Disability Discrimination UK -This is the third section of "case law analysis." We discuss why Ms. L Douglas's case was unsuccessful in all aspects of her numerous claims to help avoid similar errors. Free legal advice on disability discrimination UK.
In this section of the case law, Employment Judge Johnson list pertinent sections of the Equality Act 2010 relevant to the case. This information is crucial for litigants representing themselves and employees experiencing workplace discrimination. It is a fact that even the most severe cases of discrimination can fail if not properly substantiated, often due to a lack of understanding of workplace discrimination in the UK, as seen in the case of Ms. L Douglas.
We offer comprehensive analyses of each key aspect of these sections, with links to relevant materials highlighted in red and green. All our members are welcome to ask questions on our forum.
Case Number: 2501444/2020
THE EMPLOYMENT TRIBUNALS
Claimant: Ms L Douglas
Respondent: National Probation Service
Heard at: Teesside Justice Hearing Centre
On: Monday 14th February – Thursday 17th February 2022
Before: Employment Judge Johnson
Members: Mrs C Hunter
Mr G Gallagher
Representation:
Claimant: Mr R Owen (CAB)
Respondent: Mr J McHugh of Counsel
JUDGMENT
The law
33. The remaining claims brought by the claimant engage the provisions of the
Equality Act 2010. The relevant sections are set out below:-
Section 6 Disability Made Readable
(1) An employee has disability if--
(a) he or she has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on that employee's
ability to carry out normal day-to-day activities. The list of activities can be found here > > >
(2) A reference to a disabled person is a reference to a person who has a
disability.
(3) In relation to the protected characteristic of disability--
(a) a reference to a person who has a particular protected characteristic is
a reference to a person who has a particular disability;
(b) a reference to persons who share a protected characteristic is a
reference to persons who have the same disability.
(4) This Act (except Part 12 and section 190) applies in relation to a person
who has had a disability as it applies in relation to a person who has the
disability; accordingly (except in that Part and that section)-both exceptions
are not relevant to emplyment part 12 refers to [disabled persons transport:
e.g taxi] and section 190 to [improvements to let dwellings houses]
(a) a reference (however expressed) to a person who has a disability
includes a reference to a person who has had the disability, and
(b) a reference (however expressed) to a person who does not have a
disability includes a reference to a person who has not had the
Section 20 Duty to make adjustments
(1) Where this Act imposes a duty to make reasonable adjustments on a person,
this section, sections 21 and 22 and the applicable Schedule apply; and for
those purposes, a person on whom the duty is imposed is referred to as A.
(2) The duty comprises the following three requirements.
(3) The first requirement is a requirement, where a provision, criterion or
practice of A's puts a disabled person at a substantial disadvantage in
relation to a relevant matter in comparison with persons who are not
disabled, to take such steps as it is reasonable to have to take to avoid the
disadvantage.
(4) The second requirement is a requirement, where a physical feature puts a
disabled person at a substantial disadvantage in relation to a relevant matter
in comparison with persons who are not disabled, to take such steps as it is
reasonable to have to take to avoid the disadvantage.
(5) The third requirement is a requirement, where a disabled person would, but
for the provision of an auxiliary aid, be put at a substantial disadvantage in
relation to a relevant matter in comparison with persons who are not
disabled, to take such steps as it is reasonable to have to take to provide the
auxiliary aid.
(6) Where the first or third requirement relates to the provision of information,
the steps which it is reasonable for A to have to take include steps for
ensuring that in the circumstances concerned the information is provided in
an accessible format.
(7) A person (A) who is subject to a duty to make reasonable adjustments is not
(subject to express provision to the contrary) entitled to require a disabled
person, in relation to whom A is required to comply with the duty, to pay to
any extent A's costs of complying with the duty.
(8) A reference in section 21 or 22 or an applicable Schedule to the first, second
or third requirement is to be construed in accordance with this section.
(9) In relation to the second requirement, a reference in this section or an
applicable Schedule to avoiding a substantial disadvantage includes a
reference to--
(a) removing the physical feature in question,
(b) altering it, or
(c) providing a reasonable means of avoiding it.
(10) A reference in this section, section 21 or 22 or an applicable Schedule (apart
from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to-
-
(a) a feature arising from the design or construction of a building,
(b) a feature of an approach to, exit from or access to a building,
(c) a fixture or fitting, or furniture, furnishings, materials, equipment or
other chattels, in or on premises, or
(d) any other physical element or quality.
(11) A reference in this section, section 21 or 22 or an applicable Schedule to an
auxiliary aid includes a reference to an auxiliary service.
(12) A reference in this section or an applicable Schedule to chattels is to be
read, in relation to Scotland, as a reference to moveable property.
(13) The applicable Schedule is, in relation to the Part of this Act specified in the
first column of the Table, the Schedule specified in the second column.
Section 21 Failure to comply with duty
(1) A failure to comply with the first, second or third requirement is a failure to
comply with a duty to make reasonable adjustments.
