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Home > Vol 20, No 3 (2014) > Jefferson

Placing Disability and Employment Law in Context: Recent Developments

Michael Jefferson [1]

Cite as Jefferson, M., "Placing Disability and Employment Law in Context: Recent Developments", (2014) 20(3) Web JCLI.

Abstract

This article considers the current state of workplace disability law in the United Kingdom. It places it into a contextual framework and does so in part by looking at the 'waves' of disability equality law. It examines in particular changes to the law found in the Equality Act 2010 and the duty on employers to make reasonable adjustments. It concludes with considering the views of the government currently in power.

1. Introduction to disability law in the workplace

Without downplaying political activism, what is the importance of disability law insofar as it affects the workplace? Perhaps one in six or seven of the working population are disabled people and have a disability as defined by the statute, currently the Equality Act 2010 (The latest figures are found on the website of the Office for Disability Issues (ODI), http://odi.dwp.gov.uk/docs/res/factsheets/disability-prevalence.pdf, last updated August 2012 but they cover the period 2010-2011.) In terms of numbers the ODI estimates, using the Family Resources Survey, that over 11 million people in the UK are disabled people, as defined by the Equality Act 2010, of whom over five million are of working age (defined as 16-64 for men and 16-59 for women). The majority of the 11 million are women. There are as of 1 January 2014 around 30 million people in some form of employment. In terms of impairment the two most common ones are mobility and lifting/carrying. As that working population grows older, more proportionately will become disabled people. A recent report on this topic, the Equality and Human Rights Commission's Research Report n. 88, Barriers to Employment and Unfair Treatment at Work: A Quantitative Analysis of Disabled People's Treatment at Work by N. Coleman, W. Sykes, and C. Groome of Independent Social Research (November 2013), found that only 47% of persons with disabilities were in employment compared with 77% of those without disabilities, and that persons with disabilities were less likely to have the minimum qualifications for jobs than those without. It also found that the employment prospects of disabled people varied strongly by the relevant disability e.g. 35% of those with learning disabilities were in employment but only 22% of those with mental illness. Thirty per cent of those with disabilities had received unfair treatment at work (including bullying and harassment) because of their disability, and those with disabilities thought that workplaces were inflexible towards their needs. The UK Commission on Employment and Skills found that there was a 'continuing underemphasis on skills development for disabled people in employment programmes' ( Disability and Skills in a Changing Economy, September 2011).

The law is not restricted to those who work but covers also e.g. schools, goods and services, and the sale and letting of property. The provisions of the Disability Discrimination Act 1995 were extended to educational establishments such as universities and schools by the Special Educational Needs and Disability Act 2001. This article discusses the law relating to disability with particular emphasis on the workplace and developments in the last two years. While the focus is on English & Welsh law, coverage extends to Scotland and Northern Ireland, where the law is the same. As a general rule in England and Wales and Scotland employment cases are first heard in employment tribunal with appeal to the Employment Appeal Tribunal (and then to the Court of Appeal in England and Wales and to the Court of Session in Scotland; in both jurisdiction the final domestic court is the Supreme Court). In Northern Ireland employment disability cases commence in the industrial tribunals with appeal to the Northern Irish Court of Appeal and from there to the Supreme Court. Employment tribunals in England and Wales and Scotland were originally called 'industrial tribunals' but the new nomenclature was adopted as a result of the Employment Rights (Dispute Resolution) Act 1998, s 1(1), with effect from 1 August 1998.

One major problem with this area of law is that those with disabilities may not be aware of the law. In the Special Eurobarometer Report 393, Discrimination in the EU in 2012, 2012, p. 10, European Commission, respondents with disabilities were less aware of disability rights than were the general population. The below attempts to state disability law, particularly concepts related to disability law only and not equality law in general, within a limited compass.

As elsewhere in equality law most of the case law 'action' is in the area of employment. [2] Compare, for example, the sexual orientation case Bull v Hall [2013] UKSC 73, involving Christian hoteliers who refused a gay couple a double bed. The authority is not an employment one but is a significant one testing the boundaries of discrimination law. Not being an employment law authority where discrimination cases start in the employment tribunals, the case started in the County Court. The law is, however, the same as to e.g. the definition of discrimination within the Equality Act 2010 whether the facts involve schools, workers, and the provision of hotel services etc., as the case may be. Among reasons for employing disabled persons were that if one-sixth of the workforce is automatically excluded by employers, they miss out on talent and on the employing a diverse range of workers (which reflects customers and the community). Disabled people may also bring with them additional qualities such as the ability to use British Sign Language (BSL). As is usual, it may be easier retraining a disabled person than advertising for and recruiting someone else. These points are made on the gov.uk website, www.gov.uk/government/publications/employing-disabled-people-and-people-with-health-conditions [3]

As ever in equality law, one reason for the law is to prevent stereotypes e.g. not many of disabled people use a wheelchair (contrary to the stereotyping of disabled people), and many disabilities such as epilepsy, diabetes, and stuttering are hidden. That stereotyping is an aim behind discrimination law can be seen in the criticism of and subsequent judicial narrowing of Lord Denning MR's views on women, chivalry, and women's hair inPeake v Automotive Products Ltd [1977] ICR 968 (CA) and compare the discussion in Bamforth, Malik and O'Cinneide, Discrimination Law: Theory and Content, Sweet & Maxwell, 1^st ed., 2008, pp. 259-62. The statistics given above emphasise that there are many differences among those classified by English law as being disabled people; indeed, the differences may be greater among disabled people than between those classified as disabled persons and the rest. The below does not treat of the 'medical' and 'social' models of disability and does not provide an international perspective (especially, the UN Convention on Persons with Disabilities, adopted 2006, in force 3 May 2008); both topics are dealt with very well elsewhere. Similarly, the Public Sector Equality Duty is not discussed, because it goes beyond specifically disability law.

