A fundamental flaw in the Equality Act’s disability rights protection mechanism is that it leaves the disabled at a substantial—and arguably disproportionate—disadvantage in private-sector employment.
The Equality Act 2010 (EA) is the UK’s main antidiscrimination law. The way this act frames accessibility and non-discrimination obligations towards private-sector employers vs. service providers/public bodies is different. The obligation on public authorities/service providers (shops etc.) are anticipatory in nature, focusing on the larger disabled population, while that on employers is consideration on a case-by-case basis. This means that employers don’t have even to think about accessibility implications until they’re forced to. This blog will demonstrate the legal distinction to be artificial and unnecessary, and that retaining it will not result in the creation of a more accessible workforce.
The EA prevents discrimination on certain grounds, which include age, disability, gender, marital status, religion and race. These grounds are known as ‘protected characteristics’, and are listed in Section 4 of the act. Section 6 deals with the protected characteristic of disability. The act says that a person has a disability in law if they has a physical or mental impairment, and if said impairment would have a “substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities”. According to Section 15, discrimination against a “disabled person” occurs if a disabled person experiences unfavourable treatment at the hands of another person because of their disability, and this other person is unable to demonstrate that this is “a proportionate means of achieving a legitimate aim”. You can be excused from liability if you didn’t know, and “could not reasonably be expected to know”, that B had a disability.
The non-discrimination and accessibility duties on both employers and service providers are to make reasonable adjustments. Section 20 of the Equality Act 2010 states that the requirements to do this are to take reasonable steps to mitigate/avoid disadvantages caused to a disabled person by a PCP or physical feature and/or providing auxiliary aids. Making the duty meaningful, it has been ensured that disabled persons aren’t asked to pay for the costs of the duty. Failure to comply with this duty in relation to a disabled person is discrimination under Section 21 of the Equality Act.
Employers’ duties to individual disabled job applicants/employees
The most common type of claim is a ‘Provision, Criterion or Practice’ (PCP) claim, but there can also be claims regarding auxiliary aids/services, or claims about physical features of buildings. PCP will generally be focused on, because it is beyond the scope of this blog to go into detail into all three types of claim, and because the duties arising from a PCP claim are the same as those arising anywhere else.
The PCP must put the disabled person at a “substantial”, or “more than minor or trivial disadvantage”. The defence to a claim of discrimination under this duty is if an employer did not have actual or constructive knowledge (i.e., wasn’t aware, and couldn’t reasonably be expected to be aware, of an employee’s disability and/or the substantial disadvantage). It isn’t a defence to claim that the employer didn’t know what adjustment to make. Even though there is no duty on the employee/applicant to suggest reasonable adjustments, the employer is well-advised to assess what might be required.
In practice, not consulting the disabled person could lead to a successful claim of discrimination, because not knowing about adjustments isn’t a defence. It has to be determined what adjustments are “reasonable”, which is an objective function for a tribunal to perform. The factors taken into account here include the following:
In many cases, there may be no costs associated with an adjustment. The Employment Code of Practice has the following to say about costs (at 6.25): “Effective and practicable adjustments for disabled workers often involve little or no cost or disruption and are therefore very likely to be reasonable for an employer to have to make. Even if an adjustment has a significant cost associated with it, it may still be cost-effective in overall terms – for example, compared with the costs of recruiting and training a new member of staff – and so may still be a reasonable adjustment to have to make”. The duty of compliance rests on the employer. However, for there to be a shift in the burden of proof under Section 136 of the Equality Act, there must have been some indication of what
types of adjustments should have been made. The employer should have enough information for it to effectively deal with the question of whether it is reasonable or not.
This is a very different duty to that on employers. Firstly, it applies to public bodies, service providers and/or bodies exercising a public function (public authorities, banks, shops). These entities have to consider their duties to “disabled people generally”, rather than a specific disabled person. The Equality and Human Rights Commission have, however, made clear that this is not any less of an obligation: a public body is under a duty to make reasonable adjustments if it becomes aware of the needs of a specific disabled person. In addition, as stated in their Statutory Code, having a standard of “just about accessible” isn’t enough, the standard has to be that access should approximate, as closely as possible, that of non-disabled persons.
The duty being “anticipatory” means that public bodies must consider in advance what adjustments people with various types of disabilities may require, and not just case-by-case. This, in turn, means that they may have to make an adjustment without knowing of a specific disabled person, and perhaps even take steps which it may not be reasonable to take on an ad hoc basis.
Disabled persons, even in the UK, a country in which their rights are strongly protected by advanced legal mechanisms, are employed at a lower rate than their able-bodied counterparts. This is partly due to systemic factors, but also, to inaccessibility in the workforce. The tightening of reasonable adjustment duties on employers would help reduce this problem. Greater levels of standardisation, based on good practice, the employers’ practice code and the service code, would go some way towards solving this problem. This, in turn, would encourage more disabled people to look for work, as many might have greater levels of certainty about their rights being vindicated, and achieving certain basic levels of reasonable adjustments with most employers.
Though many employers now welcome persons from diverse groups, including the disabled, to apply for roles in their organisations, this doesn’t go far enough towards solving the problem of high unemployment among the disabled. This solution of making the duty anticipatory would also not be the only thing that would have to be done. Costs are, undeniably an important factor. The fact that the realities of the 21st century UK economy still mean that financial support for private-sector employers is insufficient enough to mean that some reasonable adjustments is a problem to which the law cannot easily find a solution, without the help of parliament.
Making the duty anticipatory also makes what the disability rights activist Haben Girma calls “business common sense”. Employers, often, have to have two hats on: as employers, and as service providers. Thinking about accessibility for their workers might even improve the thought-processes that go into meeting their obligations as service providers, meaning that the switch between “hats” is not overly difficult. Often, accessibility means ‘easier to navigate/use’, and greater adaptability, even for the non-disabled, meaning accessibility is a benefit for even those who are not disabled. To use Girma’s example, if a video is captioned for the hearing-impaired, and someone is “situationally disabled” (e.g., they want to watch it, but can’t watch it with the volume on), captions would greatly benefit them. This spill-over benefit would result in a greater number of views for a captioned video vs. a non-captioned one.
Finally, there are still so many situations in which the rights and needs of the disabled, both as employees and as users of service providers, are not considered. This is because the current law still hasn’t quite helped to empower the disabled from being the “forgotten minority” to a minority whose issues exercise the public mind and garner the types of public and attention that issues surrounding this protected characteristic haven’t previously done. Professor Tarunab Khaitan, in a public talk at Mansfield College, Oxford, in which he spoke about the EA, said that the law, and lawmakers, are often a step ahead of social morality. If Britain’s lawmakers do, indeed, want to be leaders of social and societal change, they can start now by making this change in the law.
By Abhishek Dhol, First Year student – Bachelors of Law (LLB), Queen Mary University of London