Equality Act 2010 and disability

In October 2010 the Equality Act came into force. It combines previous Acts regarding discrimination for various reasons like disability, race, age, sexual orientation, religious belief. The previous Disability Discrimination Act was used to base the new act on, however there are a few differences. One of the main changes is that a person does not need to fulfil a requirement to have one of a specified range of impairments and the impairment does not need to be the result of a diagnosed condition.

The Equality Act 2010 states:

(1) 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.

The Act clarifies long term effect is specified as 12 months or longer.

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 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.

An impairment is treated as substantial even if medical treatment is able to restore normal function.

5(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.

The effect on carrying out day-to-day activities may be the need for more time to carry out a task or the need to carry out tasks in a significantly different way or not being able to carry out tasks at all.

The Department for Work and Pensions has issued guidelines for the interpretation for the EA2010 stating:

B2. The time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time it might take a person who did not have the impairment to complete an activity.

In determining a question as to whether a person meets the definition of disability it is important to consider the things that a person cannot do, or can only do with difficulty, rather than focussing on those things that a person can do.

The Guidance by the Department of Work and Pensions states that for the assessment of the existence of impairment the situation should be assessed as if the treatment or medical intervention had not happened. This means considering the symptoms and effects disregarding the benefit of treatment.

B11. The Act provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. In this context, ‘likely’ should be interpreted as meaning ‘could well happen’. The practical effect of this provision is that the impairment should be treated as having the effect that it would have without the measures in question (Sch1, Para 5(1)). The Act states that the treatment or correction measures which are to be disregarded for these purposes include, in particular, medical treatment and the use of a prosthesis or other aid (Sch1, Para 5(2)).

B12. This provision applies even if the measures result in the effects being completely under control or not at all apparent. Where treatment is continuing it may be having the effect of masking or ameliorating a disability so that it does not have a substantial adverse effect. If the final outcome of such treatment cannot be determined or if it is known that removal of the medical treatment would result in either a relapse or a worsened condition, it would be reasonable to disregard the medical treatment in accordance with paragraph 5 of Schedule 1.

B13. For example, if a person with a hearing impairment wears a hearing aid the question as to whether his or her impairment has a substantial adverse effect is to be decided by reference to what the hearing level would be without the hearing aid. Similarly, in the case of someone with diabetes which is being controlled by medication or diet, or the case of a person with depression which is being treated by counselling, whether or not the effect is substantial should be decided by reference to what the effects of the condition would be if he or she were not taking that medication or following the required diet, or were not receiving counselling (the so-called ‘deduced effects’).

In summary a person with significant impairment of daily life activities likely to last for 12 months or longer falls within the remit of the Equality Act 2010. It is important to disregard any beneficial effects of treatment in reducing the impairment or the effect of that impairment. If a person has no impairment then he can do anything and adaptations in the workplace are not required.

As an employer is required to look into reasonable adjustments at the workplace to compensate for impairment of employees covered by the Act, it is important to know what adjustments would be needed to support the employee at work. This is best determined by an occupational health assessment looking closely at the individual’s situation assessing existing functional impairment, the effects of treatment and further treatment avenues which might not have been explored so far. As a result of the occupational health assessment advice on possible adjustments to compensate for existing and long term impairment can be suggested. It is then for the employer to decide whether these can be implemented without undue cost or disruption to the business.

Only an Employment Tribunal can decide whether a person is covered under that Act. However an employer who has gone through a thorough assessment process and considered which adjustments can be reasonably made is unlikely to face criticism.