Detailed notes and structure on disability discrimination
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Course
LPC - Legal Practice Course
Institution
LPC - Legal Practice Course
Full and in-depth structure and notes on disability discrimination. A highly detailed and clearly written step-by-step approach to understanding and answering exam questions. The document breaks down each element you need to cover to answer a question on this topic. Contains extensive but easily co...
Eligibility:
Whether ‘x’ is an employee or worker, they will be able to bring a claim.
‘x’ also does not need the required continuous period of employment of 2 years
However, ‘x’ must make sure to bring their claims within 3 months of the act of discrimination.
NOTE: if it is on-going – it is from the most recent act which the clock starts.
Protected characteristic: State detail in red.
Under s4 of the EA – disability is listed as a protected characteristic. Under s6 of the EA – the meaning of disability is
defined. Briefly, it covers 4 cumulative conditions:
A physical / mental impairment having a
Long term (12 months +)
Substantial (para 6) adverse effect on
Normal day-to-day activities
The burden is on the claimant to prove they are disabled
Impairment:
Words given its natural and normal meaning. It is not necessary to show the impairment is clinically recognised.
NOTE: The Equality Act (Disability) Regs 2010 an addiction to alcohol / nicotine … is not an impairment, nor is a tendency
to steal / commit sexual abuse /voyeurism, nor is hay fever.
There are excluded / aggravating factors which the court takes into account…
Wood v Durham: the claimant who was dismissed for shoplifting, could not succeed with a claim for disability
discrimination even though their shoplifting was a manifestation of their PTSD – a disability – since the effective
cause of the dismissal was the excluded condition.
Case law suggests that it is not how an impairment is caused that is important, but rather the effect it has – Power v
Panasonic – where depression was caused by alcoholism the fact that the cause of the impairment was an addiction, did
not mean it was not covered.
Long term:
Schedule 1 para 2 EA:
Para 2 (1) - The effect of an impairment is long-term if:
a. It has lasted for at least 12 months
b. It is likely to last for at least 12 months, or
c. It is likely to last for the rest of ‘x’s life.
must have lasted 12 months or will likely last 12 months – likely means could well last longer than 12 months (ODI para C3)
Cease and recurrence:
If an impairment ceases to have a substantial adverse effect of ‘x’s ability to carry out normal day-to-day activities, it is
treated as continuing if the adverse effect is likely to recur.
Recuring sporadically or only short periods of time can still qualify as impairments having ‘long-term’ effects.
Sullivan – the ‘long-term’ factor was not met as the years which the impairment occurred were 4 years apart and within this
time the impairment improved. Additionally, the impairment was based on life events which did not have the nature of
recurrence.
Perceived disabilities:
Substantial: The Act covers people who are discriminated against because the
Must be more than trivial s212(2) Factors to consider: discriminator perceives ‘x’ to be disabled and thus discriminates
against ‘x’ due to their perceived disability.
Time taken to carry out the activity
Additionally, the discriminator must consider the disability to
Way it is carried out
believe the impairment to be substantial and long-term – Coffey.
Cumulative effects of an impairment
Effects on behaviour… Past disabilities:
How the normal day-to-day activity is carried out Past disabilities (now cured) are protected under Sch 1 para 9 EA.
B7 ODI – specifically gives example of back-pain and effect and normal day-to-day activities. ODI b12 & D23 – both talk
about effects of treatment and impact of medication should be ignored (ONLY exception to this is glasses).
The adverse effect on normal day-to-day activities:
The ET must find that the impairment adversely effects the claimant’s ability to carry out day-to-day activities.
The effect must be on normal day-to-day activities – but this will include the activities relevant to participation in
professional life, even if specialised – Peterson v Commissioner of Police for the Metropolis.
ETA / Goodwin – should look at what ‘X’ cannot do / can only do with difficulty rather than what ‘X’ can do.
ODI D4: ‘Normal’ given ordinary everyday meaning. D5: everyday activities does not have to be ‘normal’ for everyone.
D11 – the appendix gives examples but it is not exhaustive. [examples from appendix: see below}
, Disability discrimination
What was the potential unlawful act?
Employers are prohibited from committing a range of unlawful acts. These acts fall under s39-40.
On the facts, the potential unlawful act was…Recruitment / Promotion / Dismissal / Harassment / Post-employment /
Subjecting ‘x’ to a detriment.
- What is an unlawful act?
- What was the unlawful act on the facts?
- How did the unlawful act occur?
Recruitment:
s39(1): An employer must not discriminate against a person -
(a) in the arrangements the employer makes for deciding to whom to offer employment.
(b) as to the terms on which the employer offers the employee employment.
(c) by not offering employment.
Was the unlawful act discrimination in recruitment, and how?…(the unlawful act was discriminating in recruitment
because ‘x’ did not offer ‘y’ employment based on their protected characteristic…)
NOTE: S159 – allows an employer to take protected characteristics into account when deciding who to recruit if there is
an underrepresentation of the individual with the protected characteristic - as long as – the candidates are equally
qualified and the positive discrimination has a legitimate aim.
Promotions and dismissals:
S39(2): An employer must not discriminate against an employee in terms of -
(a) the employees terms of employment;
(b)in the way the employer affords the employee access, or by not affording the employee access, to
opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;
(c) by dismissing the employee;
(d) by subjecting B to any other detriment.
Dismissals includes constructive dismissals – s39(7)
Dismissals, even those which are later withdrawn, can give rise to a detriment
Detriment does not include harassment
Was the unlawful act discrimination in promotion/opportunity or discrimination in dismissal, and how?
Post-employment matter:
S108 prohibits discrimination after the employment relationship has ended – the discrimination must arise out of and be
closely connected to the former employment relationship.
Was the unlawful act discrimination in a post-employment matter, and how?
Subjecting a person to a detriment:
S39(2)(d) prohibits discrimination against an employee by subjecting them to a detriment.
Was the unlawful discrimination subjecting a person to detriment, and what is the detriment?
What claim is it?
1. Failure to make reasonable adjustments – NO DEFENCE
2. Discrimination arising from disability – NO COMPARATOR NEEDED + PARTIAL
DEFENCE
3. Direct discrim – s13 + NO DEFENCE
4. Indirect discrim – 19 (only go here if employer did not know about disability + defence is only
partial – PCP had proportionate means of achieving a legitimate aim)
5. Harassment – 26 – NO DEFENCE
6. Victimisation – 27 – NO DEFENCE
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