The Problem is no longer the dog…. The Equality Act 2010 & disability discrimination law Catherine Casserley & Claire McCann.

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Presentation transcript:

The Problem is no longer the dog…. The Equality Act 2010 & disability discrimination law Catherine Casserley & Claire McCann

The key changes: Definition of Disability (section 6, Schedule 1 & Guidance) Direct Discrimination: now extends to employment, services, education, associations etc (section 13) Discrimination & harassment based on association & perception (section 13 & section 26(1)) Comparators (section 23)

More key changes: Discrimination arising from disability (section 15) Indirect discrimination (section 19) Duty to make reasonable adjustments: extent of duty & knowledge requirement Pre-employment enquiries (section 60)

Meaning of disability Section 6 Substantial now given statutory meaning: more than minor or trivial (s.212) Schedule 1: no list of capacities but see Guidance on matters to be taken into account Likely as per Boyle v SCA Packaging

Section 13 Because of: association & perception – see Explanatory Notes (para 59) & EHRC Code Perceived disability? Avoiding definition in section 6? Comparator (section 23): disabled persons abilities – see Aylott v Stockton on Tees BC Stereotyping Direct Discrimination

Arising from Section 15 Arising in consequence of….: Broad scope? See Murphy v (1) Slough BC & (2) Governing Body of Langley Wood School No comparator: unfavourable treatment Knowledge of disability (but not of effects) Justification defence = legitimate aim & proportionality: relevance of reasonable adjustments?

Indirect Discrimination Section 19 Overlap? Consider anticipatory situations affecting groups of disabled people No knowledge of disability required Comparison exercise (section 23): abilities not imported into material circumstances

Reasonable Adjustments Section 20 (duty) & s.21 (contravention) 3 requirements: (1) PCP (2) Physical features & (3) Auxiliary aids Whether it is reasonable: Regulations under section 22 (none yet) [s.18B of DDA] Extent of duty: more limited obligations to potential applicants? Knowledge of disability & effects: distinction between potential applicants, applicants & employees?

Pre-employment Enquiries Section 60 Employers can only ask questions about health/disability which are necessary for the purposes of…. Assessments (eg: selection test) Intrinsic functions Monitoring Positive action Occupational requirement

Pre-employment Enquiries EHRC has power of enforcement No individual claim but…. Drawing inferences of discrimination Explanatory Notes has EGs (para 202) No guidance in Draft Code

The Problem is no longer the dog…. The Equality Act 2010 & disability discrimination law Catherine Casserley & Claire McCann