2. Outline of the article

Discussion below contains, first, an outline of the development of the law concentrating on the law after 1995; secondly, the current definition of 'disability' for the purposes of the Equality Act 2010; thirdly, the similarities and differences between the law on disability found in that statute and the other 'protected characteristics' as defined therein; fifthly, the new causes of action found in that Act; sixthly, the policies of the current government in respect of equality law in the workplace; and finally and briefly, the prospects for change.

3. The 'waves' of disability law

The UK had a statute dealing with disability as long ago as 1944, well before the mid-1970s' laws on sexual and racial discrimination. The Disabled Persons (Employment) Act 1944 was a war-time measure aimed at getting disabled servicemen into jobs. It provided that employers with 20 or more employees should employ disabled people as at least 3% of their workforce. The statute, which may be seen as the first wave of disability rights, was notorious for not being enforced. A groundswell of support for disability rights finally overwhelmed the sustained opposition of the government of the day and the Disability Discrimination Act 1995 (DDA) was at length passed: 'at length' because there were 14 private members' bills before the then government introduced the Disability Discrimination Bill. The 1995 Act may be seen as the second wave of discrimination law. It was a groundbreaking measure, based in part on previous sexual and racial discrimination statutes but also having specific laws on disability discrimination alone. Between 1995 and 2010 protection for people with disabilities under the DDA was extended in several respects (e.g. the removal of the small business exemption originally found in s. 7 of the 1995 Act, one which it is said exclude 96% of workers; the exemption originally applied to business with fewer than 20 workers, later reduced to 15 - it is thought that the number of 20 comes from the 1944 statute noted above) and these amendments are noted below where appropriate. The excision of the exception for employers with a number of workers below a certain level means of course that the law applies to all employers including small and medium enterprises and even to micro-businesses. These post-1995 extensions to the law may be seen as the third wave in the development of discrimination law as it affects the workplace.

The Equality Act 2010, the current statute, is the fourth wave of anti-discrimination disability law in the UK. Disability also was historically the third 'protected characteristic' after sex (1975) and race (1976) but before sexual orientation (2003), religion or belief (2003 also) and age (2006), the last three being the result of EU Law. Like the laws on sex and race, the Disability Discrimination Act 1995 (DDA) was very much a UK development with much of the basic law including direct and indirect discrimination concepts being derived from US anti-discrimination laws ('disparate treatment' and 'disparate impact' respectively in the USA). Not until 1997 did the European Commission gain competence in disability matters and the Framework Directive on Equal Treatment in Employment and Occupation 2000/78/EC, sometimes known as the Employment Directive and the Framework Directive, dates from 2000 and was transposed into UK law in 2003 except for age (2006). The transposition led in time to the withdrawal of the small business exception and the extension of the coverage of the 1995 Act to persons not previously covered such as firefighters and the police. As is obvious from the chronology, EU law had no influence on the drafting of the DDA and its particular concepts especially the duty to make reasonable adjustments (which is a US idea, but called there and in the Framework Directive, Art. 5, the duty of 'reasonable accommodation'). However, the UK concepts have influenced EU law and at present the duty to make reasonable adjustments is being tested in the arena of religious discrimination through case law and academic commentary. [4]

The DDA as originally enacted was different in many respects from the rest of equality law e.g. unlike sexual and racial discrimination law, as already seen it applied only to employers with 20 or more workers, but those differences have been reduced over time (as said, these extensions may be seen as the third wave of disability law) and the Equality Act 2010, which may be seen as the fourth era of disability law, smoothed out some other differences. The Court of Appeal has emphasised that, contrary to expectations, 'it may be positively misleading to approach [disability rights law] with assumptions and concepts familiar from experience of the workings of' sex and race discrimination law: Clark v Novacold [1999] ICR 951, per Mummery LJ.

4. The Equality Act 2010: similarities and differences between 'disability' and the other protected characteristics

In this context the institution of indirect disability discrimination is the foremost feature of the 2010 statute's effect on disability discrimination. [5] Other strands such as sexual and racial discrimination had this type of discrimination from the start, but the argument about disability was that indirect discrimination was not needed because its functional equivalent was the duty to make reasonable adjustments, discussed below. Within that statute disability is one of the nine 'protected characteristics' (formerly 'strands') and many of the general provisions of the Act apply to disability as they do to any other protected characteristic e.g. direct discrimination, indirect discrimination, harassment, victimisation (which does require a comparator: therefore, a line manager who treats those with disabilities badly but not worse than others who are similarly situated is not liable for disability discrimination). Also similar are for example the doctrine of vicarious liability as extended in Jones v Tower Boot [1997] ICR 254 (CA) and the remedies available. These are not discussed below. The below deals largely with disability in the context of employment law because almost all of the case law concerns job applicants, workers, and former workers.

Differences, however, do remain between disability law and the other protected characteristics. In this context Mummery LJ's warning quoted above remains apposite. The main one is that workers with disabilities may be treated better than non-disabled ones and the non-disabled persons cannot complain e.g. if the employers promise to give interviews to all applicants with disabilities, non-disabled people cannot argue that they are treated less favourably than the disabled people: see Archibald v Fife Council [2004] UKHL 32 and see s. 13(3) of the 2010 statute, which permits more favourable treatment for disabled people than for others. The outcome, therefore, is that this law is not about equal treatment between those with disabilities and those without or vice versa but is concerned with different treatment for disabled persons. Compare e.g. race - a white person can complain if a minority ethnic person alone is interviewed despite the white persons having at least equal and maybe better qualifications for the job. It is irrelevant that in the UK historically discrimination on the grounds of race has been against minority ethnic groups. Of course, the discrimination may not be 'because of race' but if it is, the white person may well succeed in a claim of direct racial discrimination. In the language used on these occasions protection under the 2010 Act is 'asymmetrical'. Those with disabilities may have a claim but those without do not: the Act protects the former but not the latter. For this reason authorities on other protected characteristics should not be automatically transposed into disability law. Protection for those not disabled people is, however, provided where a non-disabled person is perceived to be a disabled person but is not and where a non-disabled person is discriminated against for associating with a disabled person. See the next section for discussion of perceived disability and associated disability.

