LEGAL PRACTICE COURSE
Employment Law
Large Group 7
Topic(s):
Disability discrimination
Remedies for discrimination
Learning Outcomes:
By the end of this session, you will be able to:
Understand and apply the definition of disability
Appreciate and advise on the claims relevant to claimants with a disability
Appreciate and apply the relevant duties which arise in the case of an employee with a
disability
Understand the remedies for discrimination claims generally
Session Activities:
Tutor-led overview on disability discrimination and remedies for discrimination claims
generally with questions throughout
Materials Attached:
Session outline
Preparation for Session:
Reading: Articles on Practical Law entitled ‘Disability discrimination’ and ‘Discrimination in
employment: compensation and other remedies’
Read ss.6, 13, 15, 20 and 21 Equality Act 2010
Read the attached session outline
Locate and read the ‘Guidance on matters to be taken into account in determining
questions relating to the definition of disability’ (the ‘Guidance’)
Locate the EHRC ‘Employment Statutory Code of Practice’ (the ‘Code’) and read
Chapters 5 and 6
Post-Session:
Review what you have learned in the session
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DISCRIMINATION (2)
-Remember, the prohibited conducts (direct, indirect, victimisation and harassment apply to
the each of the protected characteristics) see what conduct applies to the PC in the facts
-For the exam, will be given an individual with 1 protected characteristic, but there may be
more than one claim! – see if the facts give rise to more than one claim
Part 1 – Disability Discrimination
In the assessment C will have 1 PC. But there can be more than 1 claim.
Firstly, you need to show someone is disabled for the purpose of the act.
Disability is set out in s6. Before you identify different PC of R you need to decide whether
the C has a disability.
1. Definition of disability
As you have learnt from LG 6, ‘disability’ is one of the protected characteristics under the
Equality Act 2010 (‘EA10’). The definition of disability is found in s.6 EA10 as follows:
“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.”
Therefore, before a claimant can bring a claim in employment tribunal, he/she must show
that:
He/she has a physical or mental impairment
The impairment has an adverse effect on normal day-to-day activities
The effect is substantial
The effect is long-term
Note there are some exceptions to this definition which will be discussed at para 1.5 below
S6(b) impairment includes physical or mental impairment. No definition of what constitutes
an impairment in EA. There is no need for a C to establish a medically diagnosed cause for
their impairment. It’s the effect of the impairment that is considered.
Dispute usually lies whether the effect is substantial and long term.
Firstly identify what the impairment is. Then, does it have an adverse effect on day to day
activities ie personal life and working life issues. EA doesn’t provide definition. Its activities
normal person will be able to carry out.
1.1 Impairment
Physical
Mental
The first limb of the definition requires the individual to have a physical or mental
impairment. There is no definition of what constitutes an impairment in the EA10. However,
the Guidance states that there is no need for a claimant to establish a medically diagnosed
cause for their impairment. It is the effect of the impairment which must be considered and
not the cause.
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In many cases, there will be no dispute whether a person has an impairment. Any
disagreement is more likely to be about whether the effects of the impairment are sufficient to
fall within the definition and in particular whether they are long-term. Whether a person is
disabled for the purposes of the EA10 is generally determined by reference to the effect that
an impairment has on that person’s ability to carry out normal day-to-day activities. An
exception to this is a person with severe disfigurement (see paragraph 1.3 below).
A disability can arise from a wide range of impairments which can be:
sensory impairments, such as those affecting sight or hearing;
impairments with fluctuating or recurring effects such as rheumatoid arthritis, chronic
fatigue syndrome, fibromyalgia, depression and epilepsy;
progressive, such as motor neurone disease, muscular dystrophy and dementia;
organ specific, including respiratory conditions, such as asthma, and cardiovascular
diseases, including thrombosis, stroke and heart disease;
developmental, such as autistic spectrum disorders, dyslexia and dyspraxia;
mental health conditions with symptoms such as anxiety or panic attacks; eating
disorders; bipolar affective disorders; obsessive compulsive disorders; personality
disorders; post-traumatic stress disorder; and
mental illnesses, such as depression and schizophrenia.
1.2 Adverse effect on normal day-to-day activities
The impairment will only amount to a disability if it has a substantial adverse effect on normal
day-to-day activities. Again, the EA10 does not define what constitutes normal day-to-day
activities, but the Guidance assists by clarifying that “in general, day-to-day activities are
things people do on a regular or daily basis”. This will include activities carried out in both
personal life and working life.
However, where activities are themselves highly specialised or involve highly specialised
levels of attainment, they would not be regarded as normal day-to-day activities for most
people.
Exercise 1
Give examples of normal day-to-day activities, both in personal life and working life.
Walking. Getting dressed. Having a shower. Going shopping. Commuting on the tube or to
work. Sitting at your desk and working.
1.3 Substantial adverse effect
‘More than minor or trivial’
Includes where a worker can carry out the activity, but with restrictions, for example:
■ only for short periods of time or more slowly than usual (e.g. cerebral palsy);
■ only in a particular way (e.g. OCD); or
■ only under certain environmental conditions
(e.g. rheumatoid arthritis)
■ If individual receives medical treatment or uses aids, will assess ‘substantial’ effect
without the treatment or aid
■ Severe disfigurement = substantial adverse effect
■ Progressive condition = substantial adverse effect if some effect now and likely to be
substantial in the future
Exception to aid – glasses/contact lenses
Tattoos and piercings not included
E.g. motor neuron disease, dementia
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