(2) A discriminates against a disabled person if A fails to comply with that duty in
relation to that person.
(3) A provision of an applicable Schedule which imposes a duty to comply with
the first, second or third requirement applies only for the purpose of
establishing whether A has contravened this Act by virtue of subsection (2); a
failure to comply is, accordingly, not actionable by virtue of another provision
of this Act or otherwise.
Section 26 Harassment
(1) A person (A) harasses another (B) if--
(a) A engages in unwanted conduct related to a relevant protected
characteristic, and
(b) the conduct has the purpose or effect of--
(i) violating B's dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or
offensive environment for B
(2) A also harasses B if--
(a) A engages in unwanted conduct of a sexual nature, and
(b) the conduct has the purpose or effect referred to in subsection (1)(b).
(3) A also harasses B if--
(a) A or another person engages in unwanted conduct of a sexual nature
or that is related to gender reassignment or sex,
(b) the conduct has the purpose or effect referred to in subsection (1)(b),
and
(c) because of B's rejection of or submission to the conduct, A treats B
less favourably than A would treat B if B had not rejected or submitted
to the conduct.
(4) In deciding whether conduct has the effect referred to in subsection (1)(b),
each of the following must be taken into account--
(a) the perception of B;
(b) the other circumstances of the case;
(c) whether it is reasonable for the conduct to have that effect.
(5) The relevant protected characteristics are--
age;
disability;
gender reassignment;
race;
religion or belief;
sex;
sexual orientation.
Section 27 Victimisation
(1) A person (A) victimises another person (B) if A subjects B to a detriment
mbecause--
(a) B does a protected act, or
(b) A believes that B has done, or may do, a protected act.
(2) Each of the following is a protected act--
(a) bringing proceedings under this Act;
(b) giving evidence or information in connection with proceedings under
(c) doing any other thing for the purposes of or in connection with this Act;
(d) making an allegation (whether or not express) that A or another person
has contravened this Act.
(3) Giving false evidence or information, or making a false allegation, is not a
protected act if the evidence or information is given, or the allegation is
made, in bad faith.
(4) This section applies only where the person subjected to a detriment is an
individual.
(5) The reference to contravening this Act includes a reference to committing a
breach of an equality clause or rule.
Section 39 Employees and applicants
(1) An employer (A) must not discriminate against a person (B)--
(a) in the arrangements A makes for deciding to whom to offer
employment;
(b) as to the terms on which A offers B employment;
(c) by not offering B employment.
(2) An employer (A) must not discriminate against an employee of A's (B)--
(a) as to B's terms of employment;
(b) in the way A affords B access, or by not affording B access, to
opportunities for promotion, transfer or training or for receiving any
other benefit, facility or service;
(c) by dismissing B;
(d) by subjecting B to any other detriment.
(3) An employer (A) must not victimise a person (B)--
(a) in the arrangements A makes for deciding to whom to offer
employment;
(b) as to the terms on which A offers B employment;
(c) by not offering B employment.
(4) An employer (A) must not victimise an employee of A's (B)--
(a) as to B's terms of employment;
(b) in the way A affords B access, or by not affording B access, to
opportunities for promotion, transfer or training or for any other benefit,
facility or service;
(c) by dismissing B;
(d) by subjecting B to any other detriment.
(5) A duty to make reasonable adjustments applies to an employer.
Section 136 Burden of proof
(1) This section applies to any proceedings relating to a contravention of this
Act.
(2) If there are facts from which the court could decide, in the absence of any
other explanation, that a person (A) contravened the provision concerned,
the court must hold that the contravention occurred.
1. Impairment
Regulations may make provision for a condition of a prescribed description
to be, or not to be, an impairment.
2. Long-term effects
(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 the life of the person affected.
(2) If an impairment ceases to have a substantial adverse effect on a
person's ability to carry out normal day-to-day activities, it is to be
treated as continuing to have that effect if that effect is likely to recur.
(3) For the purposes of sub-paragraph (2), the likelihood of an effect
recurring is to be disregarded in such circumstances as may be
prescribed.
(4) Regulations may prescribe circumstances in which, despite sub-
paragraph (1), an effect is to be treated as being, or as not being,
long-term.
3. Severe disfigurement
(1) An impairment which consists of a severe disfigurement is to be
treated as having a substantial adverse effect on the ability of the
person concerned to carry out normal day-to-day activities.
(2) Regulations may provide that in prescribed circumstances a severe
disfigurement is not to be treated as having that effect.
(3) The regulations may, in particular, make provision in relation to
deliberately acquired disfigurement.
4. Substantial adverse effects
Regulations may make provision for an effect of a prescribed description on
the ability of a person to carry out normal day-to-day activities to be treated
as being, or as not being, a substantial adverse effect.
5. Effect of medical treatment
(1) An impairment is to be treated as having a substantial adverse effect
on the ability of the person concerned to carry out normal day-to-day
activities if--
(a) measures are being taken to treat or correct it, and
(b) but for that, it would be likely to have that effect.
