is not appropriate to compare other circumstances which are not relevant to this issue. The need to focus on relevant circumstances applies not only to recruitment cases of this kind, but also to any other situation where direct discrimination may have occurred.
Relevance of reasonable adjustments to comparison
4.22 In making the comparison in respect of a claim of direct discrimination, the disabled person’s abilities must be considered as they in fact are. In some cases, there will be particular reasonable adjustments which an employer was required by the Act to make, but in fact failed to make. It may be that those adjustments would have had an effect on the disabled person’s abilities to do the job. But in making the comparison, the disabled person’s abilities should be considered as they in fact were, and not as they would or might have been had those adjustments been made. On the other hand, if adjustments have in fact been made which have had the effect of enhancing the disabled person’s abilities, then it is those enhanced abilities which should be considered. The disabled person’s abilities are being considered as they in fact are (and not as they might have been if the adjustments had not been made).
Can direct discrimination be justified?
4.23 [s 3A(4)]Treatment of a disabled person which amounts to direct discrimination under the Act’s provisions on employment and occupation is unlawful. It can never be justified.
Failure to make reasonable adjustments – relationship to discrimination
4.24 [s 3A(2)] For the reason given in paragraph 4.3, it may be necessary to consider whether an employer has failed to comply with a duty to make a reasonable adjustment in order to determine whether disability-related discrimination has occurred.
4.25 Irrespective of its relevance to disability-related discrimination, however, a failure to comply with a duty to make a reasonable adjustment in respect of a disabled person amounts to discrimination in its own right. Such a failure is therefore unlawful. Chapter 5 explains the circumstances in which an employer has such a duty, and gives guidance as to what employers need to do when the duty arises.
4.26 As with direct discrimination, the Act does not permit an employer to justify a failure to comply with a duty to make a reasonable adjustment (see paragraphs 5.43 and 5.44).
What is disability-related discrimination?
What does the Act say?
4.27 [s 3A(1)] The Act says that an employer’s treatment of a disabled person amounts to discrimination if:
· it is for a reason related to his disability · the treatment is less favourable than the way in which the employer treats (or would treat) others to whom that reason does not (or would not) apply, and · the employer cannot show that the treatment is justified.
4.28 Although the Act itself does not use the term ‘disability-related discrimination’, this expression is used in the Code when referring to treatment of a disabled person which:
· is unlawful because each of the conditions listed in paragraph 4.27 is satisfied, but · does not amount to direct discrimination under the Act.
4.29 In general, direct discrimination occurs when the reason for the less favourable treatment in question is the disability, while disability-related discrimination occurs when the reason relates to the disability but is not the disability itself. The expression ‘disability-related discrimination’ therefore distinguishes less favourable treatment which amounts to direct discrimination from a wider class of less favourable treatment which, although not amounting to direct discrimination, is nevertheless unlawful.
When does disability-related discrimination occur?
4.30 In determining whether disability-related discrimination has occurred, the employer’s treatment of the disabled person must be compared with that of a person to whom the disability-related reason does not apply. This contrasts with direct discrimination, which requires a comparison to be made with a person without the disability in question but whose relevant circumstances are the same. The comparator may be non-disabled or disabled – but the key point is that the disability-related reason for the less favourable treatment must not apply to him.
4.31 The relationship between a disabled person’s disability and the employer’s treatment of him must be judged objectively. The reason for any less favourable treatment may well relate to the disability even if the employer does not have knowledge of the disability as such, or of whether its salient features are such that it meets the definition of disability in the Act. Less favourable treatment which is not itself direct discrimination will still be unlawful (subject to justification) if, in fact, the reason for it relates to the person’s disability.
4.32 The circumstances in which justification may be possible are explained in Chapter 6. However, it is worth noting that the possibility of justifying potential discrimination only arises at all when the form of discrimination being considered is disability-related discrimination, rather than direct discrimination or failure to make reasonable adjustments.
What does the Act say about victimisation?
4.33 [s55(1) & (2)] Victimisation is a special form of discrimination which is made unlawful by the Act. It is unlawful for one person to treat another (‘the victim’) less favourably than he treats or would treat other people in the same circumstances because the victim has:
· brought, or given evidence or information in connection with, proceedings under the Act (whether or not proceedings are later withdrawn) · done anything else under or by reference to the Act, or · alleged someone has contravened the Act (whether or not the allegation is later dropped),
or because the person believes or suspects that the victim has done or intends to do any of these things.
4.34 [s 55(4)] It is not victimisation to treat a person less favourably because that person has made an allegation which was false and not made in good faith.
4.35 However, the fact that a person has given evidence on behalf of an applicant in a claim which was unsuccessful does not, of itself, prove that his evidence was false or that it was not given in good faith.
4.36 [s 55(5)] Unlike the other forms of discrimination which are made unlawful by the Act, victimisation may be claimed by people who are not disabled as well as by those who are.
How do the different forms of discrimination compare in practice?
4.37 The way in which the different forms of discrimination which are unlawful under the Act’s provisions on employment and occupation may operate in practice can be demonstrated by the following series of examples.
What does the Act say about harassment?
4.38 [s3B(1)] The Act says that harassment occurs where, for a reason which relates to a person’s disability, another person engages in unwanted conduct which has the purpose or effect of:
· violating the disabled person’s dignity, or · creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
4.39 [s 3B(2)] If the conduct in question was engaged in with the intention that it should have either of these effects, then it amounts to harassment irrespective of its actual effect on the disabled person. In the absence of such intention, however, the conduct will only amount to harassment if it should reasonably be considered as having either of these effects. Regard must be had to all the circumstances in order to determine whether this is the case. Those circumstances include, in particular, the perception of the disabled person.
What does the Act say about statutory obligations?
4.40 [s 59] Nothing is made unlawful by the Act if it is required by an express statutory obligation. However, it is only in cases where a statutory obligation is specific in its requirements, leaving an employer with no choice other than to act in a particular way, that the provisions of the Act may be overridden. The provision in section 59 of the Act is thus of narrow application, and it is likely to permit disability discrimination only in rare circumstances.
What evidence is needed to prove that discrimination or harassment has occurred?
4.41 As stated in paragraph 3.26, enforcement of rights under the Act’s provisions on employment and occupation takes place in the employment tribunals. A person who brings a claim for unlawful discrimination or harassment must show that discrimination has occurred. He must prove this on the balance of probabilities in order to succeed with a claim in an employment tribunal.
4.42 [s 17A(1C)] However, the Act says that, when such a claim is heard by an employment tribunal, the tribunal must uphold the claim if:
· the claimant proves facts from which the tribunal could conclude in the absence of an adequate explanation that the person against whom the claim is made (the respondent) has acted unlawfully, and · the respondent fails to prove that he did not act in that way.
4.43 Consequently, where a disabled person is able to prove on the balance of probabilities facts from which an inference of unlawful discrimination or harassment could be drawn, the burden of proof shifts to the respondent – for example, the disabled person’s employer. This means that the employer must show that it is more likely than not that its conduct was not unlawful. This principle applies to allegations in respect of all forms of discrimination, including victimisation, and to harassment. Its practical effect in relation to the three principal forms of disability discrimination can be summarised as follows:
· To prove an allegation of direct discrimination, an employee must prove facts from which it could be inferred in the absence of an adequate explanation that he has been treated less favourably on the ground of his disability than an appropriate comparator has been, or would be, treated. If the employee does this, the claim will succeed unless the employer can show that disability was not any part of the reason for the treatment in question. · To prove an allegation that there has been a failure to comply with a duty to make reasonable adjustments, an employee must prove facts from which it could be inferred in the absence of an adequate explanation that such a duty has arisen, and that it has been breached. If the employee does this, the claim will succeed unless the employer can show that it did not fail to comply with its duty in this regard. · To prove an allegation of disability-related discrimination, an employee must prove facts from which it could be inferred in the absence of an adequate explanation that, for a reason relating to his disability, he has been treated less favourably than a person to whom that reason does not apply has been, or would be, treated. If the employee does this, the burden of proof shifts, and it is for the employer to show that the employee has not received less favourable treatment for a disability-related reason. Even if the employer cannot show this, however, the employee’s claim will not succeed if the employer shows that the treatment was justified.
4.44 [s 56] The Act provides a means by which a disabled person can seek evidence about whether he has been discriminated against, or subjected to harassment, under the Act’s provisions on employment and occupation. He may do this by using a questionnaire to obtain further information from a person he thinks has acted unlawfully in relation to him (see paragraph 13.13). If there has been a failure to provide a satisfactory response to questions asked by the disabled person in this way, inferences may be drawn from that failure.
4.45 In addition, the fact that there has been a failure to comply with a relevant provision of the Code must be taken into account by a court or tribunal, where it considers it relevant, in determining whether there has been discrimination or harassment (see paragraph 1.6).
Introduction
5.1 In Chapter 4 it was noted that one of the ways in which discrimination occurs under Part 2 of the Act is when an employer fails to comply with a duty imposed on it to make ‘reasonable adjustments’ in relation to the disabled person. This chapter examines the circumstances in which a duty to make reasonable adjustments arises and outlines what an employer needs to do in order to discharge such a duty.
5.2 The concept of a duty to make reasonable adjustments is also relevant to the application of Part 2 in other situations – for example, in relation to the occupations mentioned in Chapter 9, and to the provision of occupational pensions, as explained in Chapter 10.
When does an employer’s duty to make reasonable adjustments arise?
5.3 [s 4A(1)] The duty to make reasonable adjustments arises where a provision, criterion or practice applied by or on behalf of the employer, or any physical feature of premises occupied by the employer, places a disabled person at a substantial disadvantage compared with people who are not disabled. An employer has to take such steps as it is reasonable for it to have to take in all the circumstances to prevent that disadvantage – in other words the employer has to make a ‘reasonable adjustment’. Where the duty arises, an employer cannot justify a failure to make a reasonable adjustment.
5.4 It does not matter if a disabled person cannot point to an actual non-disabled person compared with whom he is at a substantial disadvantage. The fact that a non-disabled person, or even another disabled person, would not be substantially disadvantaged by the provision, criterion or practice or by the physical feature in question is irrelevant. The duty is owed specifically to the individual disabled person.
Which disabled people does the duty protect?
5.5 [s 4A(2)] The duty to make reasonable adjustments applies in recruitment and during all stages of employment, including dismissal. It may also apply after employment has ended. The duty relates to all disabled employees of an employer and to any disabled applicant for employment. In the case of a provision, criterion or practice for determining to whom employment should be offered, the duty also applies in respect of any disabled person who has notified the employer that he may be an applicant for that employment.
