EQUALITY ACT 2010 (Disability Discrimination Act 1995/2005)
The Equality Act 2010 and the Disability Discrimination Act (DDA) can and does have an affect on you as a CRPS patient or chronic pain sufferer on a day to day basis.
The purpose of bringing in the Equality Act 2010 was so it could bring together a number of existing laws into one place so that it is easier to use.
What Is The Disability Discrimination Act 1995/2005 (DDA)?
The DDA was passed in 1995 and the idea behind it was to help disabled people with discrimination in their normal everyday lives. However you need to remember that you don’t actually have to be ‘disabled’ to come under the DDA. The Act also covers health problems such as diabetes, ME, arthritis, anxiety, depression, back problems...
It also covers conditions if they affected your daily activities for example speech, hearing, eyesight, ability to move around, ability to lift, carry or move ordinary objects, physical co-ordination, memory…
The Act was amended by the Disability Discrimination Act 2005 and in this changes were made which included an important change by creating a legal duty for all public authorities to encourage or publicise equality for disabilities.
However… This act was repealed and replaced by the new EQUALITY ACT 2010 (UK except Northern Ireland.) Its basis is that there must be equal treatment in areas including disability, sexual orientation, race, marriage and civil partnership, age, religion or belief, sex and age. There also needs to be equal treatment in access to employment, public and private services.
EQUALITY ACT 2010
The Equality Act 2010 doesn’t simply protect a number of people with visible disabilities. It can also protect large numbers of people with invisible or hidden as well as visible disabilities. It may also protect those with temporary, but long-term, injuries or ill-health, who would not normally think of themselves or be considered by others as having a disability.
The Equality Act 2010 gathered together a large number of discrimination laws already written such as the Disability Discrimination laws. However there weren’t a huge number of changes actually made.
The laws on Indirect Discrimination was extended to apply to disability for the first time as was the introduction of some new provisions such as the prohibition on discrimination arising from disability.
Under the Equality Act 2010 people are not allowed to discriminate, harass or victimise another person because they have any of the protected characteristics as listed below.
There is also protection against discrimination where someone is perceived to have one of the protected characteristics or where they are associated with someone who has a protected characteristic.
Everyone in Britain is protected by the Equality Act 2010 and the ‘protected characteristics’ under the Act are (in alphabetical order):
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion and belief
- Sexual orientation
The DDA/Equality Act 2010 provides that if you have had a disability or are currently a disabled person then it is not lawful if you are discriminated in 5 main areas.
These 5 areas are:
- Access to goods, services and facilities
- Qualification bodies and trade organisations
- Buying, management or renting property or land
For those people who have learning disabilities, sensory impairment and more importantly mobility problems, the Act provided guidelines for trains, coaches and buses to set standards for accessing those vehicles.
Have you got on a bus, train or a coach recently? What were you thoughts on your ride? Were all your needs met? Most likely they weren’t wholly met, which isn’t what the Act wanted when it was drawn up.
Please send us your views on our transport system and what could be improved or removed.
Visit our DISABILITY ACCESS page to learn more about not only disability access issues but also how to get around when you have a disability, community transport, Blue Badge scheme and more.
A new paper was published on 24 March 2016 by the UK Government on ‘The Equality Act 2010: The impact on disabled people.’ As usual it is a very long document but an interesting read.
Legal Definition of Disabled Under Equality Act 2010
So what is the legal definition of a disabled person under the Equality Act 2010? The legal definition can be found under Section 6(1) of the Equality Act 2010 and it states:
“A person (P) has a disability if (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”
Act defines long-term in this context as having lasted, or being likely to last for at least 12 months or the rest of the person’s life. ‘Substantial’ means more than minor or trivial.
‘Impairment’ covers, for example, long-term medical conditions such as asthma and diabetes, and fluctuating or progressive conditions such as Rheumatoid Arthritis or Motor Neuron disease.
A mental impairment includes mental health conditions (such as bipolar disorder or depression), learning difficulties (such as dyslexia) and learning disabilities (such as autism and Down’s syndrome).
Some people, including those with cancer, multiple sclerosis and HIV/AIDS, are automatically protected as disabled people by the Equality Act 2010.
People with severe disfigurement will be protected as disabled without needing to show that it has a substantial adverse effect on day-today activities.
Schedule 1 part 1 provides guidance and you can get further clarification and information under the Equality Act 2010 (Disability) Regulations 2010, SI No. 2128 and in the Guidance on matters to be taken into account in determining questions relating to the definition of ‘disability’. This is available on the EHRC website.
Disability Discrimination Under Equality Act 2010
There are several forms of disability discrimination under the new Equality Act 2010 which include:
1: Failure to make reasonable adjustments
This is at the heart of disability discrimination law under the Equality Act 2010. Where any workplace practice or feature of the premises puts a disabled worker at a disadvantage, then the employer must make all adjustments which are reasonable to remove that disadvantage to the disabled worker.