The current government is rowing back on some equalities law; none of these amendments to and refusals to implement parts of the 2010 Act is specifically on disability. However, the retrenchment of general equalities law does impinge on disability rights. These matters may be seen as the fifth wave of disability law. They are considered below after an examination of the various specifically disability claims within the Equality Act 2010.

5. The Meaning of Disability under The Equality Act 2010

In order to be characterised as a disabled person under the 2010 statute the claimant must show that she falls within the Act's definition. This section concentrates on the hurdles the applicant has to surmount to be so classified. The focus of the statute is on the individual, not on the disability itself. In other words, there is no list of disabilities covered by the 2010 Act; the focus is on whether the individual fits within the definition within the Act and not whether she suffers from any particular disability. Therefore, one individual may fall within the statute because she has a bad back, whereas someone else may not be covered even though he too has a bad back. Moreover, the definition is not limited to visible disabilities but covers hidden ones such as diabetes and a bad back. Similarly, the fact that a person is one with one or more disabilities for some other purpose such as Special Educational Needs, incapacity benefit, Disability Living Allowance or statutory sick pay does not in itself signify that she is also included within the 2010 Equality Act's definition; and the fact that the claimant does not consider herself to be a disabled person is also irrelevant. Self-identification as being a disabled person is therefore not the touchstone. The courts and tribunals have stressed that Parliament's definition should be given a purposive interpretation to give effect to its (presumed) intent: Goodwin v Patent Office [199] ICR 302 (EAT). For a worker to succeed in a claim that she is a disabled person she need not show that she has worked for a certain length of time or that she worked a minimum number of hours.

The definition is found in s. 6(1).

'A person (P) has a disability if -

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.'

The Equality and Human Rights Commission has published the Employment: Statutory Code of Practice, which covers all protected characteristics. The ODI, Office for Disability Issues, has produced Equality Act 2010 Guidance on matters to be considered when determining whether a person has a disability, 2011. This is available on the Equality and Human Rights Commission website: http://www.equalityhumanrights.com/uploaded_files/EqualityAct/odi_equality_act_guidance_may.pdf . These publications are not per se law but must be taken into account when determining issues relating to disability discrimination. [6]

The definition may be difficult to apply and that application is in essence fact-sensitive. A person suffering from a certain condition may or may not be a disabled person. The three-fold definition must be satisfied in respect of this individual. The fact, therefore, that one person who suffers from a condition is a disabled person does not mean that all are. For exceptions, see below.

A disabled person includes one who was a disabled person in the past. It also includes those incorrectly perceived to be disabled people and those who are discriminated against for associating with a disabled person (e.g. a mother caring for her disabled child: Coleman v Attridge Law [2008] ICR 1128 (ECJ). This decision was incorporated into UK law in the Equality Act 2010 for all protected characteristics.

While obesity per se is not a disability, it is possible that an obese person may be perceived to be a disabled person. At the time of writing there is a case before the Court of Justice of the European Union (CJEU), FOA, acting on behalf of Kaltoft v Billund Commune, a Danish reference, where the question is whether discrimination on grounds of obesity is contrary to EU Law (compare Walker v Sita Information Networking Computing Ltd [2013] Eq LR 476 (EAT) where Langstaff P said: 'although I do not accept that obesity renders a person disabled of itself, it may make it more likely that someone is disabled'. As ever, the definition is applied, and the cause of the disability need not be investigated.) The ODI Guidance provides this example. 'A woman is obese. Her obesity is not an impairment, but it causes breathing and mobility difficulties which substantially adversely affect her ability to walk.' It is therefore the impact of the disability, and not the disability itself, which counts. The example will have to be changed if the CJEU were to rule that obesity in itself is a disability. [7]

It should be noted that it is not necessary for the employment tribunal (industrial tribunal in Northern Ireland) to follow the three elements of 'physical or mental impairment', 'substantial and long term effect', and 'ability to carry out normal day-to-day activities' mechanically: J v DLA Piper [2010] IRLR 936 (EAT). Looking, for instance, at the effects first may help determine whether or not there is an impairment. However, doing so does aid analysis. The burden of proof at this stage is on the applicant but may shift later.

5.1 'Physical or mental impairment'

There is no definition of either a 'physical' or a 'mental' impairment. 'Mental impairment' used to have to be a 'clinically well-recognised illness' but that restriction was removed by the Disability Discrimination Act 2005 with effect from 5 December 2005. The ODI Guidance mentioned above states that 'physical or mental impairment' should be given its normal meaning for it does not bear a medical definition; and it contains a non-exhaustive list of impairments. 'Impairment' bears its everyday meaning: McNicol v Balfour Beatty Rail Maintenance [2002] ICR 1498 (CA, per Mummery LJ). As this case also holds, there is no need to consider how the impairment was caused provided that there is an impairment with a 'substantial and long-term adverse effect'. However, it may be problematic for the claimant not to be able to demonstrate that while she has an impairment, the cause is unknown. The cause is usually proved by medical evidence.

In employment matters but not in respect of improvements to leased dwellings or to transport (s. 185 and Part 12 of the Act respectively) a past disability is treated a disability within the statute, even though the applicant has completely recovered from that disability: s. 6(4).

