WS7 - Disability Discrimination Model Answer

8/11/2019 WS7 - Disability Discrimination Model Answer

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Disability Discrimination Model Answer

ELIGIBILITY/ TIME LIMITS FORALL DISCRIMINATION CLAIMS

Claim must be brought within 3 months of act of discrimination

UNLAWFUL ACT FOR ALLDISCRIMINATION CLAIMS

Discrimination in job advert, recruitment, promotion, dismissal,harassment, post-employment matters, subjecting a person to detriment

PROTECTEDCHARACTERISTIC DISABILITY

Does it satisfy s.6 EA 2010 definition?o Physical/mental impairment

Given its natural meaning straightforwardo Long term

Sch 1 Para 2 EA 2010 Lasted at least 12 months or likely to last for atleast 12 months

o Substantial adverse effect More than minor or trivial effect e.g. causing pain, fatigue, substantial

social embarrassment or a loss of energy and motivation (Appendix 1page 287 - Employment Statutory Code of Practice)

A progressive condition is taken to have a substantial adverse effect if itis likely to be substantial in the future, even if it is not substantial now(Sch 1 Para 8 EA 2010)

o Normal day-to-day activities See ODI guidance Appendix 1 page 47 (attached to this model answer)

Two common exceptions:o Cancer, HIV infection and multiple sclerosis each a disability from the point of

diagnosis with no need to show that it has a substantial adverse effect on theclaimants ability to carry out normal day to day activities - no need to apply thedefinition (Sch 1 Para 6 EA 2010)

o Facial disfigurement Once it has been established that there is an impairmentand that impairment is long term, a claimant with a facial disfigurement will bedeemed disabled. There will be no need to show that the impairment has asubstantial adverse effect on the claimants ability to carry out day to dayactivities as this is already deemed to be the case under Sch 1 Para 3 EA 2010

FAILURE TOMAKEREASONABLEADJUSTMENTS(s.21 EA 2010)

s.20 imposes the duty to make reasonable adjustments on the employer if there is a PCP,physical feature or lack of auxiliary aid that puts claimant at a substantial disadvantage incomparison to non-disabled people

o Identify the PCP, physical feature or lack of auxiliary aido Identify the comparator person without the disability who could adhere to the

PCP (Archibold)o Was he at a substantial disadvantage in comparison to the comparator? E.g. Yes

as he could not get work the hours of the new regime and was consequentlydismissed

So yes, the respondent was indeed under a duty to make reasonable adjustments. Didthe respondent make such adjustments?

o Identify possible adjustments change of hours, install a lift etc.o Objective test Smith v Churchillo Conclude whether such adjustments would objectively be reasonable

Defence of not having actual knowledge of the disability will rarely applyDISCRIMINATIONARISING FROM

Has the employer treated the claimant unfavourably because of something arising inconsequence of his disability? (Note: no comparator required as the treatment must


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DISABILITY (s.15EA 2010)

simply be unfavourable as opposed to less favourable) o Apply e.g. the employer knew ab out the claimants disability but treated him

unfavourably as he did not allow him to change his hours and ultimatelydismissed him

Defence under s.15(1)(b) EA 2010 was the treatment a proportionate means of

achieving a legitimate aim?o Apply e.g. the employers aim was to keep clients happy by having someone

available during those hours. Dismissing the claimant however is not proportionate as he could have assigned him to different clients or changed hishours

o Further, Code of Practice on Employment Paras 5.20 and 5.21 make it clear thatit will be unlikely that the respondent will be able to objectively justify theunfavourable treatment if the there were reasonable adjustments that couldhave been made and they failed to make those adjustments

o (If employer fails to make reasonable adjustments, it is very unlikely that adiscrimination arising from disability claim could be defended)

o ConcludeDIRECT DISCRIMINATION(s.13 EA 2010)

Rarely applicable in disability discrimination claims; see direct discriminationmodel answer

INDIRECTDISCRIMINATION(s.19 EA 2010)

Has the respondent applied a PCP that applies to all?o Apply e.g. The new hours regime applies to everyone in the department

regardless of whether or not they are disabled Does that PCP put persons of one group (those who have the same specific disability as

the claimant e.g. arthritis (s.6(3)(a) EA 2010) at a particular disadvantage compared toothers (those who do not have that specific disability)?

o The pool of comparators is everyone in the particular department statisticsfrom those employees must be compared (how many people with arthritis can

comply with the PCP?/How many people without arthritis can comply with thePCP?). Are more arthritic people affected than non-arthritic? If so, by more than5%, the PCP is likely to be discriminatory

Make a judgement on whether it would be more than 5%; hereconsidering that people with childcare requirements etc. would be in theother group, it is likely that the PCP would not be discriminato ry

o If statistics from the workplace are not sufficient, national statistic can be takeninto account (London Underground)

Has the claimant suffered a disadvantage?o Apply e.g. yes as he cannot work the hours and has been dismissed

Defence Can the respondent show that the PCP is a proportionate means of achieving

a legitimate aim?o Balance the discrimination suffered with the benefit to the businesso Employer will only likely succeed if there is no less discriminatory way to achieve

the aim Apply e. g. could have consulted the others

VICARIOUSLIABILITY

The respondent will be vicariously liable for all of the above claims if the acts of thediscriminatory employee occurred in the course of employment (Jones v Tower Boot Co)unless the respondent took all reasonably practicable steps to avoid the discriminationoccurring (s.109(4))

o Apply did the respondent give training to its employees? Etc.o Conclude

REMEDIES FORDISCRIMINATION

Declaration of rights (s.124(2)(a)) Recommendation (s;124(2)(c))


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CLAIMS o The respondent allows others to continue without the PCP applying in the lightof the case. A failure to comply could increase compensation under s.124(7)

o Note: This remedy cannot reinstate the claimant; this remedy is for the benefitof other/future employees

Compensation (124(2)(b))o No limit of awards of compensationo The ET calculate:

Pecuniary loss loss of salary and future earnings Injury to feelings (Veto) Bands of compensation for this see book

most cases likely to be lower band of compensation as they will beisolated incidents

CONCLUDE ON PROSPECT OFSUCCESS OF ALL CLAIMS

Few recapping sentences to finish off disability part of the answer

OTHEREMPLOYMENTCLAIMS AND

REMEDIES

Unfair dismissal Wrongful dismissal

o See separate sheets

Do calculations to work out specific amountOVERLAPPINGCLAIMS

WD damages/PILON will be deducted from discrimination award UD basic award will be deducted from discrimination award

OPTIONSAVAILABLE ANDPRACTICALSTEPS TOPROGRESSCLAIM

Do nothing Weigh up the different claims and assess whether bringing a claim is worth it

o Advantages the remedies aboveo Disadvantages No guarantee of success, no getting job back, the cost, time

Good next step is to raise formal questions with the employer; this willlet the claimant know the strength of his case and can reassess fromthere

Try and negotiate; let someone very senior in the company know

Documents

WS7 - Disability Discrimination Model Answer