5.6 The extent of the duty to make reasonable adjustments depends on the employment circumstances of the disabled person in question. For example, more extensive duties are owed to employees than to people who are merely thinking about applying for a job. More extensive duties are also owed to current employees than to former employees. The extent to which employers have knowledge of relevant circumstances is also a factor (see paragraphs 5.12 to 5.16).
5.7 In order to avoid discrimination, it would be prudent for employers not to attempt to make a fine judgement as to whether a particular individual falls within the statutory definition of disability, but to focus instead on meeting the needs of each employee and job applicant.
What are ‘provisions, criteria and practices’?
5.8 [s 18D(2)] Provisions, criteria and practices include arrangements, for example for determining to whom employment should be offered, and terms, conditions or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded. The duty to make reasonable adjustments applies, for example, to selection and interview procedures and the premises used for such procedures, as well as to job offers, contractual arrangements and working conditions.
What is a ‘physical feature’?
5.9 The Act says that the following are to be treated as a physical feature:
· any feature arising from the design or construction of a building on the premises occupied by the employer · any feature on the premises of any approach to, exit from, or access to such a building · any fixtures, fittings, furnishings, furniture, equipment or materials in or on the premises, and · any other physical element or quality of any land comprised in the premises occupied by the employer.
All these features are covered, whether temporary or permanent. Considerations which need to be taken into account when making adjustments to premises are explained in Chapter 12.
5.10 Physical features will include steps, stairways, kerbs, exterior surfaces and paving, parking areas, building entrances and exits (including emergency escape routes), internal and external doors, gates, toilet and washing facilities, lighting and ventilation, lifts and escalators, floor coverings, signs, furniture, and temporary or movable items. This is not an exhaustive list.
What disadvantages give rise to the duty?
5.11 The Act says that only substantial disadvantages give rise to the duty. Substantial disadvantages are those which are not minor or trivial. Whether or not such a disadvantage exists in a particular case is a question of fact. What matters is not that a provision, criterion or practice or a physical feature is capable of causing a substantial disadvantage to the disabled person in question, but that it actually has this effect on him, or (where applicable) that it would have this effect if he were doing the job at the time.
What if the employer does not know that the person is disabled or is an actual or potential job applicant?
5.12 [s 4A(3)(b)] Although (as explained in paragraphs 4.11 and 4.31) less favourable treatment can occur even if the employer does not know that an employee is disabled, the employer only has a duty to make an adjustment if it knows, or could reasonably be expected to know, that the employee has a disability and is likely to be placed at a substantial disadvantage. The employer must, however, do all it can reasonably be expected to do to find out whether this is the case.
5.13 [s 4A(3)] The principle stated in paragraph 5.12 applies equally to a disabled person who is an actual or potential applicant for employment.
5.14 In addition, an employer only has a duty to make an adjustment if it knows, or could reasonably be expected to know, that the disabled person is, or may be, an applicant.
5.15 If an employer’s agent or employee (such as an occupational health adviser, a personnel officer or line manager or recruitment agent) knows, in that capacity, of an employee’s disability, the employer will not usually be able to claim that it does not know of the disability, and that it therefore has no obligation to make a reasonable adjustment. The same applies in respect of actual or potential applicants for employment. Employers therefore need to ensure that where information about disabled people may come through different channels, there is a means - suitably confidential - for bringing the information together, to make it easier for the employer to fulfil its duties under the Act.
5.16 Information will not be imputed to the employer if it is gained by a person providing services to employees independently of the employer. This is the case even if the employer has arranged for those services to be provided.
Does the duty to make reasonable adjustments apply in other situations related to employment and occupation?
5.17 Paragraphs 5.3 to 5.16 explain when it may be necessary to make an adjustment in relation to employment. Part 2 imposes similar requirements in relation to the occupations it covers, subject to certain differences explained in Chapter 9. Reasonable adjustments may also be required in relation to occupational pension schemes and group insurance services, as explained in Chapter 10.
What adjustments might an employer have to make?
5.18 [s 18B(2)] The Act gives a number of examples of adjustments, or ‘steps’, which employers may have to take, if it is reasonable for them to have to do so (see paragraphs 5.24 to 5.42). Any necessary adjustments should be implemented in a timely fashion, and it may also be necessary for an employer to make more than one adjustment. It is advisable to agree any proposed adjustments with the disabled person in question before they are made. The Act does not give an exhaustive list of the steps which may have to be taken to discharge the duty. Steps other than those listed here, or a combination of steps, will sometimes have to be taken. However, the steps in the Act are:
· making adjustments to premises
· allocating some of the disabled person’s duties to another person
· transferring the person to fill an existing vacancy
· altering the person’s hours of working or training
· assigning the person to a different place of work or training
· allowing the person to be absent during working or training hours for rehabilitation, assessment or treatment
· giving, or arranging for, training or mentoring (whether for the disabled person or any other person)
· acquiring or modifying equipment
· modifying instructions or reference manuals
· modifying procedures for testing or assessment
· providing a reader or interpreter
· providing supervision or other support
5.19 It may sometimes be necessary for an employer to take a combination of steps.
5.20 As mentioned above, it might be reasonable for employers to have to take other steps, which are not given as examples in the Act. These steps could include:
· conducting a proper assessment of what reasonable adjustments may be required · permitting flexible working · allowing a disabled employee to take a period of disability leave
· participating in supported employment schemes, such as Workstep
· employing a support worker to assist a disabled employee
· modifying disciplinary or grievance procedures
· adjusting redundancy selection criteria
· modifying performance-related pay arrangements.
5.21 Advice and assistance (which may include financial assistance) in relation to making adjustments may be available from the Access to Work scheme (see paragraphs 8.19 and 8.20).
5.22 In some cases a reasonable adjustment will not work without the co-operation of other employees. Employees may therefore have an important role in helping to ensure that a reasonable adjustment is carried out in practice. Subject to considerations about confidentiality (explained at paragraphs 8.21 to 8.23), employers must ensure that this happens. It is unlikely to be a valid defence to a claim under the Act that staff were obstructive or unhelpful when the employer tried to make reasonable adjustments. An employer would at least need to be able to show that it took such behaviour seriously and dealt with it appropriately. Employers will be more likely to be able to do this if they establish and implement the type of policies and practices described at paragraph 2.12.
5.23 Further examples of the way in which reasonable adjustments work in practice are given in Chapters 7 and 8, which deal with recruitment and retention.
When is it ‘reasonable’ for an employer to have to make adjustments?
5.24 Whether it is reasonable for an employer to make any particular adjustment will depend on a number of things, such as its cost and effectiveness. However, if an adjustment is one which it is reasonable to make, then the employer must do so. Where a disabled person is placed at a substantial disadvantage by a provision, criterion or practice of the employer, or by a physical feature of the premises it occupies, the employer must consider whether any reasonable adjustments can be made to overcome that disadvantage. There is no onus on the disabled person to suggest what adjustments should be made (although it is good practice for employers to ask) but, where the disabled person does so, the employer must consider whether such adjustments would help overcome the disadvantage, and whether they are reasonable.
5.25 Effective and practicable adjustments for disabled people often involve little or no cost or disruption and are therefore very likely to be reasonable for an employer to have to make. Even if an adjustment has a significant cost associated with it, it may still be cost-effective in overall terms – and so may be a reasonable adjustment to make. Many adjustments do not involve making physical changes to premises. However, where such changes do need to be made, employers may need to take account of the considerations explained in Chapter 12 which deals with issues about making alterations to premises.
5.26 [SI 1999/3242] If making a particular adjustment would increase the risks to the health and safety of any person (including the disabled person in question) then this is a relevant factor in deciding whether it is reasonable to make that adjustment. Suitable and sufficient risk assessments, such as those carried out for the purposes of the Management of Health and Safety at Work Regulations 1999, should be used to help determine whether such risks are likely to arise.
5.27 [s 18B(1)] The Act lists a number of factors which may, in particular, have a bearing on whether it will be reasonable for the employer to have to make a particular adjustment. These factors make a useful checklist, particularly when considering more substantial adjustments. The effectiveness and practicability of a particular adjustment might be considered first. If it is practicable and effective, the financial aspects might be looked at as a whole – the cost of the adjustment and resources available to fund it. Other factors might also have a bearing. The factors in the Act are listed below.
The effectiveness of the step in preventing the disadvantage
5.28 It is unlikely to be reasonable for an employer to have to make an adjustment involving little benefit to the disabled person.
5.29 However, an adjustment which, taken alone, is of marginal benefit, may be one of several adjustments which, when looked at together, would be effective. In that case, it is likely to be reasonable to have to make it. The practicability of the step
5.30 It is more likely to be reasonable for an employer to have to take a step which is easy to take than one which is difficult. In some circumstances it may be reasonable to have to take a step, even though it is difficult.
The financial and other costs of the adjustment and the extent of any disruption caused
5.31 If an adjustment costs little or nothing and is not disruptive, it would be reasonable unless some other factor (such as practicability or effectiveness) made it unreasonable. The costs to be taken into account include those for staff and other resources. The significance of the cost of a step may depend in part on what the employer might otherwise spend in the circumstances. In assessing the likely costs of making an adjustment, the availability of external funding (such as funding by Access to Work) should be taken into account.
5.32 The significance of the cost of a step may also depend in part on the value of the employee’s experience and expertise to the employer.
5.33 Examples of the factors that might be considered as relating to the value of an employee would include:
· the amount of resources (such as training) invested in the individual by the employer · the employee’s length of service · the employee’s level of skill and knowledge · the employee’s quality of relationships with clients · the level of the employee’s pay.
5.34 It is more likely to be reasonable for an employer to have to make an adjustment with significant costs for an employee who is likely to be in the job for some time than for a temporary employee.
5.35 An employer is more likely to have to make an adjustment which might cause only minor inconvenience to other employees or the employer than one which might unavoidably prevent other employees from doing their job, or cause other significant disruption.
The extent of the employer’s financial or other resources
5.36 It is more likely to be reasonable for an employer with substantial financial resources to have to make an adjustment with a significant cost, than for an employer with fewer resources. The resources in practice available to the employer as a whole should be taken into account as well as other calls on those resources. For larger employers, it is good practice to have a specific budget for reasonable adjustments – but limitations on the size of any such budget will not affect the existence of the employer’s duties to disabled employees. The reasonableness of an adjustment will depend not only on the resources in practice available for the adjustment but also on all other relevant factors (such as effectiveness and practicability).