2a: Direct discrimination
It is unlawful for an employer to treat the employee less favourably just because of their disability than s/he treats or would treat a person without that disability.
Provided the reason for the different treatment is the person’s disability, there is no defence. This concept is equivalent to that of direct discrimination because of race, sex, sexual orientation, religion and belief under the Equality Act 2010.
It is not disability discrimination against a non-disabled employee to treat a disabled worker more favourably because of their disability.
2b: Direct discrimination by association
It is also unlawful to treat the person less favourably because of the disability of someone else, eg someone with whom s/he is associated with. It is important not to misunderstand this.
It appears that there is no legal right under EU law or the Equality Act 2010 for a non-disabled employee to have reasonable adjustments to take care of disabled relatives.
Members with caring requirements, whether for disabled or non-disabled children, are most likely to rely on indirect sex discrimination law.
2c: Direct discrimination due to perceived disability
Due to the wording of the Equality Act 2010 section 13, it is thought to be unlawful to discriminate against a non-disabled employee because they are wrongly perceived to have a disability. It is unclear exactly what circumstances would fit such a claim.
3: Discrimination arising from disability (also abbreviated to DAFD)
It is unlawful to treat the employee unfavourably because of something arising in consequence of their disability. If the employer can prove that the treatment of the employee is a proportionate means of achieving a legitimate aim.
Harassment takes place where, for a reason that relates to the disabled employee’s disability or the disability of someone else, the harasser engages in unwanted conduct which has the purpose or effect of violating the employee’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
This concept is the same as for harassment relating to race, sex, age, sexual orientation, religion and belief.
5: Indirect discrimination
Indirect discrimination occurs where the employer applies a provision, criterion or practice generally, which puts a disabled employee and others who have the same disability at a particular disadvantage. It is not unlawful if the employer can prove that applying the provision, criterion or practice was a proportionate means of achieving a legitimate aim.
Indirect discrimination applies to the protected characteristics of race, sex, age, sexual orientation and religion and belief, but did not apply to disability under the DDA. It was introduced under the Equality Act 2010, but it will only in limited circumstances be needed, given the more flexible concept of reasonable adjustment, which applies only to disability.
This concept is the same in respect of all the protected characteristics. Essentially it occurs when the disabled person is punished or treated differently as a result of complaining about disability discrimination or complaining that the employer has not made reasonable adjustments. For example, the member raises a grievance about disability discrimination and is dismissed as a result.
It does not matter whether the member raised the issue formally or informally, in a grievance or in a tribunal case, on his/her own behalf or on behalf of a colleague who is disabled. The employer has a defence if the person’s allegation was false and made in bad faith.
7: Pre-employment disability or health questions (Equality Act 2010 Section 60)
The Equality Act 2010 Section 60 introduced a new ban on enquiries about health and disability before a job has been offered. Such enquiries were thought to be the main reason why disabled job candidates often failed to reach the interview stage and were also a disincentive in them applying for jobs.
With certain exceptions, employers are now not allowed to ask job candidates questions about their health or whether they have a disability until they have offered a job (on a conditional or unconditional basis) or put the candidate into a pool of successful candidates to be offered a job when one becomes available.
Employers are allowed to ask questions to find out whether the candidate will be able to undergo an interview or other job assessment or will need reasonable adjustments to that process.
However, questions about reasonable adjustments needed for the job itself should not be asked until after a job offer is made (unless relating to a function which is intrinsic to the job).
The Equality and Human Rights Commission (EHRC) can bring proceedings against an employer who makes unlawful pre-employment health enquiries.
Individuals can’t bring a claim based on the enquiry, but they can claim disability discrimination if they are refused the job and believe it is due to their disability. In any such direct discrimination claim, if the employer made an unlawful enquiry, it will shift the burden of proof.
You can find more information about pre-employment health questions under the Equality and Human Rights Commission website ‘Pre-Employment Health Questions’ page.
Under Section 60 of the Equality Quality Act 2010 there are only certain questions you are allowed to ask in regard to disability and reasonable adjustments.
- You can ask questions about disability at an early stage in the application process, so that you can establish whether an applicant will be able to comply with a requirement to undergo an assessment test, or to establish whether you must make reasonable adjustments for an applicant in relation to an assessment. For example, if you require applicants to sit an assessment on a desktop computer you can ask if they are able to do that or whether they require any auxilliary aids to do so (if they can be reasonably provided).
- You can ask questions about whether the applicant will be able to carry out functions that are intrinsic to the job (having made any reasonable adjustments), for example, whether an applicant has the necessary physical capabilities or physical fitness to do the job, or whether their health meets certain standards for legitimate safety reasons.
- You can also ask questions about disability in other limited situations, for example, for legitimate monitoring of the diversity of job applicants or if you need someone with a specific disability to do the job.
