The Equality Act has a wider scope than previous legislation. As well as covering discrimination within the workplace, the Equality Act also strengthens the Public Sector Duty to eliminate discrimination in the provision of services, provides new educational duties and extends the duty of businesses not to discriminate when providing services.
The Equality Act did not change the protected characteristics that already existed; what it did is standardise the level of protection each characteristic receives.
A disability is defined as a physical or mental impairment which has a substantial and long-term effect on a person’s ability to carry out normal day-to-day activities.
Long-term is defined as meaning it will have lasted for, or is likely to last for, at least 12 months or the rest of the person's life.
Under most circumstances, if a person has had the disability in the past they will still be considered to have the protected characteristic of disability even if they no longer have the impairment.
Physical or mental impairment includes sensory impairments, severe disfigurement, cancer, HIV infection and multiple sclerosis (from the point of diagnosis), and 'hidden' conditions such as mental illness, epilepsy and diabetes.
With the exception of sight impairment corrected by glasses or contact lenses, the impairment is looked at before treatment. Conditions arising from substance abuse and those such as pyromania or kleptomania are not included.
Examples of reasonable adjustments include: physical changes to the building or workstations; adaptations to equipment; arrangements such as working from home and travelling outside busy periods, or a support worker to help with elements of the role the person is not able to fulfil as a result of their disability.
The financial resources of the employer are taken into account when considering the fairness of an adjustment – the courts have accepted that even for large organisations budgets are not limitless – and the length of service is also considered. Under certain circumstances, some government funding through the Access to Work fund (which is administered by the DWP) is available to cover the cost of some of the above-mentioned adjustments.
It may not be necessary to make adjustments for a temporary worker on a two-week assignment, although this will have to be decided on a case-by-case basis. The purpose of reasonable adjustments is to enable people to take a full part in the world of work, not to compensate them for not being able to do so. In addition, there is no need to provide more favourable terms for disabled people leaving employment.
Including a question about how many days a person has taken off sick on your application form or in interview is illegal under the Equality Act. However, there are certain times when you can ask health-related questions:
- to establish whether the applicant can take part in an assessment to
- to determine whether any reasonable adjustments need to be made to enable a disabled person to participate in an assessment during the recruitment process (you cannot ask whether reasonable adjustments need to be made to enable the candidate to do the job itself until an offer has been made)
- to determine whether a candidate would be able to undertake a function that is intrinsic to the job, e.g. lifting
- to monitor diversity among job applicants (this should be done on a separate, anonymous form)
- if there is an occupational requirement for the person to be disabled
- to promote positive action
- it is also permissible to ask health-related questions for national security vetting.
Once a job offer has been made, the prospective employer is allowed to ask health-related questions and they are also able to ask questions to determine whether any reasonable adjustments need to be made so the candidate can do the job. The employer must still be careful not to discriminate once these questions have been answered.