Equality Act Discrimination arising from disability This occurs when a disabled person is treated unfavourably not because of the disability itself but because of something connected with their disability. It is not unlawful if the treatment can be justified (see above) or if the service provider can show it did not know, or could not reasonably be expected to know, that the person was disabled. It replaces the previous disabilityrelated provisions which were effectively discredited in the Malcolm v Lewisham case.
It is different to indirect discrimination in that: ● there is no need to show that the person has been treated less favourably because of a provision, criterion or practice which is applied to other people ● there is no need for a comparator; that is, there is no need to compare the person who has been treated less favourably with somebody who is not disabled or someone with a different disability
There have also been some changes to the requirement to make reasonable adjustments for disabled people: Reasonable adjustments The duty to make reasonable adjustments has been unified for consistency although there are still some differences in the way it operates in different parts of the Act. For example, the duty is anticipatory for service providers and private clubs but not for employers. There is now one threshold for the duty, which is where disabled people experience a ‘substantial disadvantage’, instead of the different thresholds under the DDA, so there is no longer any reference to ‘impossible or unreasonably difficult’.
Act makes it clear that providing information in accessible formats is almost always a reasonable adjustment, and that this relates to policies as well as auxiliary aids. It also makes it clearer that the costs of reasonable adjustments cannot be passed onto the disabled person. While service providers could previously legally justify failing to provide a reasonable adjustment in certain circumstances, under the new legislation the only question is whether the adjustment is a reasonable one to make.
The requirements of the duty reflect the DDA duties but in a more consistent way. The Equality Harassment Disability harassment occurs when somebody is subjected to unwanted behaviour relating to disability which has the intention or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. It includes harassment because of a person’s association
with someone who has a protected characteristic, or because they are wrongly perceived to have a protected characteristic. The DDA provided for harassment at work but the new Act also protects disabled people accessing goods and services.
Victimisation Victimisation occurs when somebody is treated badly for making a complaint under the Act, or helping somebody else to do so, or because they are thought to have done or be doing these things. Unlike previously, the victim does not
have to show that they have been treated less favourably than someone who has not made or supported a complaint, just that they have been treated badly.
Further information Government Equalities Office: 8 www.equalities.gov.uk/equality_bill.aspx Equality and Human Rights Commission: 8 http://tinyurl.com/ehrc-ea-non-statutory-guidance 6
Access by Design Issue 124