- But aside from those circumstances you can’t ask questions about the health of an applicant before offering him or her the job.
Employers must remember that it is not unlawful to offer an applicant a job that is conditional upon him or her passing an occupational health check. In this situation, if the results are that the successful candidate has a disability that affects his or her ability to do the job, the question will then be whether a reasonable adjustment can be made to deal with that.
If a reasonable adjustment cannot be made, it would then be legitimate to withdraw the job offer on the grounds that the applicant has not met the required condition.
Reasonable Adjustments for Disabled People
Service providers are required to make changes, where needed, to improve service for disabled customers or potential customers and employees. There is a legal requirement to make reasonable changes to the way things are done (such as changing a policy), to the built environment (such as making changes to the structure of a building to improve access) and to provide auxiliary aids and services (such as providing information in an accessible format, an induction loop for customers with hearing aids, special computer software or additional staff support when using a service).
Reasonable changes are required wherever disabled customers or potential customers would otherwise be at a substantial disadvantage compared with non-disabled people.
A substantial disadvantage is more than a minor or trivial disadvantage. Service providers cannot charge disabled customers for reasonable adjustments.
What is reasonable will depend on all the circumstances, including the cost of an adjustment, the potential benefit it might bring to other customers (ramps and automatic doors benefit customers with small children or heavy luggage, for example), the resources an organisation has and how practical the changes are.
The Equality Act 2010 requires that service providers must think ahead and take steps to address barriers that impede disabled people. In doing this, it is a good idea to consider the range of disabilities that your actual or potential service users might have.
You should not wait until a disabled person experiences difficulties using a service, as this may make it too late to make the necessary adjustment. (Government Equalities Commission)
Accessibility In The Workplace for Invisble Illness
An article by the Pain Doctor (27 May 2015 – ‘Accessibility For Invisible Illnesses in the Workplace) wrote about accessibility issues in the workplace for invisible illnesses such as CRPS and chronic pain.
The article gives some good and easy ways that employers can help invisible illness sufferers, they suggest:
Creating break rooms
Knowing the law
Offering tele-commuting options for employees
Talk to your employer
Know the law
Take care of yourself on the job
Do your best
Work from home
Another article for those in the USA is ‘How can I get Reasonable Accommodations for Chronic Pain?’ by Pain Doctor.
Employers only have the duty to make any relevant adjustments when they actually know, are aware or when they should have reasonably been aware you have a disability.
This is where it is difficult for CRPS sufferers and chronic pain sufferers because you don’t always have outward signs that are obvious e.g. the burning pain.
If you do go for a job interview with a possible new employer it is always best to inform them as soon as possible following you being told of your interview. Let them know your condition and more importantly how it affects you as a disability i.e. you can’t climb stairs, you can’t walk long distances etc.
You and your employer need to discuss their circumstances so that you can establish what is needed. However the question of what is a reasonable adjustment is an objective one. It does not mean you must comply with every requirement asked of you by the disabled person.
The issue will be what you can reasonably do to avoid any disadvantage entailed by his or her disability. For example, a disabled employee might request that you build a special ramp for wheelchair access to your offices.
Having considered this you might decide it to be not feasible in cost and practical terms to make structural alterations to the building, but you might decide that you can have a temporary ramp available and someone ready to assist with entry and exit to the building.
In doing so you would have complied with the law because you provided a workable solution that is reasonable in the circumstances. (Written by and Taken from Equalities Commission Office: Duty on employers to make reasonable adjustments)
When we talk of ‘reasonable‘ concerning any adjustments an employer makes it will all depend on the size of the company or business and what it does.
A lot of adjustments now that can be done won’t be that expensive but they don’t have to do more than what’s classed as reasonable. So if you work for a huge blue chip company that has over 1000 employees then making adjustments for them will not be as harsh as if it was a local firm with 10 employees.
Talk to the employer about any adjustments they are planning on making because even though people’s disabilities may look similar or the same their needs may be very different and the adjustments the employer wants to make may not be of benefit to you and your disability.
Reasonable Adjustments for Disabled In The Workplace
If you are still in work or are wanting to return to work and are seeking for a position then employers have the duty to make what is called reasonable adjustments in the workplace so disabled people are able to work, use the various facilities and get around the work place in ease.
Reasonable adjustments simply means that your employer must try and lesson or get rid of any barriers that you face as a disabled person whether you are applying for a job or an employee already.
As long as it is reasonable, you should have the same access to everything that concerns or affects doing your job or getting your job done just like everyone else who is not disabled.
When Does The Reasonable Adjustments apply?
The duty to make reasonable adjustments arises in 3 (three) situations:
- where a provision, criterion or practice applied by or on behalf of the employer
- where a physical feature of premises occupied by an employer, or
- where the lack of an auxiliary aid
It also applies to when the situation 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 to take in all the circumstances to avoid that disadvantage – in other words the employer has to make a ‘reasonable adjustment’.
