What is the Equality Act 2010?
The Equality Act 2010 legally protects people from discrimination in the workplace and in wider society. It replaced previous anti-discrimination laws with a single Act, making the law easier to understand and strengthening protection in some situations.
Who does the Equality Act apply to?
The size of your business does not matter. It does not matter if you are set up as a sole trader, a partnership, a limited company or any other legal structure.
Equality law affects everyone responsible for running your business or who might do something on its behalf, including staff if you have them. It does not matter whether you provide the service for free (for example, giving someone information about your paid-for services) or if you charge for it.
What legislation has the Equality Act 2010 replaced?
The Act simplifies, strengthens and harmonises the current legislation to provide Britain with a new discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society.
The nine main pieces of legislation that have merged are:
- the Equal Pay Act 1970
- the Sex Discrimination Act 1975
- the Race Relations Act 1976
- the Disability Discrimination Act 1995
- the Employment Equality (Religion or Belief) Regulations 2003
- the Employment Equality (Sexual Orientation) Regulations 2003
- the Employment Equality (Age) Regulations 2006
- the Equality Act 2006, Part 2
- the Equality Act (Sexual Orientation) Regulations 2007
Does the Equality Act 2010 change frequently?
The framework remains the same, however various areas are clarified and updated frequently.
What is the definition of disability under the Equality Act 2010?
The general definition of disability for the purposes of the Act is a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.
The 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 is defined as more than minor or trivial.
Some people are deemed to be disabled for the purposes of the Act. For example, people with cancer, HIV and multiple sclerosis are protected effectively from the point of diagnosis.
When does the reasonable adjustment duty apply?
The duty to make reasonable adjustments arises in three situations:
Where any provision, criterion, practice, physical feature of premises, or where the lack of an auxiliary aid 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’.
What areas are covered by “Reasonable Adjustment”?
Age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex (gender); and sexual orientation.
What types of discrimination are there?
There a 4 different kinds of discrimination:
What might happen if I don’t make a reasonable adjustment when requested to do so?
If you fail to make a reasonable adjustment when you are under a duty to do so, the Equality Act 2010 treats that as discrimination. This means you could become liable to pay damages were a successful claim to be brought in the Employment Tribunal.
What about when I am recruiting new employees, can I ask questions about their disability?
Some application processes may involve assessment tests or interviews. These processes should not unreasonably disadvantage disabled people. Section 60 of the Equality Act is particularly important as regards what you can and can’t ask about the disability of an applicant when recruiting:
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 auxiliary 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.
That said, it is not unlawful for you 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.
Does a disabled person need to make clear what adjustment is needed to me?
In a situation where you may be under an obligation to make a reasonable adjustment, you and the disabled person obviously 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 unfeasible 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. If it is clear that there isn’t an adjustment that can reasonably be made to avoid a disadvantage, then you can lawfully decline the request.
What if I can’t afford to make a particular reasonable adjustment?
You are only required to make adjustments that are reasonable in all the circumstances.
Factors such as the cost and practicability of making an adjustment and the resources available to you may be taken into account in deciding what is reasonable. Ultimately, it is for an Employment Tribunal to decide, in the event of a claim of alleged unlawful disability discrimination, what adjustment should be made for a particular disabled employee, and whether you were correct to decline to make an adjustment on grounds of practicality or cost.
What if I don’t know my employee, or the person I am recruiting, has a disability?
You are not subject to the reasonable adjustment duty if you do not know, and could not reasonably be expected to know, that an individual has a disability.
Do I have to make my premises disable friendly even if I am not thinking of recruitment?
The reasonable adjustment duty on an employer is not ‘anticipatory’. This means that you are not expected to provide a range of adjustments to your premises in anticipation that one day you might employ a person with a specific disability. However, the built environment of newer premises will have been constructed with some of the needs of disabled people in mind.
Does the duty to make reasonable adjustments apply to a disabled individual or to disabled people generally?
In the case of employers, whether a duty arises will depend on the circumstances of each individual case. There is no duty owed to disabled people in general in an employment context.
What if I get taken to a Tribunal over a reasonable adjustment?
