Equality Act in force

by Allan Tyrer

Most of the Equality Act 2010 came into force on 1st October 2010. It replaces the Disability Discrimination Act 1995 for discrimination and harassment which happens from October onwards.

It also makes various changes to disability discrimination law, for example its new 'objective justification' defence based on whether the action of the employer, service provider etc was a proportionate means of achieving a legitimate aim. (The defence does not apply to all types of claim.) As under previous law, the duty to make reasonable adjustments, including on recruitment and in a job, continues to be very important.

We are pleased there has been a change to the official Employment Code of Practice, following a representation made by BSA. In the original draft Code, the main example of a 'legitimate aim' for the objective justification defence related to speech. The draft Code said: "If communicating with people on the telephone was the main part of a job, ensuring that callers could easily understand the person doing this work would be a legitimate aim as there would be a real need for clear speech." A person may communicate dysfluently but clearly, and reasonable adjustments may be possible. In our consultation response we expressed concern that the example could be misinterpreted by employers as giving grounds for discriminating against people who stammer. The example has been taken out of the final version of the Code.

In October, BSA also responded to a consultation on guidance about the definition of disability, which includes examples on stammering. I will say more on this when the final guidance is issued.

A stammer will very often meet the legal definition of disability - but for some types of claim (direct discrimination and harassment) there may be rights under the Equality Act even if there is no disability within the legal definition, provided the employer etc perceives there to be a disability. There are uncertainties here though which will need to be resolved by tribunal cases.

Enquiries about disability

Another important change is restricting an employer's ability to ask about health and disability before making a job offer. Enquiries can be made after a conditional job offer, but the idea is that it will then be more transparent if the employer turns someone down in connection with a disability. Of course, unlike some disabilities a stammer will often be evident at the interview in any event. An unlawful enquiry shifts the burden of proof in favour of a disabled person claiming direct discrimination.

There are certain purposes for which enquiries are permissible even before a job offer, such as for making reasonable adjustments to the recruitment process and establishing whether the person will be able to carry out a function intrinsic to the job. Any questions on disability, in application forms for example, are now likely to be more targeted than before, towards the permitted purposes.

Another point is that many people who stammer find it useful to mention their stammer in the interview - and it may be helpful if one does so to remember that any reticence on the part of interviewers in how they comment on this might be caution about what enquiries they are allowed to make.

This article is only intended as a general summary and is not a substitute for appropriate professional advice in any individual case.

www.stammeringlaw.org.uk

From the Winter 2010 issue of Speaking Out, page 16