The major provisions of the Equality Act came into force on 1 October 2010.

The Act will have a significant impact on employer's recruitment procedures, company employment policies, and diversity strategies.We've already considered one of the most controversial changes introduced by the Act – banning pre-employment health questionnaires.

Now we examine changes to the meaning of disability discrimination, in particular to the new concept of 'discrimination arising from disability', which replaces 'disability related discrimination'.

It attempts to remedy perceived defects in the protection given to disabled people under the old law, and so employers will now have greater legal responsibilities.

When considering employment law advice, this article looks at the impact of the new Act from both an employer's and employee's perspective, and how best to resolve issues that may arise as a result of the changes in the law.

Remember: a person is only protected against any form of disability discrimination if they satisfy the legal definition of disability laid down in the Act. This has not changed: a person is only disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

What does the new concept 'discrimination arising from disability mean?'

The decision of the House of Lords in Mayor and Burgesses of the London Borough of Lewisham v Malcolm 2008 IRLR 700 made it virtually impossible for a disabled employee to claim 'disability related discrimination', because it changed the comparator in such cases.

Following the case, if a disabled employee was off sick for six months as a result of their disability and was then dismissed on the grounds of capability, as long as the employer could establish that it would have dismissed a non-disabled employee in the same circumstances and for the same reason – i.e. due to sickness absence for six months – it would not have been discriminating against the disabled employee.

Under the new law, there's no need to point to any comparator, as long as the discrimination 'arises from the disability', the employee can make a claim for disability discrimination. This means that in the example above, if the employee can establish that they were off sick as a result of their disability and then dismissed on capability grounds, they would pass the first hurdle and shift the burden onto the employer to objectively justify the dismissal as a proportionate means of achieving a legitimate aim – this is likely to be a difficult test to satisfy.   

From an employer's perspective

• Employees who are disabled within the meaning of the law will no longer need to compare themselves with non-disabled employees to make a claim of disability discrimination. They'll only need to show that their employer's treatment of them is related to their disability.
• Employers should review their procedures on long term absence management and ensure that they're actively managing sickness absence by effectively monitoring employees off on long-term sick and considering whether the absence is related to disability.
• Employers should review their procedures on short term sickness absences and ensure that they are not disciplining/dismissing employees on grounds of capability or conduct where their absences are related to disability, unless they can objectively justify their actions.
• Review any bonus schemes which attract payment for attendance levels as this may have an impact on disabled employees.
• Review appraisals to determine whether any scoring is connected to attendance levels, as again this may have an impact on disabled employees.
• Ensure as an employer you keep accurate, contemporaneous notes of any decisions made relating to an employee who suffers from a disability. Ensure that a proper procedure is followed, with transparent reasoning for decisions made, whether or not a disabled employee has been employed for 1 year or more.
• The justification test is now stricter, so ensure that as an employer you receive proper legal advice prior to dismissing an employee where the reason could be connected to the disability.
• Train your staff about the new law under the Act: an employer can be liable for the discriminatory conduct of its staff whether or not they were aware of this unless they have taken all reasonable steps to prevent discrimination. Training is likely to be a good defence to such claims.
• If an employer is found to have discriminated because of an employee's disability, they will be liable for unlimited compensation. 

From an employee's perspective

• It should now be easier to make disability claims where you have suffered a detriment as a consequence of your disability.
• You will no longer have to rely solely on the claiming that your employer did not consider making reasonable adjustments for you for example, when dismissing you or otherwise acting to your detriment such as by setting performance targets that do not account for your disability.
• The employer in defending their actions under the new law will face a more difficult test to objectively justify their actions. Your employer would have to show it had a genuine business need for its treatment and that the treatment was an appropriate response to that need and there was no less discriminatory way of achieving it.
• If you feel that you have been discriminated against for a reason connected to your disability, review your staff manual which should set out your employer's grievance procedure. If you do not have access to a staff manual and/or wish to raise a grievance seek legal advice in the first instance.
• Make sure that your employers are aware of any disabilities that can affect your work activities. If your employers are not aware, they can not be legally responsible for any conduct.

What are the options available to the parties?

• Employers will be able to defend claims successfully if they didn't know and couldn't  reasonably be expected to know the employee was disabled, or if they can establish that the treatment was a proportionate means of achieving a legitimate aim.
• Employers should ensure that training for, and communication of, the new law is actively pursued with all employees to ensure a fair working environment, and to try and prevent liability arising under the new law.
• If employers' reasons for taking a course of action are not clear and transparent and do not obviously provide objective justification for their actions, employees should consider raising a grievance using the formal procedure in order to request clarification from their employers.

All documents should be read and used in accordance with the terms and conditions. This document is for your general information only and is not a detailed statement of the law. It is provided to you free of charge and should not be used as a substitute for specific legal advice. If you require specific legal advice please contact our helpline on 03700 86 86 86.