Various matters are excluded: pyromania, kleptomania, dependency on alcohol or other non-prescribed drugs, exhibitionism, voyeurism, a tendency to abuse others physically or sexually, and ... hayfever ('seasonal affective rhinitis'). These exceptions are found in the Equality Act 2010 (Disability) Regulations 2010, SI 2010/2128. However, if, for example, the dependency on alcohol has led to liver disease, that disease will be a disability within the Act provided that the definition is otherwise satisfied. [8]

5.2 'Substantial and long-term adverse effect'

'Substantial' is now defined in the Act as 'more than minor or trivial' (s. 212(1)), but even before the 2010 statute the EAT had held in Goodwin v The Patent Office [1999] ICR 302, a case involving a paranoid schizophrenic, that it meant 'more than minor or trivial' just as it does in criminal law and of course just as it is now defined in the Act. It does not mean 'a major part', as it does in ordinary language. The focus is on what the applicant cannot do or cannot do as well as she used to be able to do: the fact that she can do many things is irrelevant if she cannot do other things. This interpretation, which means that the first instance tribunal is stopped from holding that, because the disabled applicant can do most things, there is no substantial effect, was adopted in Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19 (EAT). It should be emphasised that the comparison is between what the claimant can now do and what she could do previously. It is not between what she can now do and what the ordinary person can do: Paterson v Commissioner of Police of the Metropolis [2007] UKEAT/0635/06/2307, 23 July 2007 (dyslexia). Taking exams is a day-to-day activity, as indeed are comprehension and reading, capacities tested by taking assessments. Examples of such activities are given in the ODI Guidance. Whether something is 'substantial' or not may depend on external factors such as temperature and the time at which the activity occurs. See the ODI Guidance, paras. B2-10, for examples of such external influences.

In, for example, Flattley v Cleveland Police Authority [2013] UKEATPA/0896 and 1021/12/LA, and UKEAT/0619 and 0620/12/LA, 24 September 2013, HHJ McMullen sitting with lay members, it was held that while the applicant had a mental illness (a mild anxiety disorder), that disability did not have a substantial effect on her ability to carry out normal day-to-day activities.

Impairments may be amalgamated to form a disability within the Act, even though the impairments have different effects (but they do overlap) and even though each individual impairment in itself is insufficient to constitute an adverse effect within that statute: Ministry of Defence v Hay [2008] IRLR 928 (EAT).

'Long-term' is defined in Sched. 1, para. 2, of the 2010 Act as lasting for 12 months or being likely to last for 12 months or for a lesser period if the applicant is going to die. Where the impairment is sporadic, as with e.g. epilepsy and sometimes clinical depression, it is treated as being long-term if it is likely to recur beyond the 12 month period, even when the impairment is of no effect (e.g. a disease is in remission). For a recent case see Williams v Leukaemia and Lymphoma Research [2014] UKEAT/0493/13/LA: the claimant, who was suffering from depression, failed to prove that the condition had occurred in the past and was likely to recur.

The aim of the requirement for 'long-term effect' is to exclude short-term illness. At the Committee Stage in the House of Commons the Government rejected attempts to delete 'long term' (17 June 2009). The threefold definitions of 'long term' are independent; therefore, the likelihood of recurrence part of the definition does not entail that the 'substantial … adverse effect' must last for more than 12 months. The effects of related impairments can be amalgamated when determining their long-term nature according to the ODI Guidance, and para. C5 states that 'conditions with effects which recur only sporadically or for short periods can still qualify'. In Patel v Oldham Borough Council [2010] IRLR 280 (EAT) the earlier (mild) inflammation of a woman teacher's spinal cord, it was held, could be added to her later pain in the same area provided that the two were linked. The likelihood of the recurring nature of the impairment is to be judged at the time of the alleged discriminatory act or omission, not at the date of the tribunal.

An extension to the definition exists in respect of 'severe disfigurement': Sched. 1, para. 3 of the Equality Act 2010. Such a condition is deemed to have a substantial and adverse effect on the ability to carry out normal day-to-day effects. See the Guidance, para. B25, for examples of disfigurements such as scars, postural deformations, and birthmarks. For case law from the Court of Appeal of Northern Ireland see Cosgrove v Northern Ireland Ambulance Service [2006] NICA 44. The Court stated that those who are severely disfigured are deemed to have a 'special status' [at 15] such that they require protection just as much as those who cannot carry out normal day-to-day activities. This meant that the different treatment must arise out of the disfigurement and not because, as here, the claimant was suffering from psoriasis. Therefore, the unfavourable treatment must arise out of the disfigurement and not out of a risk of infection coming from the psoriasis. [9] [9]

It may not be immediately obvious but it is the 'substantial … adverse effect' which has to be 'long term', as defined, and not the 'physical or mental impairment'. An impairment may lead to the claimant's adverse effects or it may be in itself those adverse effects: McNicol v Balfour Beatty Rail Maintenance, above.

5.3 'Ability to carry out normal day-to-day activities'.

The original statute, the Disability Discrimination Act 1995, had a list of day-to-day activities e.g. mobility, the ability to lift, continence, and manual dexterity. The 2010 Act omits this list and does not provide a definition. The effect is to extend the width of the definition of disability under the Act. The list is still useful for the purpose of illustrating the type of activities which are day-to-day ones and as a reminder that a physical impairment can have a mental effect and a mental impairment may have a physical effect (e.g. a physical pain can affect a person's ability to concentrate on the task at hand). The ODI Guidance, section D, is useful when deciding on day-to-day activities (e.g. walking a mile, getting washed and dressed, travelling on public transport). The Appendix to the Guidance is helpful in determining whether or not the impairment had a substantial effect on normal day-to-day activities.

