LRD Booklets November 2013

Promoting equality for disabled workers - a guide for trade union reps


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Introduction

Introduction (610 words)

Disabled people are statistically less able to participate in employment compared to their non-disabled colleagues. In 2012, the Labour Force Survey ...
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Chapter 1

1. LEGAL DEVELOPMENTS PROTECTING DISABLED WORKERS (251 words)

The UK Parliament ratified the United Nations Convention on the Rights of Persons with Disabilities in 2009. As a result, the government is required ...
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Who is protected by the Equality Act 2010? (126 words)

The EA 2010 prohibits discrimination against the following workers who may have ...
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Volunteers (545 words)

In 2012, the Supreme Court confirmed that volunteers are not protected from discrimination by the employment provisions of the EA 2010. In a case ...
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Interns (86 words)

In the case of X v Mid Sussex Citizens Advice Bureau [2012] UKSC 59, interns received some words of encouragement from the Judge who confirmed that ...
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Workers outside Great Britain (42 words)

The EA 2010 covers all those working in Great Britain (Northern Ireland is covered by separate legislation). In regard to workers outside Great ...
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Seafarers and discrimination (72 words)

Since August 2011, special regulations, the Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011, apply to seafarers. The regulations, ...
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Illegal workers and discrimination (55 words)

As a general rule, an employer cannot escape responsibility for acts of discrimination merely by pointing to the fact that the contract is illegal. ...
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Disability discrimination under the Equality Act 2010 (54 words)

The EA 2010 makes it unlawful to discriminate against disabled people. While this booklet focuses on disability discrimination at work, the EA 2010 ...
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What is a disability under the Equality Act 2010? (131 words)

Under section 6 of the EA 2010, a person has a disability if they have a “physical or mental impairment” that has a “substantial and long-term ...
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Physical or mental impairment (122 words)

Reps should be aware that some disabilities, especially mental health conditions, may be less obvious to employers than others. In these cases, it ...
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Substantial and long-term adverse effect (120 words)

“Substantial” means “more than minor or trivial” (section 212(1) EA 2010). In other words, if something cannot be regarded as “trivial”, ...
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What are normal day-to-day activities? (862 words)

There is no longer a statutory list of day-to-day activities as the courts see it as restricting the application of the EA 2010. Instead, a person ...
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Certain conditions are deemed to be a disability (68 words)

Someone with cancer, HIV or multiple sclerosis is protected by the EA 2010 automatically on diagnosis and there is no need to show evidence of a ...
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Progressive conditions (87 words)

There are special rules for progressive conditions (see Schedule 1, Paragraph 8 EA 2010). Someone with a progressive condition is protected as soon ...
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Conditions that can be corrected by medication or treatment (63 words)

The EA 2010 (Schedule 1 Part 1 section 5(1) (b)) says that where the effects of impairment can be removed by using interventions, for example, drugs ...
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People who had a disability but have since recovered (73 words)

The EA 2010 protects someone who was disabled in the past, even though they have since recovered, i.e. for example, a woman who suffered with ...
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Recurring conditions (202 words)

Recurring conditions are covered by the EA 2010, as long as there is evidence that the condition is “likely” to recur and have a substantial and ...
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Impairments excluded from the definition of a disability (54 words)

The EA 2010 excludes addiction to alcohol, drugs, voyeurism, tendencies to set fires, steal and abuse others from being a disability. These ...
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European perspective (152 words)

The European Court of Justice recently issued guidance on the question of whether a person is disabled. The guidance applies to countries that are ...
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Proving the existence of disability (611 words)

As explained above, to be considered as having a disability, a person’s condition must have a substantial impact on their ability to carry out ...
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Chapter 2

2. TYPES OF DISABILITY DISCRIMINATION UNDER THE EQUALITY ACT 2010 (42 words)

There are five basic types of disability discrimination under the Equality Act 2010 (EA ...
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Direct discrimination (177 words)

