This month has seen most of the provisions of the new Equality Act come into force. The Act consolidates existing discrimination law into one statute and contains new provisions, particularly in the area of disability discrimination, which will have a significant impact on employers’ practices, policies and procedures.

The definition of disability under the Act has been slightly amended. Anyone claiming disability discrimination has to show they have an impairment (mental or physical) that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Previously, they had to show that the impairment affected one or more of a specified list of capacities including mobility, manual dexterity, physical co-ordination, speech, etc. This list has been removed. It will now be up to tribunals to make a common-sense decision as to whether or not a particular impairment has such an effect.

The definition of direct discrimination has been widened specifically to encompass discrimination by association — which previously had been introduced through case law — and now also if someone is perceived as being disabled, even if they actually are not.

So, if a job applicant is refused a position because they have a disabled child, this would be direct discrimination by association. Also, if an employer mistakenly thinks a job applicant or employee is disabled, and makes a decision in relation to that person to their disadvantage, that too would be direct perceptive discrimination.

The Act also introduces two new forms of protection for those who are disabled: the law on indirect discrimination has been extended to disability and a new concept — ‘discrimination arising from disability’ — has been introduced.

The latter was included to reverse a controversial House of Lords decision in 2008, which made it harder for disabled employees to win a case of disability discrimination.

Employers can put forward a defence of justification to both these new forms of disability discrimination — but it is not an easy or straightforward defence to make out and the threshold is pretty high.

There is a significant degree of overlap between these two forms of discrimination and it is likely to lead to aggrieved applicants and staff alleging both types of claim to improve their overall chances of succeeding.

To try and eradicate discrimination at the recruitment stage, it is now unlawful for an employer to ask about the health of a job applicant before offering work to, or short-listing, a job applicant.

This covers both written and oral questions, so those conducting job interviews will have to be careful to avoid the subject of health or fitness.

What’s more, this is not limited to questions directed at the job applicant. A request for a reference sent before a job offer is made must also avoid asking such questions.

The typical question of ‘how many days did you have off sick last year?’ is now not permissible. Asking questions is not of itself disability discrimination, but if an employer acts on a candidate’s answer, it may be.

The Act does allow certain questions to be asked before the job offer or short-listing stage — for example, whether someone needs any reasonable adjustments to enable them to actually take part in the recruitment process.

If an employer asks an unlawful question about health during the recruitment process, and the applicant does not get the job, in any subsequent disability discrimination claim the burden of proof will be on the employer to show there was no discrimination by providing another reason why the applicant was not successful.

But employers can ask health-related questions after a job offer has been made. For example, the prospective employee can be asked to undergo a medical after the employer has made a conditional job offer.

The Act also significantly widens tribunals’ powers to make recommendations where disability discrimination has been established.

Tribunals can now make wide-ranging recommendations which apply to the employer’s whole workforce, such as training staff or publishing selection/promotion criteria.

Previously, tribunals could only make recommendations that would directly benefit the employee.

If he or she no longer worked for the employer — which in discrimination cases is nearly always the case —the scope for a tribunal to make a recommendation was very limited because it was unlikely to have any practical effect.

o Contact: Craig Gordon, 01235 555260.

Web: www.hrbullets.co.uk