At the time of the list the following were said in Vicary v British Telecommunications plc [1999] IRLR 680 to be such activities: making beds, housework inc. ironing, sewing, using scissors, minor DIY, filing nails and curling hair. Famously (and still in the era of the list) in Ekpe v MPC [2001] IRLR 605 (EAT) putting rollers in and applying make-up were held to be normal day-to-day activities. It is immaterial that these actions are not normally done by men. 'Normal' was said to mean 'not abnormal or unusual'. Activities performed at work may be part of normal activities e.g. answering the phone. In Goodwin, above, also in the age of the list, the claimant's ability to communicate with his colleagues and his ability to concentrate at work (because he believed he was hearing voices from God) restricted his capacity to carry out normal day-to-day activities, and the fact that these normal day-to-day activities happened to be carried on at work did not affect the issue. [10] What the definition excludes on its face is specialised activities such as being a concert pianist but playing a musical instrument but not being a concert musician may well be a normal day-to-day activity. In the same vein the Guidance suggests that highly specialised work will not be a 'normal day-to-day activity'. However, it is suggested that if the specialised work is merely an extension of such an activity, it is covered. Tamara Lewis, noted above, on p. 14 gives this example:

… a garden centre worker who cannot lift heavy bags of soil due to a back injury may nevertheless be able to lift ordinary items such as a full kettle or a loaded tray. Presumably, such a worker is unlikely to be disabled …, even though s/he has an injury which interferes with his/her ability to do his/her job.

There has recently been some debate whether the UK definition is compatible with EU Law. In Chacon Navas v Eurest Colectividades SA Case no. C-315/05 [2006] IRLR 706 what is now the Court of Justice of the European Union said that whether a person is a disabled person within EU Law depends on whether her impairment 'hinders the participation of the person concerned in professional life over a long period of time'. The definition was used to exclude short-term sickness. This definition is broader than that used in the UK statute, which is restricted to 'day-to-day activities'. A further EU case clarifying the matter would be of assistance, but if UK law does fall short of EU law as it would seem to do, then the usual remedies such as interpreting the UK statute 'as far as possible' in conformity with EU law are available. If this is correct, the previous law that 'day-to-day activities' exclude acts done only at work is now definitely incorrect, for 'professional life' covers working life.

6. Extensions to the definition of 'disability'

The Equality Act 2010 consolidates the Disability Discrimination Act 1995 and legislative amendments to that statute. This section considers matters which by Parliament are or are not covered by the just discussed threefold definition of what a disability is.

1. Those who have had disabilities in the past: s. 6(4). The aim behind this provision is that without it those who had suffered mental illness in the past would not be protected after they had recovered.
2. The effect of measures to treat the disability e.g. psychiatric therapy but not glasses or contact lenses: Sch. 1, Part 1. The effect is that hidden disabilities such as diabetes are covered by the definition of disability, provided that they fall within the basic definition in s. 6(1), quoted above. This area of law goes by the name of 'deduced effects'. For an example see Kapadia v London Borough of Lambeth [2000] IRLR 14 (EAT). (The Court of Appeal [2000] IRLR 699 discussed a different point.) A more recent illustration is Fathers v Pets at Home [2014] UKEAT/0424/13/DM (prescribed drugs to control depression). In SCA Packaging v Boyle [2009] UKHL 37 voice training was such a measure.
3. Progressive conditions such as muscular dystrophy: these are treated as disabilities as soon as the claimant starts to suffer from any (not therefore necessarily 'substantial') adverse effects on her ability to carry out day-to-day activities. However, three progressive conditions - cancer, HIV, and multiple sclerosis -- have been deemed to be disabilities within the Act since the Disability Discrimination Act 2005. The objective of the extension is to stop contentions that the claimant was not a disabled person because she or he could still carry out normal day-to-day activities. See Sched. 1, para. 8, of the 2010 statute for this extension.
4. Severe disfigurement is treated as a disability: Sched. 1, para. 3, of the Equality Act. Excluded by the statute are tattoos and body piercings. Perhaps surprisingly the disfigurement extension is read narrowly. In Cosgrove v Northern Ireland Ambulance Service [2006] NICA 44 the claimant had been rejected from a job because he suffered from severe psoriasis. The Court of Appeal held that he had been turned down because of the risk of his infecting others and the risk of his being infected by others and not because of the disfigurement caused by his illness. Therefore, his disfigurement did not constitute a disability within this extended definition. The ODI Guidance says that diseases of the skin (and therefore psoriasis), scars, birthmarks and 'limb or postural deformation' should be considered 'disfigurements' and whether they are 'severe' is to be determined in part by where the disfigurement is e.g. on the face, on the back: para. B22.
5. Blind people, severely sight impaired, sight impaired and partially sighted are deemed to be disabled people if certified by a consultant ophthalmologist: Equality Act (Disability) Regulations 2010, SI 2010/2128, reg. 7, are the source of this law.

7. Differences from Other Protected Characteristics

This section discusses forms of discrimination which apply only to disability.

7.1 The duty to make reasonable adjustments

The duty to make reasonable adjustments to working arrangements and to premises (s. 20) e.g. in relation to training, changes to working hours, providing equipment. The applicant must suffer a 'substantial disadvantage' and the employers must take 'such steps as it is reasonable to take to avoid the disadvantage'

This obligation is often the chief one at issue in a disability claim and is central to the idea of disability rights in English law and indeed US law. Few employment disability claims do not include such a claim and often it is the sole claim. Admittedly the source for this is anecdotal, reading all EAT and Northern Ireland Court of Appeal judgments on disability in the workplace, but it is significant. The law applies to persons who are disabled people: there is no obligation to make reasonable adjustments for workers who are associated with a disabled person. Hainsworth v Ministry of Defence [2014] EWCA Civ 763 is a recent case where the Equality and Human Rights Commission intervened in favour of the appellant/claimant; it is now the leading authority. The Court held that the mother of a child with Down's syndrome could not use the provision in order to get a transfer from Germany where were no special educational facilities for such children to England where there are. On 'a purely literal' reading of the Act she had no claim, and the Court ruled that the meaning of the U.K. statute was not to be extended by Art. 5 of the Framework Directive 2000/78/EC. Laws LJ stressed that the whole purport of Art. 5, even when read with the Directive's recitals and the travaux préparatoires (documents produced during the drafting of the Directive), was to provide protection for the person with a disability, not for those who associated in some way with her. Laws LJ noted the lack of legal certainty of the term 'associated'. The very well-known case of Coleman v Attridge Law (ECJ), mentioned above, was distinguished as an authority on direct discrimination. The European Court of Justice, as it then was, had distinguished direct discrimination (where the discrimination was 'because of' a disability) from Art. 5 (where the reasonable adjustment, here called 'accommodation' in the workplace has to be for the person with a disability). Laws LJ said: 'The contrast is plain. Art. 5 is limited so as to require measures only for the assistance of disabled employees [sic! 'workers' is meant] or prospective employees [workers] of the employer in question.' Laws LJ also held that the EU Charter of Fundamental Rights, the Council of Europe's European Social Charter, and the UN Convention on the Rights of People with Disabilities did not provide support for the claimant's contention. Furthermore, since the 'plain and inescapable meaning' of Art. 5 was a matter of acte clair (the EU doctrine that national courts should not refer an issue to the Court of Justice of the European Union when there is only one possible answer to a legal matter), no reference should be made to the CJEU. Moreover and obiter, even if Art. 5 was to be construed so as to include the situation at issue, there remains the problem that the provision was not sufficiently precise to have direct effect. The Court of Appeal has therefore robustly held that the duty of the employers to provide reasonable adjustments is owed only people with disabilities.