5.37 It is more likely to be reasonable for an employer with a substantial number of staff to have to make certain adjustments, than for a smaller employer.
The availability to the employer of financial or other assistance to help make an adjustment
5.38 The availability of outside help (such as advice and assistance from Access to Work) may well be a relevant factor.
5.39 A disabled person is not required to contribute to the cost of a reasonable adjustment. However, if a disabled person has a particular piece of special or adapted equipment which he is prepared to use for work, this might make it reasonable for the employer to have to take some other step (as well as allowing the use of the equipment).
The nature of the employer’s activities, and the size of its undertaking
5.40 As explained in paragraphs 3.9 and 3.10, Part 2 now applies to all employers (except for the Armed Forces), irrespective of their size. However, the size of an employer’s undertaking and the nature of its activities may be relevant in determining the reasonableness of a particular step.
In relation to private households, the extent to which taking the step would disrupt the household or disturb any person residing there
5.41 The duty to make reasonable adjustments may apply in respect of disabled people who work in private households. However, even if the financial cost would be minimal, it might not be reasonable to take a particular step if doing so would entail disruption to the household or disturbance to people who live there.
Other factors
5.42 Although the Act does not mention any further factors, others may be relevant depending on the circumstances. For example:
· effect on other employees
· adjustments made for other disabled employees
· the extent to which the disabled person is willing to co-operate
Can failure to make a reasonable adjustment ever be justified?
5.43 [s 3A(2)] The Act does not permit an employer to justify a failure to comply with a duty to make a reasonable adjustment. This is a change in the law (see Appendix A).
5.44 Clearly, however, an employer will only breach such a duty if the adjustment in question is one which it is reasonable for it to have to make. So, where the duty applies, it is the question of ‘reasonableness’ which alone determines whether the adjustment has to be made.
Introduction
6.1 Most conduct which is potentially unlawful under Part 2 of the Act cannot be justified. Conduct which amounts to:
· direct discrimination · failure to comply with a duty to make a reasonable adjustment · victimisation · harassment · instructions or pressure to discriminate, or · aiding an unlawful act
is unlawful irrespective of the reason or motive for it.
When does the Act permit justification?
6.2 Paragraph 4.27 explains that one of the forms of discrimination which is unlawful under Part 2 is disability-related discrimination. However, an employer’s conduct towards a disabled person does not amount to disability-related discrimination if it can be justified. This chapter explains the limited circumstances in which this may happen.
6.3 [s 3A(3) & (4)] Where less favourable treatment of a disabled person is capable of being justified (that is, where it is not direct discrimination), the Act says that it will, in fact, be justified if, but only if, the reason for the treatment is both material to the circumstances of the particular case and substantial. This is an objective test. ‘Material’ means that there must be a reasonably strong connection between the reason given for the treatment and the circumstances of the particular case. ‘Substantial’ means, in the context of justification, that the reason must carry real weight and be of substance.
6.4 In certain circumstances, the existence of a material and substantial reason for disability-related less favourable treatment is not enough to justify that treatment. This is the case where an employer is also under a duty to make reasonable adjustments in relation to the disabled person but fails to comply with that duty.
6.5 [s 3A(6)] In those circumstances, it is necessary to consider not only whether there is a material and substantial reason for the less favourable treatment, but also whether the treatment would still have been justified even if the employer had complied with its duty to make reasonable adjustments. In effect, it is necessary to ask the question ‘would a reasonable adjustment have made any difference?’ If a reasonable adjustment would have made a difference to the reason that is being used to justify the treatment, then the less favourable treatment cannot be justified.
6.6 In relation to disability-related discrimination, the fact that an employer has failed to comply with a duty to make a reasonable adjustment means that the sequence of events for justifying disability-related less favourable treatment is as follows:
· The disabled person proves facts from which it could be inferred in the absence of an adequate explanation that:
a. for a reason related to his disability, he has been treated less favourably than a person to whom that reason does not apply has been, or would be, treated, and b. a duty to make a reasonable adjustment has arisen in respect of him and the employer has failed to comply with it.
· The employer will be found to have discriminated unless it proves that:
a. the reason for the treatment is both material to the circumstances of the particular case and substantial, and b. the reason would still have applied if the reasonable adjustment had been made.
Can health and safety concerns justify less favourable treatment?
6.7 Stereotypical assumptions about the health and safety implications of disability should be avoided, both in general terms and in relation to particular types of disability. Indeed, less favourable treatment which is based on such assumptions may itself amount to direct discrimination – which is incapable of justification (see paragraph 4.5). The fact that a person has a disability does not necessarily mean that he represents an additional risk to health and safety.
6.8 Under health and safety law it is the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees. Part of this duty is a requirement for all employers to assess the risks to the health and safety of all employees in the workplace and then to put in place measures that reduce the risks to as low a level as can reasonably be achieved. Genuine concerns about the health and safety of anybody (including a disabled employee) may be relevant when seeking to establish that disability-related less favourable treatment of a disabled person is justified. However, it is important to remember that health and safety law does not require employers to remove all conceivable risk, but to ensure that risk is properly appreciated, understood and managed. Further information can be obtained from the Health and Safety Executive (see Appendix C for details).
6.9 It is the employer who must decide what action to take in response to concerns about health and safety. However, when an employer has reason to think that the effects of a person’s disability may give rise to an issue about health and safety, it is prudent for it to have a new risk assessment carried out by a suitably qualified person. This is because:
· If an employer treats a disabled person less favourably merely on the basis of generalised assumptions about the health and safety implications of having a disability, such treatment may itself amount to direct discrimination – which is incapable of justification. · Even where there is no direct discrimination, an employer which treats a disabled person less favourably without having a suitable and sufficient risk assessment carried out is unlikely to be able to show that its concerns about health and safety justify the less favourable treatment.
6.10 Nevertheless, an employer should not subject a disabled person to a risk assessment if this is not merited by the particular circumstances of the case. A person with a learning disability has been working in a shop for many years, stocking shelves without any problems. A new manager is appointed who insists that a risk assessment is carried out for her but not for all the other shelf stackers. This is unlikely to be warranted – and indeed it is likely to amount to direct discrimination.
6.11 A risk assessment must be suitable and sufficient. It should identify the risks associated with a work activity, taking account of any reasonable adjustments put in place for the disabled person, and should be specific for the individual carrying out a particular task. It is therefore unlikely that an employer which has a general policy of treating people with certain disabilities (such as epilepsy, diabetes or mental health problems) less favourably than other people will be able to justify doing so – even if that policy is in accordance with the advice of an occupational health adviser.
6.12 A ‘blanket’ policy of this nature will usually be unlawful. This is because it is likely to amount to direct discrimination (which cannot ever be justified) or to disability-related less favourable treatment which is not justifiable in the circumstances - ie disability-related discrimination (see paragraphs 7.8 and 7.9).
6.13 Reasonable adjustments made by an employer may remove or reduce health and safety risks related to a person’s disability. A suitable and sufficient assessment of such risks therefore needs to take account of the impact which making any reasonable adjustments would have. If a risk assessment is not conducted on this basis, then an employer is unlikely to be able to show that its concerns about health and safety justify less favourable treatment of the disabled person.
Can medical information justify less favourable treatment?
6.14 Consideration of medical information (such as a doctor’s report or the answers to a medical questionnaire) is likely to form part of an assessment of health and safety risks. In most cases, however, having a disability does not adversely affect a person’s general health. In other cases, its effect on a person’s health may fluctuate. Although medical information about a disability may justify an adverse employment decision (such as a decision to dismiss or not to promote), it will not do so if there is no effect on the person’s ability to do the job (or if any effect is less than substantial), no matter how great the effects of the disability are in other ways. Indeed, less favourable treatment of a disabled person in a case where his disability has no effect on his ability to do the job may well amount to direct discrimination – which is incapable of being justified.
6.15 In addition, where medical information is available, employers must weigh it up in the context of the actual job, and the capabilities of the individual. An employer should also consider whether reasonable adjustments could be made in order to overcome any problems which may have been identified as a result of the medical information. It should not be taken for granted that the person who provides the medical information will be aware that employers have a duty to make reasonable adjustments, what these adjustments might be, or of the relevant working arrangements. It is good practice, therefore, to ensure that medical advisers are made aware of these matters. Information provided by a medical adviser should only be relied on if the adviser has the appropriate knowledge and expertise.
6.16 In any event, although medical evidence may generally be considered as an ‘expert contribution’, it should not ordinarily be the sole factor influencing an employer’s decision on employment related matters. The views of the disabled person (about his own capabilities and possible adjustments) should also be sought. In addition, and subject to the considerations about confidentiality explained in paragraphs 8.21 and 8.22, other contributions could come from the disabled person’s line manager (about the nature of the job and possible adjustments). It may also be possible to seek help from disability organisations or from Jobcentre Plus, who have staff trained to advise about disability issues in the workplace. Ultimately, it is for the employer – and not the medical adviser – to take decisions as to whether, for example, to reject a job applicant or to maintain a disabled person’s employment.
Introduction
7.1 [s 4(1)] It has already been explained (at paragraph 3.18) that it is unlawful for an employer to discriminate against a disabled person:
· in the arrangements made for determining who should be offered employment · in the terms on which the disabled person is offered employment, or · by refusing to offer, or deliberately not offering, the disabled person employment.
7.2 This chapter examines these principles in more detail. In order to do so, it is necessary to look at the various stages of the recruitment process, from specifying the job and advertising the vacancy, to the process of assessing candidates, interview and selection.
7.3 Although the following paragraphs refer only to the recruitment of employees, it should be remembered that the same principles apply to the recruitment of people to occupations covered by the Act’s provisions on employment and occupation. Any variations in the way the Act applies to such occupations are explained in Chapter 9.
General considerations
Recruiting the best person for the job
7.4 Before considering the recruitment process itself it should be noted that, although an employer must not discriminate against a disabled candidate, there is no requirement (aside from the duty to make reasonable adjustments) to treat a disabled person more favourably than it treats or would treat others. An employer will have to assess an applicant’s merits as they would be if any reasonable adjustments required under the Act had been made. If, after allowing for those adjustments, a disabled person would not be the best person for the job, the employer does not have to recruit that person.
7.5 On the other hand, the Act does not prevent posts being advertised as open only to disabled applicants, or to an applicant being preferred for the job because of his disability. Special rules apply to local authority employers, however, as explained in paragraph 13.25. A note about ‘arrangements’ for determining who should be offered employment
7.6 Although the statutory provisions specifically deal with recruitment in relation to employment as defined by the Act (see paragraph 3.8), the meaning of ‘arrangements’ – that is, arrangements for determining who should be offered employment – is wide. Such arrangements are not confined to those which an employer makes in deciding who should be offered a specific job, but also include arrangements for deciding who should be offered employment more generally. Thus, for example, participation in a pre-employment training programme could be ‘an arrangement’ if its completion is a necessary step along the road to gaining an offer of employment.