The EA 2010 says that “a person directly discriminates against another person if, because of a protected characteristic, they treat them less ...
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What is less favourable treatment? (216 words)

Less favourable treatment is some sort of disadvantage suffered by the individual as a result of their disability, for example, failure to gain a ...
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The need for a comparator (104 words)

The test for direct discrimination is comparative. It is about comparing the treatment received by the person with the protected characteristic, to ...
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Associative discrimination and harassment (101 words)

The definition of direct discrimination is broad enough to prohibit discrimination against a person who does not have the protected characteristic ...
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Perception discrimination and harassment (44 words)

The definition of direct discrimination also prohibits perception discrimination or harassment. This is where an employee is treated less favourably ...
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Is there a defence to direct discrimination? (190 words)

There is no defence to direct discrimination. An employer is not allowed to justify less favourable treatment because of a protected characteristic. ...
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Indirect discrimination - the legal test (1,075 words)

Indirect discrimination is defined in section 19 of the EA 2010. It says that a person (A) indirectly discriminates against another (B) if A applies ...
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Discrimination arising from disability (441 words)

Section 15(1) of the EA 2010 provides for a new kind of offence: “discrimination arising from disability”. This is where a disabled person is ...
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Disability-related harassment (368 words)

The term “harassment” is often used loosely in a work setting, to describe unpleasant or bullying behaviour, but in the context of the EA 2010, ...
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Victimisation (329 words)

“Victimisation” is often used in a general sense to refer to being picked on or bullied. It has a very specific legal definition in the EA 2010. ...
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More information (57 words)

Several unions have produced updated online guides and practical toolkits on the Equality Act 2010 and the Public Sector Equality Duty. (The Public ...
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What happens after employment has ended? (118 words)

The legal duty on the employer not to victimise does not end just because the employment has ended. For example, if employers normally provide ...
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The employer’s liability for discrimination and harassment (71 words)

Under the EA 2010, an employer is liable for all unlawful acts committed by their employees in the course of employment, whether or not the employer ...
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The employer’s “reasonable steps” defence (244 words)

An employer is not liable for unlawful acts committed by an employee if the employer can show it took “all reasonable steps” to prevent the ...
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EHRC Employment Code (176 words)

What are likely to be considered as reasonable steps by the tribunal is a difficult test. The EHRC Employment Code says that “an employer would be ...
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Harassment or discrimination outside work (70 words)

For an employer to be liable, the harassment or discrimination must take place “in the course of employment”. This phrase has a wide meaning, ...
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The duty to make reasonable adjustments for disabled workers (330 words)

A key concept and arguably the most significant aspect of the EA 2010 is the duty, under section 20 of the Act, to make reasonable adjustments (see ...
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Auxiliary aids (59 words)

Section 20(5) of the EA 2010 refers expressly to auxiliary aids. It says that where a disabled person would, but for the provision of an auxiliary ...
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Physical features (81 words)

Section 20(4) of the EA 2010 refers expressly to physical features. It says that where a physical feature puts a disabled person at a substantial ...
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Substantial disadvantage (88 words)

The disadvantage must be substantial. This means “more than minor or trivial” (section 212(1) EA 2010). The Office for Disability Issues’ ...
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Reasonable adjustments and sick pay (747 words)

Treating a disabled employee more favourably than non-disabled staff by paying extra sick pay will rarely be a reasonable adjustment (O’Hanlon v ...
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Bringing a claim of disability discrimination at the employment tribunal (56 words)

A worker does not need to have worked for their employer for a particular length of time before bringing a claim of discrimination to a tribunal. In ...
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Time limits (308 words)

The time limit for bringing a disability discrimination claim is three months from the date of the discriminatory act (not from the date when any ...
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Fees (40 words)

Disabled workers’ rights face further attack due to the coalition government’s introduction of fees to bring an employment claim at the tribunal. ...
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Remission scheme fees (226 words)

In October 2013, the government introduced new restrictions on the remission scheme it introduced earlier in the year. The remission scheme was set ...
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Costs at the tribunal (258 words)