The main provision in s. 20 is sub-s. 3: employers are under a duty, 'where a provision, criterion or practice ... puts a disabled person at a substantial disadvantage ... in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid that disadvantage.' [11] Treating the claimant at least as well as the comparators was not a disadvantage, never mind a substantial disadvantage. What is 'reasonable' is judged objectively: Mid-Staffordshire General Hospital NHS Trust v Cambridge [2003] IRLR 566 (EAT). As Laws LJ said in Newham Sixth Form College v. Sanders [2014] EWCA Civ 734, approving Langstaff J in the EAT in the leading authority of RBS v Ashton [2011] ICR 632, the adjustment must be objectively reasonable and in deciding that issue, it is irrelevant whether the employers had good grounds for making or failing to make the reasonable adjustment. He added that the adjustment is to be categorised as reasonable or unreasonable after coming to a 'clear understanding of the nature and extent of the disadvantage' and that in turn the adjustment must be tailored to the disadvantage. On the facts the employment tribunal had failed to grapple with the fit between the reasonable adjustment proposed and the disadvantage suffered by the appellant, the claimant. [12] The cost of any adjustment may be small and for that reason may be reasonable without the employment tribunal's devoting a lot of time on deciding the issue. This matter is picked up in the next paragraph, but it is worth adding now that the cost cannot be passed on the worker: s. 20(7) of the Equality Rights Act 2010.

Unlike the original DDA 1995 there is no express defence of justification (this was abolished in 1994) but there is an inbuilt one, the provision that the employers must take reasonable steps to avoid the disadvantage; indeed, that provision is why the then government withdrew the defence of justification. The DDA also listed seven factors such as cost and effectiveness to be taken into account when determining the reasonableness of the adjustment. These factors were not restated in the Equality Act and the effect is that the tribunals and courts have more scope when determining that issue than they had previously, but the Code of Practice does list them in para. 6.28. All factors which are relevant must be considered. Present law is that, while budgetary considerations are not in themselves decisive, cost to the employers can make the adjustment unreasonable: Cordell v Foreign and Commonwealth Office [2012] ICR 280 (EAT). Grants to employers to provide reasonable adjustments such as ramps are available under the Access to Work Scheme. 'Access' covers not just access for new workers but also access for workers who have become disabled i.e. continuing access to work. Examples of possible reasonable adjustments are stated in the Employment Code of Practice, para. 6.33. Adjustments, which may be of contractual matters, may include, for instance, the implementation of flexible hours, the provision of a parking space nearer the workplace than it currently is, working from home, reallocating job duties, modifying workplaces and tools, and modifying disciplinary procedures. A combination of several steps may be needed. It should be noted that the claimant need not demonstrate that she has been treated less favourably (than a non-disabled person). It should be noted that the Equality Act 2010, s. 20(7), expressly states that employers are not permitted to charge the disabled worker for the adjustment. The burden of proving that the adjustment was reasonable is on the defendants. Failure to comply with this duty is discrimination: s. 21(2).

Southampton City College v Randall [2006] IRLR 18 (EAT) provides an example of a reasonable adjustment, the reorganisation of work to create a new job for a lecturer whose voice had broken down ('dysphonia'). Since the employers made no attempt at complying with the duty on them to make reasonable adjustments, they were liable for disability discrimination. What is 'reasonable' depends on the facts of the case, and while the EHRC Code of Practice on the Equality Act 2010 gives examples, tribunals are not restricted to these as ones they must order. In Chief Constable of South Yorkshire v Jelic [2010] IRLR 744 (EAT), for example, the duty on the employers was to consider making a job swap, not something mentioned in the then legislation. If there are no reasonable adjustments which may be made, there is no breach of this duty: British Gas Services v McCaull [2001] IRLR 60 (EAT). One of the most recent authorities is Secretary of State for Work and Pensions (Jobcentre Plus) v Higgins [2013] UKEAT/0759/12/DM, 25 October 2013, HHJ David Richardson and lay members. The EAT held that a reduction in hours for a temporary period was a reasonable adjustment; there was no need, as the employment tribunal had thought, for the change to be a permanent one. The 'provision, criterion, or practice' was that the employee should work his contracted hours. If at the end of the period of the reasonable adjustment the applicant was still within s. 20(3), then a new reasonable adjustment should be made. In Croft Vets v Butcher [2013] UKEAT/0430/12/0210, 2 October 2013, it was held that in relation to work-related depression and stress, the employers should pay for cognitive behavioural therapy (CBT) and private counselling, even though she had not sought CBT and even though the treatment could have been undertaken via the NHS within six months. It should be noted that the private CBT was not guaranteed to be successful; it was sufficient that it might work. (See to similar effect Leeds Teaching Hospital NHS Trust v Foster [2011] UKEAT/0552/10.) It should be emphasised that such decisions are fact-sensitive. For example, it is not the law that all employers must pay for CBT and private therapy when their workers suffer from work-related stress and depression. Croft also illustrates that 'reasonable adjustments' may at times be a misnomer. The focus is not on such adjustments as are reasonable but on the employers taking such reasonable steps to prevent their disabled workers being disadvantaged at work because of their disabilities.