Specifying the job
How does the Act affect the way in which a job description or person specification should be prepared?
7.7 The inclusion of unnecessary or marginal requirements in a job description or person specification can lead to discrimination.
7.8 Blanket exclusions (i.e. exclusions which do not take account of individual circumstances) can also lead to discrimination. Indeed, such exclusions are likely to amount to direct discrimination, and so be incapable of justification (see paragraph 4.5).
7.9 In addition, stating that a certain personal, medical or health-related characteristic is essential or desirable can lead to discrimination if the characteristic is not necessary for the performance of the job. An employer would therefore need to ensure that any such requirements were genuinely essential to the job, and that it would not be reasonable to waive them in any individual case.
7.10 Likewise, although an employer is entitled to specify that applicants for a job must have certain qualifications, it will have to justify rejecting a disabled person for lacking a qualification if the reason why the disabled person lacks it is related to his disability. Justification will involve showing that the qualification is relevant and significant in terms of the particular job and the particular applicant, and that there is no reasonable adjustment which would change this. In some circumstances it might be feasible to reassign the duties to which the qualification relates, or to waive the requirement for the qualification if this particular applicant has alternative evidence of the necessary level of competence.
Advertising the vacancy
Can a job advertisement encourage applications from disabled people?
7.11 The Act does not prevent a job advertisement saying that the employer would welcome applications from disabled people. This would be a positive and public statement of the employer’s policy. More information about good practice in relation to attracting disabled job applicants is given at paragraphs 2.17 and 2.18.
What about discriminatory job advertisements?
7.12 [s 16B(1)] The Act says that, when advertising a job vacancy, it is unlawful for the person offering the job to publish an advertisement (or cause it to be published) which indicates, or might reasonably be understood to indicate:
· that the success of a person’s application for the job may depend to any extent on his not having any disability, or any particular disability, or · that the person determining the application is reluctant to make reasonable adjustments.
7.13 [s 16B(2)-(4)] This applies to every form of advertisement or notice, whether to the public or not, for any employment, promotion or transfer of employment. However, an advertisement may still be lawful even if it does indicate that having a particular disability will adversely affect an applicant’s prospects of success. This will be the case where, for example, because of the nature of the job in question, the employer is entitled to take the effects of the disability into account when assessing the suitability of applicants.
7.14 [s 17B(1)] The Act does not give individual job applicants the right to take legal action in respect of discriminatory advertisements. Such action may only be taken by the DRC (see paragraphs 13.28 to 13.30).
7.15 In addition, it should be noted that the content of the advertisement could be taken into account by an employment tribunal in determining a claim brought by a disabled person under the Act.
Application forms and information
Does an employer have to provide information about jobs in accessible formats?
7.16 Where an employer provides information about a job, it is likely to be a reasonable adjustment for it to provide on request information in a format that is accessible to a disabled applicant – particularly if the employer’s information systems, and the time available before the new employee is needed, mean it can easily be done. Accessible formats include email, Braille, Easy Read, large print, audio tape and computer disc. A disabled person’s requirements will depend upon his impairment, but on other factors too. For example, many blind people do not read Braille but prefer to receive information by email or on audio tape.
Does an employer have to accept applications in accessible formats?
7.17 Where an employer invites applications by completing and returning an application form, it is likely to be a reasonable adjustment for it to accept applications which contain the necessary information in accessible formats. However, a disabled person might not have a right to submit an application in his preferred format (such as Braille) if he would not be substantially disadvantaged by submitting it in some other format (such as email) which the employer would find easier to access. Where applications are invited by completing and returning a form on-line, that form should be accessible to disabled people (or an accessible alternative should be provided).
7.18 Whether or not an application is submitted in an accessible format, employers and their staff or agents must not discriminate against disabled people in the way that they deal with their applications.
Selection, assessment and interview arrangements
When must an employer make adjustments to its selection, assessment and interview arrangements?
7.19 An employer is not required to make changes in anticipation of applications from disabled people in general – although it would obviously be good practice to do so. It is only if the employer knows or could be reasonably expected to know that a particular disabled person is, or may be, applying and is likely to be substantially disadvantaged by the employer’s premises or arrangements, that the employer may have to make changes.
When should an employer short-list a disabled person for interview?
7.20 Many employers operate a guaranteed interview scheme, under which a disabled candidate who wishes to use the scheme will be short-listed for interview automatically if he demonstrates that he meets the minimum criteria for getting the job.
7.21 Regardless of whether an employer operates a guaranteed interview scheme, it will need to consider whether it should make reasonable adjustments when short-listing for interview. This will be the case if an employer knows or ought to know that an applicant has a disability and is likely to be at a substantial disadvantage because of its recruitment arrangements or the premises in which any interviews are held. In these circumstances, the employer should consider whether there is any reasonable adjustment which would remove the disadvantage. Any such adjustment should be taken into account when short-listing applicants. If the employer cannot make this judgment without more information it would be discriminatory for it not to put the disabled person on the short-list for interview if that is how it would normally seek additional information about candidates.
What adjustments might an employer have to make when arranging or conducting interviews?
7.22 Employers should think ahead for interviews. Depending upon the circumstances, changes may need to be made to arrangements for interviews or to the way in which interviews are carried out.
7.23 It is a good idea to give applicants the opportunity to indicate any relevant effects of a disability and to suggest adjustments to help overcome any disadvantage the disability may cause at interview. This could help the employer avoid discrimination in the interview and in considering the application, by clarifying whether any reasonable adjustments may be required. However, an employer must not assume that no adjustments need to be made simply because the applicant has not requested any (see paragraph 5.24).
7.24 The practical effects of an employer’s duties may be different if a person whom the employer previously did not know, and could not reasonably be expected to have known, to be disabled arrives for interview and is substantially disadvantaged because of the arrangements. The employer may still be under a duty to make a reasonable adjustment from the time that it first learns of the disability and the disadvantage. However, the employer might not be required to do as much as might have been the case if it had known (or if it ought to have known) in advance about the disability and its effects.
What about aptitude or other tests in the recruitment process?
7.25 The Act does not prevent employers carrying out aptitude or other tests, including psychological tests. However, routine testing of all candidates may still discriminate against particular individuals or substantially disadvantage them. In those cases, the employer would need to revise the tests – or the way the results are assessed – to take account of a disabled candidate. This does not apply, however, where the nature and form of the test is necessary to assess a matter relevant to the job. The following are examples of adjustments which may be reasonable:
· allowing a disabled person extra time to complete the test · permitting a disabled person the assistance of a reader or scribe during the test · accepting a lower ‘pass rate’ for a person whose disability inhibits performance in such a test.
The extent to which such adjustments might be required would depend on how closely the test is related to the job in question and what adjustments the employer might have to make if the applicant were given the job.
7.26 However, employers would be well advised to seek professional advice in the light of individual circumstances before making adjustments to psychological or aptitude tests.
When can an employer ask questions about a disability?
7.27 The Act does not prohibit an employer from seeking information about a disability. However, the Data Protection Code of Practice on Employment and Recruitment (see Appendix C for details) states that information should not be sought from applicants unless necessary to enable the recruitment decision to be made, or for a related purpose such as equal opportunities monitoring. Disability-related questions must not be used to discriminate against a disabled person. An employer should only ask such questions if they are, or may be, relevant to the person’s ability to do the job – after a reasonable adjustment, if necessary.
7.28 Asking a basic question as to whether or not a person is disabled is unlikely to yield any useful information for the employer and may simply lead to confusion. The fact that such a question was asked might subsequently be used as evidence of discrimination. In addition, short-listing on the basis of an applicant’s responses to a medical questionnaire may be discriminatory if the employer has not ascertained the likely effects of a disability or medical condition on the applicant’s ability to do the job, or whether reasonable adjustments would overcome any disadvantage it causes. Even where there are medical requirements which must be met, it is good practice for employers not to require job applicants to answer a medical questionnaire until after a conditional job offer has been made.
7.29 On the other hand, when inviting a job applicant to attend an interview, it is good practice for an employer to ask whether any adjustments might be needed to enable him to participate fully in the process, and what those adjustments might be.
7.30 In addition, once a decision has been made to appoint a disabled person, it is good practice for an employer to discuss reasonable adjustments with him before he starts work. An employer may also wish to monitor disabled applicants, as part of an overall monitoring policy, although this information should be kept separately from an application form. More information about good practice in relation to monitoring is given in paragraphs 2.14 to 2.16.
Can a disabled person be required to have a medical examination?
7.31 Although the Act does not prevent an employer from asking a disabled person to have a medical examination, an employer will probably be discriminating unlawfully if, without justification, it insists on a medical check for a disabled person but not for others. The fact that a person has a disability is, in itself, unlikely to justify singling out that person to have a health check – although this might be justified in relation to some jobs. Paragraphs 6.14 to 6.16 explain the circumstances in which medical information may legitimately influence an employer’s decision as to whether to offer a job to a disabled person.
Offers of employment
7.32 Terms and conditions of service should not discriminate against a disabled person. In general, an employer should not offer a job to a disabled person on terms which are less favourable than those which would be offered to other people.
Introduction
8.1 [s 4(2)] It has already been explained (at paragraph 3.19) that it is unlawful for an employer to discriminate against a disabled person whom it employs:
· in the terms of employment which it affords him · in the opportunities which it affords him for promotion, a transfer, training or receiving any other benefit · by refusing to afford him, or deliberately not affording him, any such opportunity, or · by dismissing him, or subjecting him to any other detriment.
8.2 This chapter examines these principles in more detail. In order to do so, it is necessary to look at various aspects of the employment relationship and its associated conditions and benefits, from terms and conditions of service to arrangements for induction and training, and from opportunities for promotion or transfer to arrangements for managing disability or ill health, and terminating employment.
8.3 Although the following paragraphs refer only to the treatment of employees, it should be remembered that the same principles apply to people in occupations covered by the Act’s provisions on employment and occupation. Any variations in the way the Act applies to such occupations are explained in Chapter 9. In addition, particular issues about discrimination in providing occupational pensions and group insurance services are considered in Chapter 10.
Terms and conditions of service
8.4 As stated at paragraph 7.32, terms and conditions of service should not discriminate against a disabled person. The employer should consider whether any reasonable adjustments need to be made to the terms and conditions which would otherwise apply.
