Legal Protection from Discrimination
Legal Protection from Discrimination
The Equality Act 2010 (“the Act”) gives everyone the right to be protected from discrimination because they have or are perceived to have any 'protected characteristics'.
Employers have a 'duty of care' to their employees. This means taking all reasonable steps to keep staff safe from mental and physical harm.
However, employees also have a 'duty of care' to look after their own health, safety and wellbeing.
Outlined below are a few key terms that are worth getting familiar with.
What is a disability?
Disability is defined in different ways for different purposes. The Equality Act has a particular definition - “A person has a disability if they have a “physical or mental impairment that has a substantial, long term adverse effect on their ability to carry out normal day-to-day activities”. (Long-term is taken to mean lasting at least 12 months.) So, as well as physical conditions such as sight and hearing impairments, this includes mental health problems such as anxiety, depression, schizophrenia, eating disorders and bipolar affective disorders. A disability doesn’t have to be a named condition or a diagnosis.
If someone is disabled, then employers must consider and make “reasonable adjustments” (link) if they know (or it’s reasonable for them to know) that an applicant or employee is disabled. However, even if a person does not meet the legal definition of disability, if they are experiencing mental health problems, it is good practice and makes sound business sense to ensure they are supported.
The Act in practice
Protection against discrimination in the workplace means it would be unlawful to treat a disabled person less favourably (than someone who is not disabled) when they apply for a job, or during their employment. In practice, this might mean simple and inexpensive adjustments such as changing the pattern of breaks, or offering flexible working hours or reduced work targets for someone who is experiencing mental health problems.
The Act also makes it unlawful to use questions or answers about health or disability to discriminate against someone in recruitment. Questions can be asked in limited circumstances, but the use of blanket questionnaires would not be allowed before a job offer is made. (link)Unlike for other protected characteristics, the Act allows a disabled person to be treated more favourably. This means, for example, that a disabled applicant could be offered an interview if they meet all the essential criteria, but don’t meet the desirable criteria for a job, even where others do.
A person has a disability if he or she has a physical or mental impairment that has a substantial adverse effect on their ability to carry out normal day to day activities. This usually means the physical or mental health problem lasts (or lasted) more than a year. There does not need to be a diagnosed condition. NB It is about how normal day to day activities are affected. These may be different from work activities.
An applicant or employee is not obliged to disclose if they have a mental health problem or disability. However, if offered a job, they should answer health questions honestly. Any answers provided should not be used to discriminate. Disclosure of problems is one way of ensuring that reasonable adjustments can be considered and made at an early stage, with the involvement of the employee.
Discrimination is the treatment of individuals or groups in a way that results in disadvantage. The Equality Act protects people against discrimination, harassment or victimisation because of their protected characteristics including disability.
Discrimination can be:
Direct - treating someone with a protected characteristic less favourably than others
Indirect - putting rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at an unfair disadvantage.
Failing to make reasonable adjustments for a disabled person may also be unlawful discrimination.
Equality is about ensuring different people's needs are taken into account so they are not discriminated against, and are treated fairly and equitably. This should result in people being able to get involved and to achieve on a fair basis.
Prejudice can be conscious or unconscious. It is having beliefs or attitudes about people or groups that is based on lack of information, misinformation or stereotypes eg. believing that all members of a particular group will hold the same views or behave in the same way or thinking that people with mental health problems will take more time off work. If someone takes actions based on their own prejudice (bias), this can result in discrimination which may be unlawful.
Protected characteristics are the characteristics that people are protected from discrimination in the Equality Act. They are: age, disability, sex, gender reassignment, race, religion or belief, sexual orientation, marriage and civil partnership, pregnancy and maternity. Mental health falls under the category of disability.
'Reasonable adjustments' are reasonable steps to remove disadvantage fro a mentally or physically disabled person. This could include flexible working, adjustments to physical features of the workplace e.g. providing a quiet space or providing auxiliary aids such as a mentor or job coach. 'Reasonable' means steps should be proportionate so what is reasonable for one employer may not be reasonable for a different employer because of scale or resources. Costs of making adjustments must not be passed on to the employee.
Stigma is when people are categorised or labelled as being different in some way, perhaps because of lack of knowledge or prejudice e.g. because of mental health problems, being thought of as 'undesirable' in some way, and being treated more negatively because of this. Calling people names or avoiding them at work is stigmatising. The right thing to do is to make sure they are okay.
Someone who has an episode of depression will not have a disability, but if they have ongoing depression over 12 months, or if they have several episode,s with gaps between, over more than 12 months, then this is likely to be a disability as long as the effects are substantial and adverse in relation to normal day to day activities. It does not have to be a diagnosed condition. For example, stress where there are “substantial adverse, long-term effects could be a disability. Notice that the law talks about effects on the ability to do “normal day to day things” – not on the effects of work-related activities. This might include things they don’t need to do at work – like putting on a kettle or making decisions about money.
Types of discrimination include direct discrimination, indirect discrimination, discrimination arising from disability, and failure to make a reasonable adjustment for the disabled person. Discrimination can also occur when the person doesn’t have a disability, but is perceived to be disabled, and the protection extends to not discriminating against someone because they are associated with someone who is disabled, for example, because they are a carer. The Act also prohibits harassment and victimisation because of disability. (further link to descriptions of the different types of discrimination).
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