The most important authority on this point is Archibald v Fife Council [2004] ICR 954 (HL). A female roadsweeper could no longer walk; the adjustment made by Council was to try to redeploy her but jobs were at too high a level for her. It was held that the employers should have appointed her to that kind of job even though there were better-qualified applicants. Therefore, a disabled person may have to be treated more favourably than a non-disabled one, and a non-disabled one has no claim. This area of law is throughout not symmetric: a non-disabled person has no claim using a disabled person as the comparator if the latter is treated more favourably than her. See also Southampton City College v Randall [2005] UKEAT/0372/05/0711, where on the facts the tribunal held that where there had been a thorough-going reorganisation of the staff, the employers may be obliged to create a new post for a disabled person. Similarly, it may on the facts be a reasonable adjustment not to dismiss the disabled worker when others would be or are being dismissed (Aylott v Stockton-on-Tees Borough Council [2010] ICR 1278 (CA) or to determine the scoring process on a redundancy by not taking into account the claimant's post-disablement absences (McCarthy v Jaguar Cars UKEAT/0320/13/SM). It may be of interest that the doctrine of frustration for disability comes into effect only after the duty to make reasonable adjustments is found not to be breached: Warner v Armfield Retail & Leisure [2014] ICR 239 (EAT). [13] Cases are becoming legion (the EAT judgments website is the source: www.employmentappeals.gov.uk/Public/RecentJudgments.aspx) and are fact-sensitive; readers should not treat the authorities mentioned (and there are a lot more) as precedents. It is rare for the EAT to intervene: an error of law or perversity is needed, as ever in employment law.

Where the reasonable adjustment is one at work, it must be work-related. Therefore, there is, famously, no duty in such circumstances to provide a carer for a worker's toileting needs: Kenny v Hampshire Constabulary [1999] IRLR 76 (EAT). Depending on the facts, however, there may be requirement to provide accessible lavatories.

This form of discrimination comes into effect only if the defendants do not know and could not be reasonably expected to know that the claimant 'has a disability and is likely to be affected' without the reasonable adjustment. Knowledge may be derived via the claimant's manager(s) but it may be that knowledge by the occupational health department when the line manager does not know is not imputed to the defendants. The principal authority is the recent Court of Appeal decision in Gallop v Newport City Council [2013] EWCA Civ 1583. The decision is on what was s. 4A(3) of the Disability Discrimination 1995 but nothing turns on that because that provision was carried through into the Equality Act 2010. Rimer LJ, delivering the main judgment of the Court, held that, as counsel agreed, the defendants did not 'need to know that, as a matter of law, the consequences of [the] facts is that the [claimant] is a "disabled person" as defined in [the Act]' but they did need to know actually or constructively that the claimant fell within the tripartite definition of 'disabled' as adumbrated above. On the facts the employers had relied on a report from an occupational health professional but that in itself was insufficient: they should have instead made up their own minds whether the employee was a disabled person within the meaning of the statute. The Court of Appeal's ruling was followed in Morgan v Armadillo Managed Services UKEAT/0567/12/RN. In Northumberland Tyne & Wear NHS Foundation Trust v Geoghegan [2014] UKEAT/0048/13/BA the employers did not know of the disability within one period; within a later period, when they did know that something was wrong with the applicant, the effect of the impairment on her was insufficient to constitute a disability. There is a steady accumulation of case law on actual and constructive knowledge: the cases mentioned are a sample of that accumulation. For an authority where there was neither, see Sinclair v Coventry and Warwickshire Partnership NHS Trust [2014] UKEAT/0286/13/DA.

Since a worker is under no obligation to inform the employers of her disability, she should tell her employers in order that the duty to make reasonable adjustments comes into play. Nevertheless, there may be occasions on which employers are under a duty to ask their worker whether she has a disability or not. The Code of Practice para. 6.22 gives the example of a worker often found crying at work.

The tribunal determining this issue must hold whether the adjustment was reasonable or not. Its task is not like that in unfair dismissal law when its task is to adjudge whether the dismissal fell within the bounds of reasonable responses and it must not substitute its judgment for that of the defendants. And it goes without saying that the adjustment must be reasonable on the facts in respect of this particular person with a disability, and that what is reasonable for one may not be reasonable for another, and this is so when both are subject to the same disabling condition.

7.2 Discrimination arising from a disability (s. 15)

This provision was also new in 2010 (the previous variant of liability was 'disability-related' discrimination, which was abolished).

'(1) A person (A) discriminates against a disabled person (B) if -

(a) A treats B unfavourably because of something arising in consequence of B's disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.'

There is thus a defence of justification, but the burden of proof is on the alleged discriminator. The defence is couched in the language of EU law, which the Equality Act adopts throughout unlike the DDA.

The aim of this provision is that the person allegedly discriminated against has a claim if she suffers at the hands of the respondent because of the consequences of her disability rather than the disability itself. It should be noted that this provision also gets rid of the need for a comparator, which was the downfall of the previous law on disability-related discrimination found in s. 3A(1) of the Disability Act 1995. The new provision and the principal reason for it is that it gets rid of any need for a comparator, thereby obviating the difficulty which arose in London Borough of Lewisham v Malcolm [2008] 1 AC 1399 (HL) in respect of disability-related discrimination. It is sufficient that the worker is treated unfavourably because of her disability.