8.5 Where the terms and conditions of employment include an element of performance-related pay, the employer must ensure that the way such pay arrangements operate does not discriminate against a disabled employee. If, on the ground of disability, an employee is denied the opportunity to receive performance-related pay, this is likely to be direct discrimination. Even if less favourable treatment of an employee in relation to performance-related pay is not directly discriminatory, it will amount to disability-related discrimination unless the employer can show that it is justified.
8.6 If an employee has a disability which adversely affects his rate of output, the effect may be that he receives less under a performance-related pay scheme than other employees. The employer must consider whether there are reasonable adjustments which would overcome this substantial disadvantage.
Induction, training and development
8.7 [s 4(2) & s 4A(1)] Employers must not discriminate in their induction procedures. The employer may have to make adjustments to ensure a disabled person is introduced into a new working environment in a clearly structured and supported way, with an individually tailored induction programme if necessary.
8.8 In addition, employers must not discriminate in selection for training and must make reasonable adjustments in order to avoid disabled people being placed at a substantial disadvantage.
Benefits provided by employers
8.9 [s 4(2) & s 4A(1)] Employers often provide a range of benefits to their staff. ‘Benefits’ include ‘facilities’ and ‘services’. An employer must not discriminate in the way that it makes benefits available to disabled employees where those benefits are available to other employees. The employer must make any necessary reasonable adjustment to the way the benefits are provided. As explained in Chapter 10, an employer’s duty to make reasonable adjustments now extends to the way it provides any benefits relating to occupational pension schemes or group insurance services.
8.10 Benefits might include canteens, meal vouchers, social clubs and other recreational activities, dedicated car parking spaces, discounts on products, bonuses, share options, hairdressing, clothes allowances, financial services, healthcare, medical assistance/insurance, transport to work, company car, education assistance, workplace nurseries, and rights to special leave. This is not an exhaustive list. If physical features of a company’s social club would inhibit a disabled person’s access it might be a reasonable adjustment for the employer to make suitable modifications.
8.11 [s 16A] Some benefits may continue after employment has ended. An employer’s duties under the Act extend to its former employees in respect of such benefits.
8.12 [s 4(2) & (4)] The provisions on employment and occupation in Part 2 do not normally apply to benefits which an employer provides to the public, or to a section of the public which includes the disabled employee. This is because the provision of those benefits relates to the employer’s activities as a service provider rather than as an employer. Such activities are usually subject to the duties in Part 3 instead. However, the Act’s provisions on employment and occupation will apply if the benefit to employees is materially different (for example, at a discount) or is governed by the contract of employment, or relates to training.
Promotion and transfer
8.13 [s 4(2) & s 4A(1)] Employers must ensure that arrangements for promoting staff, or for transferring staff between jobs, do not discriminate against disabled people. It is likely to be direct discrimination if a disabled employee is treated less favourably in this regard on the ground of disability (see paragraph 4.5). If the treatment is not directly discriminatory, but is for a reason related to the disability, it will amount to disability-related discrimination unless the employer can show that it is justified. Employers must not discriminate in the practical arrangements necessary to enable the promotion or transfer to take place or, of course, in the new job itself. Reasonable adjustments may need to be made to the various stages in the promotion or transfer process.
8.14 As with other aspects of employment, employers will be better placed to ensure that promotion and transfer arrangements do not discriminate against disabled people if they have established and implemented policies and practices to counter discrimination generally (see paragraph 2.12). These will help employers to check, for example, that qualifications required for promotion or transfer are justified for the job to be done, and to monitor other arrangements – such as systems for determining criteria for a particular job – so that they do not exclude disabled people who may have been unable to meet those criteria because of their disability but who would be capable of performing well in the job.
Managing disability or ill health
Retention of disabled employees
8.15 [s 4(2)] An employer must not discriminate against an employee who becomes disabled, or who has a disability which worsens. Employers will often find that it is of benefit to their organisation to retain a disabled employee as this will prevent their knowledge and skills from being lost to the enterprise. In addition, the cost of retaining such an employee will frequently be less than the cost of recruiting and training a new member of staff.
8.16 If as a result of the disability an employer’s arrangements or a physical feature of the employer’s premises place the employee at a substantial disadvantage in doing his existing job, the employer must consider any reasonable adjustment that would resolve the difficulty. The nature of the adjustments which an employer may have to consider will depend on the circumstances of the case, but the following considerations will always be relevant:
· The first consideration in making reasonable adjustments should be to enable the disabled employee to continue in his present job if at all possible. · The employer should consult the disabled person at appropriate stages about what his needs are and, where the employee has a progressive condition, what effect the disability might have on future employment, so that reasonable adjustments may be planned. · In appropriate cases, the employer should also consider seeking expert advice on the extent of a disabled person’s capabilities and on what might be done to change premises or working arrangements. Where an employee has been off work, a phased return might be appropriate. · If there are no reasonable adjustments which would enable the disabled employee to continue in his present job, the employer must consider whether there are suitable alternative positions to which he could be redeployed.
8.17 It may be possible to modify a job to accommodate an employee’s changing needs. This might be by rearranging working methods or giving another employee certain minor tasks that the disabled person can no longer do, or by providing practical aids or adaptations to premises or equipment, or allowing the disabled person to work at different times or places from those with equivalent jobs. It may be that a reduction in working hours is appropriate.
8.18 The issue of job retention might also arise when an employee has a stable impairment but the nature of his job changes. In these circumstances an employer may also have a duty to make reasonable adjustments.
Access to Work Scheme
8.19 In determining what adjustments to make to facilitate the employment of a disabled person, employers should have regard to the range of advice and assistance which is available from Jobcentre Plus through the Access to Work scheme. The purpose of the scheme is to provide practical support to disabled people in, or entering, paid employment to help overcome work related obstacles resulting from disability. Access to Work provides a grant towards these additional employment costs. However, there is no automatic right to support from the Access to Work scheme – this is subject to an assessment when an application for support is made by the disabled person.
8.20 The Access to Work scheme may assist an employer to decide what steps to take. If financial assistance is available from the scheme, it may also make it reasonable for an employer to take certain steps which would otherwise be unreasonably expensive. However, Access to Work does not diminish any of an employer’s duties under the Act. In particular:
· the responsibility for making a reasonable adjustment is the responsibility of the employer – even where Access to Work is involved in the provision of advice or funding in relation to the adjustment · it is likely to be a reasonable step for the employer to assist a disabled person in making an application for assistance from Access to Work and to provide ongoing administrative support (by completing claim forms, for example), and · it may be unreasonable for an employer to decide not to make an adjustment if the decision is based on the cost of the adjustment but before it is known if financial assistance for it is available from Access to Work or another source.
Further information about what the Access to Work scheme can offer, the scheme’s eligibility requirements, and how to apply, is set out in Appendix C.
Confidential information
8.21 The extent to which an employer is entitled to let other staff know about an employee’s disability will depend partly on the terms of employment. An employer could be discriminating against the employee by revealing such information if the employer would not reveal similar information about another person for an equally legitimate management purpose; or if the employer revealed such information without consulting the individual, instead of adopting the usual practice of talking to an employee before revealing personal information about him. Employers also need to be aware that they have obligations under the Data Protection Act in respect of personal data.
8.22 However, as noted at paragraph 5.22, sometimes a reasonable adjustment will not work without the co-operation of other employees. In order to secure such co-operation, it may be necessary for the employer to tell one or more of a disabled person’s colleagues (in confidence) about a disability which is not obvious. This may be limited to the disabled person’s supervisor, or it may be appropriate to involve other colleagues, depending on the nature of the disability and the reason they need to know about it. In any event, an employer must not disclose confidential details about an employee without his consent. A disabled person’s refusal to give such consent may impact upon the effectiveness of the adjustments which the employer is able to make or its ability to make adjustments at all.
8.23 The Act does not prevent a disabled person keeping a disability confidential from an employer. But keeping a disability confidential is likely to mean that unless the employer could reasonably be expected to know about it anyway, the employer will not be under a duty to make a reasonable adjustment. If a disabled person expects an employer to make a reasonable adjustment, he will need to provide the employer – or someone acting on its behalf - with sufficient information to carry out that adjustment.
Termination of employment
8.24 Where a disabled person is dismissed or is selected for redundancy or for compulsory early retirement (including compulsory ill-health retirement), the employer must ensure that the disabled person is not being discriminated against. It is likely to be direct discrimination if the dismissal or selection is made on the ground of disability (see paragraph 4.5). If the dismissal or selection is not directly discriminatory, but is made for a reason related to the disability, it will amount to disability-related discrimination unless the employer can show that it is justified. The reason would also have to be one which could not be removed by any reasonable adjustment.
8.25 When setting criteria for redundancy selection, employers should consider whether any proposed criterion would adversely impact upon a disabled employee. If so, it may be necessary for the employer to make reasonable adjustments. For example, it is likely to be a reasonable adjustment to discount disability-related sickness absence when assessing attendance as part of a redundancy selection scheme. Some employers use ‘flexibility’ as a selection criterion for redundancy (for example, willingness to re-locate or to work unpopular hours, or ability to carry out a wide variety of tasks). An employer should carefully consider how to apply this criterion to a disabled employee as it might be discriminatory.
8.26 Where the dismissal of a disabled person is being considered for a reason relating to that person’s conduct, the employer should consider whether any reasonable adjustments need to be made to the disciplinary or dismissal process. In addition, if the conduct in question is related to the employee’s disability, that may be relevant in determining the sanction which it is appropriate to impose.
8.27 [s 4(5)] A disabled person will be taken to have been dismissed for the purposes of the Act if:
· he is expressly dismissed, or · the period for which he is employed expires without his employment being immediately renewed on the same terms, or · he gives notice, or does some other act to bring his employment to an end in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct (this is known as ‘constructive dismissal’).
After the termination of employment
8.28 [s 16A(3)] Where a disabled person’s employment has come to an end, the Act says that it will still be unlawful for his former employer:
· to discriminate against him by subjecting him to a detriment, or · to subject him to harassment
if the discrimination or harassment arises out of the employment which has come to an end and is closely connected to it.
8.29 [s 55] It is also unlawful to victimise a person (whether or not he is disabled) after his employment has come to an end (see paragraphs 4.33 to 4.36).