As a rule, each party has to meet their own legal costs, but there are circumstances in which costs may be awarded. ...
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Outcome of a final hearing at the tribunal (112 words)

If a disability discrimination claim is successful, the tribunal has the power to order an employer do one or more of the ...
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Compensation at the tribunal (302 words)

Compensation for disability discrimination can include any financial losses that the claimant has incurred as a result of the discrimination, as ...
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Chapter 3

3. PRACTICAL GUIDANCE ON PREVENTING DISABILITY DISCRIMINATION IN EMPLOYMENT (285 words)

This section of the booklet provides practical guidance for union reps on how to deal with disability discrimination in the workplace. The following ...
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Recruitment and selection of disabled workers (614 words)

The requirements of the EA 2010 start from the beginning of the recruitment process and cover job adverts, job specifications, job descriptions and ...
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Selection (167 words)

It is essential to select the best candidate for the job using clear and objective criteria. The decision needs to be made without any ...
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Working hours (335 words)

Disabled workers are entitled to reasonable adjustments to accommodate their disability. For example, a disabled worker with diabetes has to eat at ...
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Pay and benefits (229 words)

Disabled workers must receive the same pay and benefits as non-disabled workers. For example, an employer is deciding how much to pay two trainees ...
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Training, development, promotion and transfer (304 words)

Many workplaces offer training and development opportunities such ...
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Management issues and disabled workers (407 words)

Grievance and disciplinary procedures are designed to formally raise issues at work with a worker or an employer. An employer may genuinely be ...
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More information (23 words)

The public and commercial services union (PCS) have published a disability equality tool kit which is available to download at: ...
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Dismissal (996 words)

Before an employer considers dismissing a disabled worker, they must ensure that the dismissal is not discriminatory, that reasonable adjustments ...
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Redundancy (310 words)

Reps need to ensure that employers do not discriminate against a disabled person in a redundancy situation by checking that an objective approach is ...
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Retirement (280 words)

Unions are concerned that disabled workers may be unlawfully managed out of the workplace. University and college union UCU says there may be ...
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Chapter 4

4. THE PUBLIC SECTOR EQUALITY DUTY AND DISABILITY DISCRIMINATION (475 words)

In April 2011, the Public Sector Equality Duty (PSED) came into force under section 149 of the Equality Act 2010 (EA 2010). A public authority must, ...
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What is a public body? (70 words)

Public bodies covered by the PSED are listed under Schedule 19 of the EA 2010. They include government bodies, police forces, schools and NHS trusts. ...
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What does due regard mean? (1,294 words)

Due regard requires a public body to show consideration and evidence to confirm that it has considered the impact of a decision/function/policy on ...
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Chapter 5

5. HEALTH AND SAFETY OF DISABLED WORKERS (566 words)

Disabled workers have particular health and safety needs in addition to the usual protection given by health and safety law to all workers. ...
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Chapter 6

6. TRADE UNION ACTION ON DISABILITY AT WORK (457 words)

The TUC Equality Audit is an annual audit of trade unions’ equality structures and collective bargaining activities. The most recent audit was ...
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Disability leave (68 words)

Disability leave is time off from work for a reason related to someone’s disability. Employers must make reasonable adjustments for disabled ...
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Examples of disability leave (402 words)

The Equality and Human Rights Commission’s Code of Practice (which can be used as evidence in court) gives a number of examples of where ...
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Disability leave policies (318 words)

The TUC guide, Sickness absence and disability discrimination, says that the two policies that will contribute most to protecting disabled workers ...
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The Access to Work scheme (229 words)

The government-run Access to Work scheme, administered by the Department of Work and Pensions, provides a financial grant to employers so that ...
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Appendices

Facts and figures about disabled workers (826 words)

(Figures relate to March 2012 unless otherwise ...
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Further information

Further information (317 words)

Acas have many offices across the country, details of which are on their website: ...
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