The reasonable adjustment duty also extends to the recruitment process as well as to employees already employed.
Are You a Carer of a Disabled Person?
Equality Acet 2010 and Carers
The Equality Act 2010 now protects you as a carer of a disabled or elderly person. If you’re looking after someone who is elderly or disabled, the law will protect you against direct discrimination or harassment because of your caring responsibilities.
This is because you’re counted as being ‘associated’ with someone who is protected by the law because of their age or disability. You’re already protected from discrimination and harassment if they happen at work, but the new law will also protect you, if you are caring for a disabled person:
- when you shop for goods
- when you ask for services
- when you get services
- when you use facilities like public transport
Direct Discrimination As A Carer
This is where you’re treated less favourably than someone else because you’re caring for an elderly or disabled person. At work this could include your employer:
- refusing to offer you a job because of your caring responsibilities
- treating you less favourably because of your caring responsibilities
You are also protected outside work from direct discrimination, which could include:
- discouraging you from using a service because you care for someone who is disabled
- making it impossible for you to use a facility because you look after someone who is disabled
- providing you with a worse service than someone else who isn’t caring for a disabled person
Harassment As A Carer of A Disabled Person
The new Equality Act 2010 will protect you from harassment because you’re looking after an elderly or disabled person. Harassment is unwanted behaviour related to, for example, disability or age.
It hurts your pride or creates an intimidating, degrading or offensive environment for you. It might be deliberate but it doesn’t have to be. Someone could be harassing you even if they don’t mean to or don’t realise they are doing so.
It’s already against the law to harass you at work but it will also be against the law to harass you when you buy goods or get services if you are caring for a disabled person.
If you’re caring for an elderly person, the new law will only protect you at work until more new parts of the law come into effect later.
Exceptions To The Carers’ Section of Equality Act 2010
There are as always exceptions to the Equality Act 2010 under the carers section. If you were disabled yourself, you’d have the right to have reasonable changes made so you could use services and facilities or go to work.
This doesn’t apply to people associated with disabled people so it won’t apply to you as a carer. However, as a carer you already have the right to ask for flexible working hours so that you can fit in your caring responsibilities with your work.
Carers’ Section of Equality Act 2010 taken from Government Equalities Office Quick start guide for carers.
According to ACAS (See below for full details) the main points within the Equality Act 2010 are the following:
- Provides disabled people with protection from discrimination in the work place
- Employers must make reasonable adjustments to accommodate a worker with a disability
- Disabled employees are protected from harassment at work
- Employers should have polices in place to prevent discrimination
Each country have their own laws and issues on disability discrimination, however within this page ‘Equality Act 2010’ it is concerning the United Kingdom.
If you have any legal questions regarding the Equality Act 2010 or reasonable adjustments in the workplace please contact Katherine Hodge at MW Solicitors.
Cited Websites and Articles
- ACAS (Update 2015) ‘Disability Discrimination‘ ACAS website. Available from: <http://www.acas.org.uk/index.aspx?articleid=1859>
- Equality and Human Rights Commission ‘Equality Act 2010,’ EHRC website. Accessed 11/08/2016. Available from:< https://www.equalityhumanrights.com/en/equality-act/equality-act-2010>
- Government Equalities Office ‘Equality Act 2010: Duty on employers to make reasonable adjustments for their staff,’ Government Equalities Office website. Available from: <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/138118/Equality_Act_2010_-_Duty_on_employers_to_make_reasonable_adjustments_for….pdf>
- Government Equalities Office ‘Equality Act 2010: What do I need to know as a carer?’ Government Equalities Office website quick start guides. Available from: < https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/85016/carers.pdf>
- Government Equalities Office ‘Equality Act 2010: What do I need to know? Disability Quick start guide,’ Government Equalities Office website. Available from: < https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/85011/disability.pdf>
- Pain Doctor 27 May 2015 ‘Accessibility For Invisible Illnesses in the Workplace Pain Doctor website.Available from: <https://paindoctor.com/accessibility-for-invisible-illnesses-in-the-workplace/>
- Pain Doctor 6th September 2015 ‘How can I get reasonable accommodations for chronic pain?’ Pain Doctor website. Available from: <https://paindoctor.com/how-can-i-get-reasonable-accommodations-for-chronic-pain/?utm_source=PainDoctor.com+-+Newsletter&utm_campaign=4c034c0495-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_abdd16ec01-4c034c0495-113808837>
- Unison (2014) ‘Proving Disability and Reasonable Adjustments,’ Unison website document. October 2014. Available from: <https://www.unison.org.uk/content/uploads/2014/12/TowebProving-disability-and-reasonable-adjustments-ed5-Oct-142.pdf>
Last Updated: 05/02/2020