8.30 [s 16A(4)-(6)] An employer’s duty to make reasonable adjustments may also apply in respect of a former employee who is a disabled person. This will be the case where:
· the disabled person is placed at a substantial disadvantage in comparison with other former employees:
a. by a provision, practice or criterion applied by the employer to the disabled person in relation to any matter arising out of his former employment, or b. by a physical feature of premises occupied by the employer, and
· the employer either knows, or could reasonably be expected to know, that the former employee in question has a disability and is likely to be affected in this way.
8.31 The former employees with whom the position of the disabled person should be compared must be people who are not disabled, but who are former employees of the same employer. If it is not possible to identify an actual comparator for this purpose, then a hypothetical comparator may be used (see paragraph 4.18).
8.32 The principles relating to post-termination discrimination also apply to other relationships covered by Part 2, and to the relationship between a provider of employment services and its former clients. These relationships are considered in the following chapters.
Introduction
9.1 The preceding chapters focus on discrimination against employees. However, as noted at paragraph 3.11, Part 2 of the Act also applies to certain occupations. This chapter explains the relevant provisions.
9.2 The following paragraphs explain the provisions of Part 2 which focus specifically on the occupations in question. In other respects, however, the employment provisions of the Act apply in the usual way. So, where appropriate, regard should be had to the matters concerning recruitment and retention which are explained in Chapters 7 and 8; occupational pension schemes and group insurance services (Chapter 10); adjustments to premises (Chapter 12); and to the other relevant issues (Chapter 13).
Discrimination against contract workers
What does the Act say about contract workers?
9.3 [s 4B(1)] The Act says that it is unlawful for a ‘principal’ to discriminate against a disabled contract worker:
· in the terms on which he is allowed to do ‘contract work’ · by not allowing him to do, or continue to do, contract work · in the way it affords him access to, or by failing to afford him access to, benefits in relation to contract work, or · by subjecting him to any other detriment.
9.4 [s 4B(2) & s 55] The Act also says that it is unlawful for a principal to subject a disabled contract worker to harassment or to victimise any contract worker, whether or not he is disabled.
9.5 [s 4B(9)] For this purpose, ‘contract work’ is work which an individual carries out for a person (a ‘principal’) who hires him under a contract made with his employer. Usually, that contract is made directly between the principal and the contract worker’s employer, (which is generally an employment business), but this is not always the case. Provided that there is an unbroken chain of contracts between the individual and the end-user of his services, that end-user is a principal for the purposes of the Act, and so the individual is a contract worker.
9.6 The effect of the Act is that, where a person is a principal for the purposes of the Act, he is treated as if he were, or would be, the actual employer of the disabled contract worker. Therefore, the same principles relating to discrimination apply to a principal as to an employer.
How does the duty to make reasonable adjustments apply in respect of disabled contract workers?
9.7 [s 4B(6)] The duty to make reasonable adjustments applies to a principal in the same way as it applies to an employer.
9.8 However, in deciding whether any, and if so, what, adjustments would be reasonable for a principal to make, the period for which the disabled contract worker will work for the principal is important. It might well be unreasonable for a principal to have to make certain adjustments if the worker will be with the principal for only a short time.
Does this mean that a principal has the same duties to make adjustments as the employer of a disabled contract worker?
9.9 In the case of a disabled contract worker, both his employer and the principal to whom he is supplied may separately be under a duty to make reasonable adjustments.
9.10 [s4A(1) & s 4B(4) & (5)] A disabled contract worker’s employer will have to make reasonable adjustments if the contract worker is substantially disadvantaged by the employer’s own premises – or by a provision, criterion or practice applied by it. The Act says that the employer will also have to make reasonable adjustments where the contract worker is likely to be substantially disadvantaged by the premises – or by a provision criterion or practice – of all or most of the principals to whom he might be supplied. This duty only arises if the contract worker is likely to be affected in this way each time he is supplied for work. The employer would have to make reasonable adjustments to overcome the disadvantage wherever it might arise, rather than taking separate steps in relation to each principal.
9.11 [s 4A(1) applied by s 4B(6) & (7)] A principal has the same duties to make reasonable adjustments as a disabled contract worker’s employer, but does not have to make any adjustment which the employer should make. So, in effect, the principal is responsible for any additional reasonable adjustments which are necessary solely because of its own arrangements or premises.
9.12 It would be reasonable for a principal and the employer of a contract worker to co-operate with any steps taken by the other to assist the contract worker. It is good practice for the principal and the employer to discuss what adjustments should be made – and who should make them.
What about Workstep?
9.13 These arrangements also apply to the Workstep scheme (formerly known as the Supported Placement Scheme) operated by Jobcentre Plus for severely disabled people. The ‘contractor’ under the scheme (usually a local authority or voluntary body) is the equivalent of the contract worker’s own employer, and the ‘host employer’ is the equivalent of the principal. A local authority can even be both the contractor and the host employer at the same time (as can a voluntary body).
Discrimination against office holders
Who are office holders?
9.14 [s 4C] Examples of office holders include some company directors, judges, and chairmen or members of non-departmental public bodies. What the holders of such offices or posts have in common is that they are not regarded as ‘employees’ by the law, even though they may be similar to employees in providing services personally under the direction of another in return for remuneration. The Act gives specific protection to such office holders against discrimination if they are not otherwise protected under Part 2. This protection extends to applicants for such appointments and applies also to office holders appointed by, or on the recommendation of, the Government (including the devolved administrations for Scotland and Wales), or subject to its approval. However, it does not extend to the holders of political office.
What does the Act say about office holders?
9.15 [s 4D(1)] The Act says that, in relation to an appointment to such an office or post, it is unlawful to discriminate against a disabled person:
· in the arrangements which are made to determine who should be offered the appointment · in the terms on which the appointment is offered, or · by refusing to offer him the appointment.
9.16 [s 4D(2)] In addition, where the appointment is made on the Government’s recommendation (or is subject to its approval) the Act says that it is unlawful to discriminate against a disabled person:
· in the arrangements which are made to determine who should be recommended or approved, or · in making or refusing to make a recommendation, or in giving or refusing to give approval.
9.17 [s 4D(3)] The Act also says that it is unlawful, in relation to a disabled person who has been appointed to such an office or post, to discriminate against him:
· in the terms of the appointment · in the opportunities which are afforded (or refused) for promotion, a transfer, training or receiving any other benefit · by terminating the appointment, or · by subjecting him to any other detriment in relation to the appointment.
9.18 [s4D(4) & s 55] In addition, the Act says that it is unlawful to subject a disabled person to harassment if he is an office holder, or if he is seeking or being considered for an appointment (or a related Government recommendation or approval). It is also unlawful to victimise such a person, whether he is disabled or not.
9.19 [s 4D(5)] As far as benefits are concerned, the Act mirrors the position in respect of benefits to employees (see paragraphs 8.9 to 8.12).
9.20 [s 16B] The Act gives the DRC power to take action in respect of a discriminatory advertisement for appointment to an office or post (see paragraphs 13.28 to 13.30). This mirrors the DRC’s power in respect of advertisements for employment (see paragraphs 7.12 and 7.13).
How does the duty to make reasonable adjustments apply in respect of office holders?
9.21 [s 4E(1)] Part 2 also requires reasonable adjustments to be made for disabled people holding relevant offices or posts, or seeking such appointments. The duty relates to any provision, criterion or practice applied by or on behalf of the relevant person (see paragraph 9.22), and to any physical feature of premises under the control of such a person where the functions of the office or post are performed.
Who needs to avoid discriminating against office holders?
9.22 [s 4F(2)] The effect of the Act is to give a disabled person holding a relevant office or post, or seeking or being considered for appointment, similar rights to those of an employee or job applicant. In the employment context, it is clearly the employer who has the obligations under the Act. However, in relation to office holders, the person on whom the duties are imposed (‘the relevant person’) depends on the circumstances. It may be:
· the person with power to make the appointment · the person or body with power to recommend or approve the appointment · the person with power to determine the terms or working conditions of the appointment (including any benefit or physical feature), or · the person with power to terminate the appointment.
Discrimination against police officers
9.23 [s64A] Not all police officers are regarded as ‘employees’ in law. However, the Act says that all police officers and police cadets count as employees for the purposes of Part 2. As a result, disabled police officers and police cadets (and disabled people applying to join the police service) have the same rights as other employees and job applicants under Part 2. These include rights in respect of harassment and victimisation (the latter extending to non-disabled people as well as to those who are disabled).
9.24 These rights – which also apply in respect of special constables and small police forces such as the British Transport Police – are enforceable against the relevant chief officer of police or police authority (or the relevant chief constable in the case of Scottish police forces). In addition, a chief officer of police (or chief constable) is liable under the Act for the discriminatory acts of one police officer (or cadet) committed against another.
Discrimination against partners in firms
What does the Act say about partners in firms?
9.25 [s 6A(1)] The Act says that it is unlawful for a firm, in relation to a position as a partner in the firm, to discriminate against a disabled person:
· in the arrangements it makes to determine who should be offered that position · in the terms on which it offers him that position · by refusing or deliberately omitting to offer him that position, or · where the disabled person is already a partner in the firm: a. in the way it affords him access to any benefits, or by refusing or deliberately omitting to afford him access to them, or b. by expelling him from the partnership, or subjecting him to any other detriment.
9.26 [s 6A(2) & s 55] The Act also says that it is unlawful for a firm to subject a disabled person who is an existing or prospective partner to harassment, or to victimise any existing or prospective partner, whether or not he is disabled.
9.27 [s 6C] The effect of the Act is to give a partner or applicant for partnership similar rights against the firm to those of an employee or job applicant against an employer. The same applies where people are proposing to form themselves into a partnership and a disabled person is a prospective partner. Limited liability partnerships are also covered.
9.28 [s 6A(3)] As far as benefits are concerned, (and in common with the rules which apply to office holders), the Act mirrors the position in respect of benefits to employees (see paragraphs 8.9 to 8.12).
9.29 [s 16B] The Act gives the DRC power to take action in respect of a discriminatory advertisement for any partnership in a firm (see paragraphs 13.28 to 13.30). This mirrors the DRC’s power in respect of advertisements for employment (see paragraphs 7.12 and 7.13).
How does the duty to make reasonable adjustments apply in respect of partners in firms?
9.30 [s 6B(1)] The duty to make reasonable adjustments applies to a firm in the same way as it applies to an employer. It relates to any provision, criterion or practice applied by or on behalf of the firm and to any physical feature of premises occupied by the firm.
9.31 [s 6B(4)] Although, in general, the cost of making a reasonable adjustment cannot be passed on to the disabled person concerned, where a firm is required to make adjustments in respect of a disabled partner or prospective partner, the cost of doing so is an expense of the firm. Provided that the disabled person is, or becomes, a partner in the firm, he may be required to make a reasonable contribution towards this expense. In assessing the reasonableness of any such contribution, particular regard should be had to the proportion in which the disabled partner is entitled to share in the firm’s profits.