(2) "Measures" includes, in particular, medical treatment and the use of a
prosthesis or other aid.
(3) Sub-paragraph (1) does not apply--
(a) in relation to the impairment of a person's sight, to the extent
that the impairment is, in the person's case, correctable by
spectacles or contact lenses or in such other ways as may be
prescribed;
(b) in relation to such other impairments as may be prescribed,
in such circumstances as are prescribed.
6. Certain medical conditions
(1) Cancer, HIV infection and multiple sclerosis are each a disability.
(2) HIV infection is infection by a virus capable of causing the Acquired
Immune Deficiency Syndrome.
7. Deemed disability
(1) Regulations may provide for persons of prescribed descriptions to be
treated as having disabilities.
(2) The regulations may prescribe circumstances in which a person who
has a disability is to be treated as no longer having the disability.
(3) This paragraph does not affect the other provisions of this Schedule.
8. Progressive conditions
(1) This paragraph applies to a person (P) if--
(a) P has a progressive condition,
(b) as a result of that condition P has an impairment which has
(or had) an effect on P's ability to carry out normal day-to-day
activities, but
(c) the effect is not (or was not) a substantial adverse effect.
(2) P is to be taken to have an impairment which has a substantial
adverse effect if the condition is likely to result in P having such an
impairment.
(3) Regulations may make provision for a condition of a prescribed
description to be treated as being, or as not being, progressive.
9. Past disabilities
(1) A question as to whether a person had a disability at a particular time
("the relevant time") is to be determined, for the purposes of section 6,
as if the provisions of, or made under, this Act were in force when the
act complained of was done had been in force at the relevant time.
(2) The relevant time may be a time before the coming into force of the
provision of this Act to which the question relates.
34. Before an employer can be answerable for disability discrimination against an
employee, the employer must have actual or constructive knowledge that the
employee was a disabled person. For that purpose, the required knowledge,
whether actual or constructive, is of the facts constituting the employee’s disability
as identified in Section 6 of the Equality Act 2010. Those facts can be regarded
as having 3 elements to them, namely (a) a physical or mental impairment, which
has (b) a substantial and long-term adverse effect on (c) his ability to carry out
normal day to day activities. Whether those elements are satisfied in any case
depends also on the clarification as to their sense. Provided the employer has
actual or constructive knowledge of the facts constituting the employee’s
disability, the employer does not also need to know that, as a matter of law, the
consequence of such facts is that the employee is a disabled person as defined in
Section 6. [A Limited v Z – UKEAT-0273/1ARN].
35. In cases where there is an allegation of failure to make reasonable adjustments
contrary to Sections 20 – 21, the duty to make any such adjustment arises in the
following circumstances:-
(i) The employer imposes a provision, criterion or practice which puts the
disabled person at a substantial disadvantage in relation to a relevant
atter in comparison with persons who are not disabled. The requirement
is to take such steps as it is reasonable to have to take to avoid the
disadvantage. The burden is upon the claimant to establish the following:-
(a) What is the provision, criterion or practice?
(b) How does that put disabled persons at a disadvantage?
(c) Does it put the claimant at a personal disadvantage?
(d) What is the proposed adjustment?
(e) How would that adjustment remove the disadvantage?
[Archibald v Fife Council – 2004 IRLR651] and [Griffiths v Secretary of
State for Work and Pensions – 2016 IRLR216]
36. The definition of harassment in Section 26 covers harassment which “relates” to
the relevant protected characteristic and not mere harassment which is “because
of” the characteristic. That requires a consideration of the mental processes of
the putative harasser [GMB v Henderson – 2017 IRLR340]. In determining
whether the conduct has the effect of violating the employee’s dignity or creating
the relevant environment for the purposes of Section 26, the tribunal must take
into account the employee’s perception, the other circumstances of the case and
whether it is reasonable for the conduct to have that effect. In Land Registry v
Grant [2011 IRLR748] the Court of Appeal focussed on the words, “intimidating,
hostile, degrading, humiliating or offensive” and observed that:-
“Tribunals must not cheapen the significance of these words. They are an
important control to prevent trivial acts causing minor upsets being caught
by the concept of harassment.”
37. Victimisation under Section 27 effectively provides protection from retaliation to
employees who complain about contravention of the Equality Act 2010.
Employees are protected from being subjected to detriment as a result of having
performed a protected act. The complainant need only show that she has been
treated badly, not that others have been treated better. However, the treatment
which amounts to a detriment must be because of the protected act. The
protected act thus has to be an effective and substantial cause of the employer’s
detrimental actions, but does not have to be the principal cause [Chief Constable
of West Yorkshire Police v Khan – 2001 IRLR830].
38. The tribunal sets out below its conclusion on the remaining claims brought by the
claimant for having applied the law as set out above to its findings of fact as set
out above
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