Within s. 15 'something' means exactly that. An example of 'something arising in consequence of … disability' is absence from work because of treatment for cancer. The claimant is being treated unfavourably, not because of the disability, cancer, but because of the consequences of the disability, absence from work. To use an illustration from what until Malcolm was the principal authority in the area of disability-related discrimination, Clark v Novacold [1999] ICR 951 (CA), if a sight-impaired person with a guide dog is barred from a restaurant under a 'No Dogs' rule, she is treated unfavourably, being denied entry, in consequence of her having to have a guide dog. The owners may be able to justify the exclusion (objectively) but, as said, the burden of proof is on them.

The statute precludes liability when the defendant does not know and cannot be reasonably expected to know of the disability. The second part, 'could not reasonably have been expected to know', means that the defendant is liable if a reasonable person would have known. In other words, liability is predicated on negligence. It is suggested that on the facts a duty to investigate may arise e.g. an employee has been working well for several years but her skills seem to atrophy rapidly. The employers may come under an obligation to find out why the deterioration has occurred and why. The reason may be the onset of a disability, and a reasonable employer would have checked. [14] To have knowledge the employers must know, actually or constructively, that the applicant has all the elements of disability: an impairment with substantial and long-term adverse effects. The applicant's telling them that he was suffering from bipolar disorder was not enough in itself.

The first appellate decision on s. 15(1(a) was IPC Media Ltd v Millar [2013] UKEAT/0395/12/SM, 26 April 2013, Underhill J and lay members. There was no proof on the facts that the applicant's dismissal was 'because of something arising from [her] disability', the 'something' being her absences from work. The EAT held that 'because of' meant the same as it did in the House of Lords' decision in Nagarajan v London Regional Transport [2000] 1 AC 501 (HL): the act or omission must have operated on the alleged discriminator's mind, whether consciously or not. The EAT said that changing the words from 'reason' or 'grounds' to 'because of' a protected characteristic did not affect the law in Nagarajan. A person, here the one who dismissed the appellant, could not be influenced by something which he or she did not know, here the appellant's osteoarthritis. On the facts of the case it was a question of fact whether the person dismissing did know of the condition and the EAT was split on this issue. In other words, while s. 15(2) provides a defence of lack of knowledge, there is an inbuilt defence of lack of knowledge within s. 15(1). A does not treat B unfavourably 'because of something' when A does not know of that 'something'. It should be noted that the s. 15(1) 'lack of knowledge' defence means 'lack of knowledge of something'; it is not a defence of 'lack of knowledge of something which the alleged discriminator knows is "arising in consequence of" the disability'.

It is suggested that if the respondent has not fulfilled the duty to make reasonable adjustments, the likelihood is that she has also breached s. 15 because without reasonable adjustments it is difficult for her to prove that she has an objective justification, a proportionate means of achieving a legitimate objective.

8. The Coalition's Policies towards the Equality Act 2010

The Conservative opposition was persuaded to allow Labour's Equality Bill to be enacted in the 'ping-pong' period before the 2010 election. However, it remained steadfastly opposed to some parts of it. The Coalition government did not apply much of a brake to the Conservatives' policies. For example, the socio-economic duty in Part 1 of the statute and 'combined' or 'dual' discrimination in s. 14 (a UK version of intersectional or multiple discrimination but involving only two protected characteristics) were not brought into force. As the Coalition's policies have developed, the government has also abolished third party harassment (with effect from 1 October 2013) and is in the process of abolishing the statutory questionnaire, which has existed since 1975 (with effect from 6 April 2014, it is believed). Forthcoming is the abolition of the 'wider' recommendations as a remedy under the Equality Act 2010, probably with effect from 1 October 2014. Coupled with other employment law changes which may have a discriminatory effect of members with protected characteristics such as women and disabled people e.g. the doubling of the qualifying period for a remedy for unfair dismissal and the implementation of fees for all claims including equality ones, there has been a reining back of equality provisions in the years after 2010.

It has to be said, as has been repeatedly stated, that these retreats on equality rights are unsupported by evidence and by the majority of respondents. [15] Significantly some of the reforms were outlined in the so-called Red Tape Challenge. It is difficult to comprehend how in 2014 equality law (and health & safety law) can be seen as disposable bureaucratic red tape. However, in countermoves to the foregoing the government has evinced its intention to oblige employers to carry out equal pay audits and for them to pay fines to the Treasury for 'aggravated' breaches of individual employment laws. See for the former the Enterprise and Regulatory Reform Act 2013, s. 9. What is important for our purposes is that nothing of this specifically affects disability law in itself, the aspects dealt with above, which has come unscathed though this post-2010 retreat from protection for individuals.

9. Conclusion

The introduction of fees for applications to and hearings in employment tribunals and the Employment Appeal Tribunal in 2013 has reduced the number of disability claims by some 75%. There is no suggestion that the number of disability 'events' has also reduced by three-quarters in that period. The introduction of ACAS early conciliation in 2014 has similarly diverted disability claims from the tribunals. There is an ongoing judicial review claim made by the union UNISON which is challenging the introduction of fees are being among other things discriminatory and it is expected that the High Court will give its second judgment shortly. The Conservative Party is wedded to tribunal fees, at least as a means of reducing vexatious claims and of transferring the cost partly way from taxpayers. The Labour Party is seemingly somewhat hesitant about abolishing fees: it is proposing a revision of the rebates from fees, which means that it has adopted the principle of fees. There is a proposal from that party to abolish employment tribunals but without proposing a replacement. The next two years should see changes, but at present the future path of the law is unclear.

It is possible, depending on the winners of the May 2015 general election, that matters may change and that we may see a new wave, a sixth wave, of disability law, perhaps one based on the social model of disability, but at the time of writing it is difficult to be sanguine. Disability law in the workplace is nowhere near a priority for any major party, and the manifestos remain to be written. Even if one rejects the enactment of the social model, and that debate is for a different occasion, there is still the width of the medical model as used in the 2010 statute to be tested. Individual cases, however, are an inappropriate means of extending law which is for the benefit of all people with disabilities.