A job applicant or employee who believes they have been unlawfully discriminated against because of disability can lodge their claim with an Employment Tribunal, usually within three months of the alleged act of discrimination taking place.
The Tribunal will hear evidence from both the disabled person and from the employer.
If you find yourself in this situation, you would have the opportunity to explain why you did not think it was reasonable to make an adjustment for the disabled person. For example, your defence might be that you did not have the financial resources to pay the cost of a particular adjustment, or because you did not think that an adjustment would actually enable the disabled person to do the job in question.
A decision is made in the light of the particular circumstances of each disabled person and each employer.
What should employers be doing to support the mental and physical wellbeing of their employees?
The first thing an employer should do is to be aware of how widespread and misunderstood mental health issues are. Secondly, it is important not to stereotype or make assumptions about mental health. Most people’s assumptions are remarkably ill-informed and often wrong.
Some employers have specific mental health policies, which commit to providing formal staff development and support.
Can I fire someone for misconduct if they have a mental health problem or disability that’s affecting other staff?
Employers may have to carry out a difficult balancing act where the behaviour of an employee with a mental health issue starts to have an impact on other staff. The courts sometimes place a high threshold on how people with serious mental illnesses should be treated in the workplace.
A decision last year that involved an employee who was suffering from paranoid schizophrenia is a case in point. The individual was on medication when he returned to work, but subsequently (in accordance with his doctor’s advice) stopped taking it. Having stopped taking his drugs, his symptoms returned and he sexually assaulted two female colleagues. Unsurprisingly, the employer decided that the employee was guilty of gross misconduct and dismissed him. However, the court decided that the dismissal was unfair because the employer had not considered whether the employee, given his mental illness, was culpable for his actions.
None of this means that employers cannot dismiss employees who physically assault others, but it does show that if employers are aware of a serious mental health issue in one of their staff they should proceed with care.
One particular area of risk for employers is employees who have had a breakdown that required psychiatric treatment. If the employer is aware of this, there is a chance that the individual is treated as ‘damaged goods’, and therefore there is a significant risk that they will be discriminated against upon their return.
Alternatively, if their working environment causes them to have a second breakdown, the employer can find itself at the end of a personal injury claim with an employee saying that they cannot work again and seeking a high sum in damages. While not common, these circumstances do crop up, particularly in high pressure environments such as investment banking.
What is an employer’s duty of care?
Employers have a duty of care to their employees, which means that they should take all steps which are reasonably possible to ensure their health, safety and wellbeing. Demonstrating concern for the physical and mental health of your workers shouldn’t just be seen as a legal duty – there’s a clear business case, too.
Legally, employers must abide by relevant health and safety and employment law, as well as the common law duty of care. They also have a moral and ethical duty not to cause, or fail to prevent, physical or psychological injury, and must fulfil their responsibilities with regard to personal injury and negligence claims.
Requirements under an employer’s duty of care are wide-ranging and may manifest themselves in many different ways, such as:
- Clearly defining jobs and undertaking risk assessments.
- Ensuring a safe work environment.
- Providing adequate training and feedback on performance.
- Ensuring that staff do not work excessive hours.
- Providing areas for rest and relaxation.
- Protecting staff from bullying or harassment, either from colleagues or third parties.
- Protecting staff from discrimination.
- Providing communication channels for employees to raise concerns.
- Consulting employees on issues which concern them.
- An employer can be deemed to have breached their duty of care by failing to do everything that was reasonable in the circumstances to keep the employee safe from harm. Employees also have responsibilities for their health and wellbeing at work – for example, they are entitled by law to refuse to undertake work that isn’t safe without fear of disciplinary action.
- In addition to statutory health and safety duties, employers are under a general obligation to take reasonable care of the health and safety of employees in the workplace. This means that they have a duty towards people who may have mental health issues, and also towards other employees (if there is a risk of a staff member with a mental health issue doing harm to others).
- They also have a duty not to discriminate because of a person’s disability. It is often (but not always) the case that serious mental health issues will constitute a disability. This will often mean making reasonable adjustments to try to support those with mental ill-health.