Discrimination against barristers and advocates
What does the Act say about barristers and advocates?
9.32 [s 7A(1)] The Act says that, in England and Wales, it is unlawful for a barrister or a barrister’s clerk, in relation to any offer of a pupillage or tenancy, to discriminate against a disabled person:
· in the arrangements which are made to determine to whom it should be offered · in respect of any terms on which it is offered, or · by refusing or deliberately omitting to offer it to him.
9.33 [s 7A(2)] The Act also says that it is unlawful for a barrister or barrister’s clerk, in relation to a disabled pupil or tenant in the set of chambers in question, to discriminate against him:
· in respect of any terms applicable to him as a pupil or tenant · in the opportunities for training, or gaining experience, which are afforded or denied to him · in the benefits which are afforded or denied to him · by terminating his pupillage or by subjecting him to any pressure to leave the chambers, or · by subjecting him to any other detriment.
9.34 [s 7A(3) & s 55] In addition, the Act says that it is unlawful for a barrister or barrister’s clerk to subject a disabled person who is a pupil or tenant in a set of chambers (or who has applied to be a pupil or tenant) to harassment, or to victimise such a person, whether he is disabled or not. In effect, therefore, barristers and pupils have rights under Part 2 which are similar to the rights of employees.
9.35 [s 7A(5)] Barristers who are permitted to practise from a set of chambers, but who are not tenants (barristers who do this are colloquially known as ‘squatters’), have the same rights under Part 2 as barristers who are tenants.
9.36 [s 7C & s 55] In Scotland, advocates do not practise in sets of chambers. However, the Act makes it unlawful for a Scottish advocate to discriminate against a disabled pupil or to subject him to harassment. It is also unlawful to victimise a pupil, whether or not he is disabled. Disabled pupils (and prospective pupils) in Scotland have rights under Part 2 which are equivalent to those of their counterparts in England and Wales.
9.37 [s 7A(4) & s 7C(4)] The Act also says that it is unlawful to discriminate against a disabled person in relation to the giving, withholding or acceptance of instructions to a barrister or an advocate. It would therefore be unlawful for a solicitor to refuse to instruct a barrister or an advocate merely because they have a disability.
9.38 [s 16B] The Act gives the DRC power to take action in respect of a discriminatory advertisement for any tenancy or pupillage (see paragraphs 13.28 to 13.30). This mirrors the DRC’s power in respect of advertisements for employment (see paragraphs 7.12 and 7.13).
How does the duty to make reasonable adjustments apply in respect of barristers and advocates?
9.39 [s 7B(1)] In England and Wales, the duty to make reasonable adjustments applies to barristers and barrister’s clerks in the same way as it applies to an employer. It relates to any provision, criterion or practice applied by or on behalf of a barrister or barrister’s clerk and to any physical feature of premises occupied by a barrister or by a barrister’s clerk. Nevertheless, although it is unlawful to discriminate against a disabled barrister or pupil in relation to the giving, withholding or acceptance of instructions, it should be noted that a solicitor is under no duty to make a reasonable adjustment in relation to a disabled barrister whom he instructs.
9.40 [s 7B(2)] Where a group of barristers practise together in a set of chambers, the duty to make reasonable adjustments applies to each individual barrister who has responsibility for any disadvantage to the disabled person if the adjustment is not made. Chambers need to consider whether their practices could disadvantage disabled pupils and tenant barristers. For example, the practice of writing messages on scrap paper is likely to disadvantage visually impaired members of chambers, and may need to be altered for individual disabled tenants and pupils.
9.41 [s 7D] The application of the duty to Scottish advocates is slightly more restricted, in recognition of the fact that Scottish advocates do not practise in sets of chambers, but tend to practise from home. Disabled pupils (and prospective pupils) in Scotland do have rights in respect of reasonable adjustments which are equivalent to those of their counterparts in England and Wales. However, where a disabled pupil is engaged by an advocate who practises from home, that may affect the extent of the adjustments which it is reasonable for the advocate to make (see paragraph 5.41).
Discrimination in relation to practical work experience
What does the Act say about practical work experience?
9.42 [s 14C(1)] The Act says that it is unlawful for a ‘placement provider’ to discriminate against a disabled person who is seeking or undertaking a work placement:
· in the arrangements he makes for determining who should be offered a work placement · in the terms on which he affords him access to any work placement or any facilities concerned with such placement
· by refusing or deliberately omitting to afford him such access
· by terminating his placement
· by subjecting him to any other detriment during the placement
9.43 [s 14C(2) & s 55] The Act also says that it is unlawful for a placement provider to subject a disabled person to harassment if he is providing a work placement to that person, or if that person has applied to him for a work placement, or to victimise such a person, whether he is disabled or not.
9.44 [s 14C(4)] For these purposes, a work placement is practical work experience undertaken for a limited period for the purposes of a person’s vocational training. A placement provider is any person who provides a work placement to a person whom he does not employ.
9.45 [s 14C(3)] The above applies only to the extent that discrimination in relation to practical work experience is not the subject of other provisions of the Act, such as those relating to discrimination in the provision of goods, facilities and services, or to discrimination in education. The DRC has issued separate codes of practice giving guidance on the operation of Part 3 and Part 4 of the Act (see Appendix C for details).
9.46 [s 16B] The Act gives the DRC power to take action in respect of a discriminatory advertisement for any work placement (see paragraphs 13.28 to 13.30). This mirrors the DRC’s powers in respect of advertisements for employment (see paragraphs 7.12 and 7.13).
How does the duty to make reasonable adjustments apply in respect of work placements?
9.47 [s 14D] The duty to make reasonable adjustments applies to a placement provider in the same way as it applies to an employer. The duty applies in respect of any provision, criterion or practice applied by or on behalf of the placement provider and to any physical feature of premises occupied by the provider.
9.48 The considerations outlined in Chapter 5 apply in determining what adjustments it is reasonable for a placement provider to make. However, the length of the placement will also be a relevant factor. Although many adjustments cost little or nothing to make, it is unlikely to be reasonable for a placement provider to spend significant sums on individually-tailored adjustments in respect of short placements. Nevertheless, some disabled students undertaking work placements may be able to fund adjustments out of their Disabled Students Allowance. Alternatively, some disabled people may already have equipment which they are prepared to use in the workplace. In that case, the placement provider may have to make reasonable adjustments in order to facilitate the use of that equipment (for example, by ensuring that it is transported and stored safely, and is adequately insured whilst at the workplace).
9.49 An organisation which sends a disabled person on a work placement may also have a duty under the Act to make reasonable adjustments in respect of that person.
9.50 It would be reasonable to expect the sending organisation and the placement provider to co-operate to ensure that appropriate adjustments are identified and made. It is good practice for a placement provider to ask a disabled person about reasonable adjustments before the placement begins, and to allow him to visit the workplace in advance to see how his needs can be addressed. Once a particular adjustment has been identified, it would be reasonable for the sending organisation and the placement provider to discuss its implementation in the light of their respective obligations under the Act.
Introduction
10.1 Chapter 8 explains how the Act protects disabled people from discrimination in employment. In particular, paragraph 8.9 makes the point that employers must not discriminate in the way that they make benefits available to disabled employees where those benefits are available to other employees. Some of the most significant benefits which employers commonly make available to their employees relate to occupational pensions and group insurance schemes. This chapter explains what the Act says about discrimination in providing these particular types of benefit. This includes discrimination by the employer and by others concerned with providing the benefit in question.
Occupational pension schemes
What does the Act say about employers?
10.2 As far as employers are concerned, Part 2 does not distinguish between discrimination in providing pensions and discrimination in relation to other benefits. This is subject to one qualification (explained at paragraphs 10.13 and 10.14) concerning the remedies available for discrimination under Part 2.
10.3 [s 4(2) & s 4A(1)] Thus, an employer must not discriminate against a disabled person in the opportunities it affords him for receiving pension benefits, or by refusing him, or deliberately not affording him, any such opportunity. The duty to make reasonable adjustments applies to the manner in which employers make pensions available to a disabled employee.
10.4 To the extent that an employer has control over matters relating to pension benefits afforded to employees, the usual principles about discrimination will apply under Part 2. As explained in Chapter 4, less favourable treatment of a disabled person in relation to such benefits may amount to direct discrimination or to disability-related discrimination. Discrimination may also occur because of a failure to comply with a duty to make a reasonable adjustment to any provision, criterion or practice in relation to pension benefits in respect of a disabled person.
10.5 In relation to a well established pension scheme, the application of provisions, criteria and practices relating to pension benefits is likely to be controlled by the trustees or managers of the pension scheme. However, when new schemes are set up, employers are likely to have substantial input in relation to such matters (for example, setting scheme rules), and in doing so they must not discriminate against disabled people.
What does the Act say about pension scheme trustees and managers?
10.6 [s 4G(3)] Part 2 contains provisions which relate specifically to discrimination against disabled people by the trustees or managers of occupational pension schemes. The principal effect of these provisions is to make it unlawful for pension scheme trustees or managers to contravene a ‘non-discrimination rule’ which is deemed to be included in every occupational pension scheme.
10.7 This non-discrimination rule effectively makes the trustees and managers of the scheme subject to the general provisions of Part 2 by doing two things:
· [s 4G(1)] First, the non-discrimination rule prohibits pension scheme trustees or managers from discriminating against a disabled person who is a member or prospective member of the scheme in carrying out any of their functions in relation to the scheme. This includes functions relating to the admission and treatment of members of the scheme. · Second, the rule prohibits the trustees or managers from subjecting such a person to harassment in relation to the scheme.
[s 4K(2)] The Act sets out the circumstances in which a person counts as a prospective member of a pension scheme.
10.8 [s 4G(2) & (5)] The Act says that the other provisions of a pension scheme have effect subject to the non-discrimination rule explained above. This means that where there is a conflict between the non-discrimination rule and a rule of the pension scheme, the non-discrimination rule prevails. Thus, pension scheme trustees and managers do not have to act in accordance with a scheme rule which would produce a discriminatory result. The Act also ensures that pension scheme trustees and managers have power to make alterations to the scheme in order to make the scheme conform with the non-discrimination rule.
10.9 [s 4H] The duty to make reasonable adjustments applies to pension scheme trustees and managers in the same way as it applies to an employer. The duty is owed to disabled people who are members or prospective members of the scheme, and relates to any provision, criterion or practice (including a scheme rule) applied by or on behalf of the trustees or managers and any physical feature of premises which they occupy. The Act refers to making alterations to the rules of the pension scheme as an example of a reasonable adjustment.
10.10 [s 4G(4) & s 4K] Although the statutory non-discrimination rule does not apply in relation to rights accrued and benefits payable in respect of periods of service prior to 1 October 2004, it does apply to communications about such rights or benefits with members or prospective members of the scheme. So far as communications generally are concerned, both the non-discrimination rule and the duty to make reasonable adjustments apply in relation to disabled people who are entitled to, and currently receiving, dependants’ or survivors’ benefits under a pension scheme as they do in relation to disabled pensioner members of the scheme. The same applies in respect of pension credit members of the scheme. Communications include the provision of information and the operation of a dispute resolution procedure, and reasonable adjustments could involve providing information in accessible formats (such as large print, Braille, tape or disc), or providing a sign language interpreter for a meeting.
How can disabled people complain about discrimination in relation to occupational pension schemes?
10.11 [s 17A(1)] The Act says that if a disabled person believes that he has been unlawfully discriminated against in relation to an occupational pension scheme, he may make an application to an employment tribunal. This is the case whether the allegation of discrimination is made against the employer or against the trustees or managers of the pension scheme. Chapter 13 gives more information about making a claim under Part 2. However, the Act contains additional provisions which apply specifically to complaints relating to occupational pension schemes. These provisions are explained in the following paragraphs.
10.12 [s 4I] When a disabled member or prospective member of an occupational pension scheme complains to an employment tribunal that he has been treated unlawfully under Part 2 by the trustees or managers of the scheme, the employer is treated as a party to the proceedings. The employer is therefore entitled to appear at the tribunal hearing and to make representations to the tribunal. This is because the employer may be required (as a matter of obligation or practice) to fund any award made against the trustees or managers of the scheme.
10.13 [s 4J(1)] In addition, special rules may apply in respect of the remedies available when a complaint brought by a disabled person against the trustees or managers (or a complaint against the employer itself) is successful. Provided that the complainant is not a pensioner member of the scheme, these rules will apply to such a complaint if it relates to:
· the terms on which people become members of an occupational pension scheme, or · the terms on which members of the scheme are treated.
10.14 [s 4J(2)-(4)] In such circumstances, the Act modifies the usual rules governing the remedies which may be granted by an employment tribunal when it upholds a complaint (see paragraphs 13.14 to 13.16). In particular:
· the tribunal may make a declaration that the complainant has a right to be admitted to the scheme or to membership of the scheme without discrimination in respect of a specified period, but · the only compensation which the tribunal may award is compensation for injury to feelings and compensation of the kind described in paragraph 13.16.
10.15 A complaint about discrimination by pension scheme trustees or managers may also be made through the pensions dispute resolution mechanism which every occupational pension scheme is required to have for resolving disputes between individual pension scheme members and the trustees or managers. Information about the scheme should give details about this. The Pensions Ombudsman also has power to investigate complaints in certain circumstances. Details about the Pensions Ombudsman, and about the Pensions Advisory Service (which can provide an advice and conciliation service for members of the public who have problems with their occupational pensions), are given in Appendix C.
Group insurance services
What does the Act say about employers?
10.16 [s 4(2) & s 4A(1)] As far as employers are concerned, Part 2 does not distinguish between discrimination in providing benefits relating to insurance and discrimination in relation to other benefits. Thus, an employer must not discriminate against a disabled person in the opportunities it affords him for receiving insurance-related benefits, or by refusing him, or deliberately not affording him, any such opportunity. The duty to make reasonable adjustments applies to the manner in which employers make insurance services available to a disabled employee. However, it should be noted that the employer’s role is often limited to explaining the availability of group insurance services and to proposing employees to the insurer for cover under a group policy.
What does the Act say about group insurers?
10.17 [s 18] The Act says that, where an insurer agrees with an employer to provide insurance services to its employees, or to give its employees an opportunity to receive such services, it is unlawful for the insurer to discriminate against a disabled person:
· who is an employee of that employer and who, by virtue of his employment, would ordinarily be eligible to receive such services, or · who has applied for, or is contemplating applying for, such employment.
10.18 [s 18(3)] The insurance services to which these principles apply are those for the provision of benefits in respect of:
· termination of service · retirement, old age or death, or · accident, injury, sickness or invalidity.
When does a group insurer discriminate against a disabled person?
10.19 [s 18(2)] Although discrimination by employers in providing insurance-related benefits is defined in the usual way for the purposes of Part 2 (as explained in Chapter 4), the circumstances in which insurers will be in breach of Part 2 are defined differently. For the purposes of Part 2, an insurer is only taken to discriminate against a disabled person if it acts in a way which would amount to discrimination under Part 3 (which deals with discrimination by the providers of goods, facilities or services). For this purpose, the insurer’s actions have to be assessed as if the insurer were providing the service in question to members of the public, and as if the disabled person were receiving the service (or trying to secure its provision) as a member of the public.
10.20 Part 3 makes it unlawful to discriminate against a disabled person for a disability-related reason in respect of the provision of goods, facilities or services to members of the public unless the conduct can be justified: for example, by reference to actuarial evidence. However, within the confines of the Code it is not possible to explain the operation of Part 3 in detail. The DRC has issued a separate code of practice giving guidance in this regard (see Appendix C for details).
What does the Act say about bringing claims for discrimination in relation to group insurance services?
10.21 [s 17A(1)] The Act says that if a disabled person believes that he has been unlawfully discriminated against in relation to group insurance services, he may make an application to an employment tribunal. This is the case whether the allegation of discrimination is made against the employer or against the group insurer. Chapter 13 gives more information about making a claim under Part 2.
Introduction
11.1 Although the operation of Part 3 of the Act is mentioned in Chapter 10 (in the context of group insurance services), the explanation of the law in other chapters of the Code is confined to the Act’s provisions on employment and occupation – which are in Part 2. However, as the purpose of the Code is to give practical guidance on how to prevent discrimination against disabled people in employment or when seeking employment, it is also necessary to look at what the Act says about the provision of employment services. Such services are covered by Part 3, which relates to discrimination in the provision of goods, facilities or services.
11.2 It is not the purpose of this chapter to give a detailed explanation of how the provisions of Part 3 work – but simply to summarise their application to employment services. For a full explanation of the operation of Part 3, reference should be made to the separate code of practice (the Part 3 Code) issued by the DRC in this regard (see Appendix C for details).
What are employment services?
11.3 [s 21A(1)] For the purposes of Part 3, ‘employment services’ are:
· vocational guidance or training services, or · services designed to assist people to find or keep jobs, or to establish themselves in an occupation in a self-employed capacity.
11.4 Employment services therefore include services provided by an employment agency or employment business. This includes employment services provided by Jobcentre Plus and other schemes that assist people to find work. Many people who receive employment services (or who seek the provision of such services) are engaged in, or seeking, contract work. This is particularly true of people who look for work by using the services of employment businesses. The Act gives rights to disabled contract workers not only in relation to the provision of employment services, but also in relation to the contract work itself. What the Act says about contract workers is explained in paragraphs 9.3 to 9.13.
What is unlawful under the Act?
Discrimination in providing employment services
11.5 [s 19 applied by s 21A(4)] Where a person or body is concerned with the provision of employment services to the public, or a section of the public, the Act says that it is unlawful for it to discriminate against a disabled person:
· by refusing to provide (or deliberately not providing) to the disabled person any such service which it provides (or is prepared to provide) to members of the public
· in the standard of service which it provides to the disabled person or the manner in which it provides the service
· in the terms on which it provides the service to the disabled person.
11.6 It is irrelevant whether or not a charge is made for the provision of the service. More detailed guidance on the kinds of treatment which are unlawful in relation to the provision of services is set out in Chapter 3 of the Part 3 Code.
11.7 It is also unlawful for a provider of employment services to discriminate against a disabled person:
· in failing to comply with a duty to make reasonable adjustments (under section 21 of the Act) to a practice, policy or procedure in circumstances in which the effect of that failure is to place the disabled person at a substantial disadvantage in comparison with people who are not disabled in relation to the provision of the service · in failing to comply with a duty to make reasonable adjustments (under section 21 of the Act) in relation to a physical feature in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service, or · in failing to comply with a duty under that section to provide an auxiliary aid or service in the same circumstances.
The duties to make reasonable adjustments under section 21 are explained in paragraphs 11.15 to 11.19.
Harassment
11.8 [s 21A(2)] It is unlawful for a provider of employment services to subject a disabled person to harassment if that person is someone to whom such services are being provided, or who has requested such services from the provider.
Victimisation
11.9 [s 55] It is also unlawful for a provider of employment services to victimise a person (whether or not he is disabled).
Other unlawful acts
11.10 [s 16A - 16C] The provisions which apply under Part 2 in respect of relationships which have come to an end apply equally in respect of employment services, as do the provisions in respect of discriminatory advertisements. In addition, the sanctions which apply under Part 2 in respect of unlawful instructions or pressure to discriminate apply in respect of similar conduct relating to employment services.
What amounts to discrimination?
11.11 [s20 applied by s 21A(5)] The Act says that, in the circumstances described in paragraphs 11.5 and 11.7, discrimination can occur in different ways.
11.12 One way in which discrimination occurs is when treatment of a disabled person by a provider of employment services:
· is for a reason related to his disability · the treatment is less favourable than the way in which the service provider treats (or would treat) others to whom that reason does not (or would not) apply, and · the service provider cannot show that the treatment is justified.
11.13 Discrimination also occurs when a provider of such services fails to comply with a duty to make reasonable adjustments to a practice, policy or procedure.
11.14 In addition, discrimination occurs when a provider of employment services:
· fails to comply with a duty to make reasonable adjustments in relation to a physical feature or a duty to provide an auxiliary aid or service, and · cannot show that the failure is justified.
What is the duty to make reasonable adjustments?
11.15 [s 21] The duty to make reasonable adjustments under Part 3 requires service providers to take positive steps to make their services accessible to disabled people. What is required is set out in section 21, and comprises a series of duties falling into three main areas:
· changing practices, policies and procedures (such as a policy of not admitting assistance dogs) · providing auxiliary aids and services (such as information in accessible formats) · overcoming a physical feature (such as stairs) by a. removing the feature, or b. altering it, or c. avoiding it, or d. providing services by alternative methods.
11.16 [s 21 applied by s 21A(6)] Where employment services are offered to the public, the provider of those services may have to make a reasonable adjustment if:
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