TODAY is Day four of Mental Health Awareness Week in the U.K. and for which the theme is anxiety.

Indirect discrimination and the first requirement on an employer to make reasonable adjustments are based on the employer applying PCPs – provision, criterion or practice – and their effect(s).

However, before we look at PCPs, let us remind ourselves of what makes a person disabled under s.6 of the Equality Act 2010: A person has a disability if— (a) they have a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

So, we have (1) an impairment that has (2) a substantial and long-term adverse effect on (3) the applicant’s/employee’s ability to carry out normal day-to-day activities.

For our purposes, our employee friend suffers from anxiety, which is their impairment. I pause here for a moment.

Normally, the impairment would be enough for a person to be medically disabled. However, (2) and (3) must be fulfilled for there to be a statutory disability under s.6. In other words, the medical and statutory disabilities do not necessarily marry!

So, what would be deemed, ‘substantial and long-term?’ Substantial means more than minor or trivial and the effect of an impairment is long-term if—(a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.

Meaning of ‘normal day-to-day activities’

“In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities.

Normal day-to-day activities can include general work-related activities, and study and education- related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern.”

See the blog, ‘Don’t forget your normal day to day activities.‘

Disability Discrimination under the Equality Act 2010

Therefore, generally speaking, the concept of disability under the 2010 Act is based primarily on cause and effect (and the extent/degree of that effect).

So, we could say our friend is disabled because they suffer from anxiety, which, in their case, has lasted for at least 12 months and has a substantial effect on their carrying out the shopping, reading and writing etc.

Indirect discrimination – s.19 Equality Act 2010

(1) An employer discriminates against an employee if it applies to the employee a PCP that is discriminatory in relation to the employee’s disability. A PCP is discriminatory in relation to the employee’s disability if—(a) the employer applies, or would apply, it to non-disabled people, (b) it puts, or would put, disabled employees at a particular disadvantage when compared with those who are not disabled, (c) it puts, or would put, the disabled employee at that disadvantage, and (d) the employer cannot show the PCP to be a proportionate means of achieving a legitimate aim.

Therefore, what appears to be a harmless PCP on the face it, when applied equally to all may, nevertheless, put a disabled employee at a particular disadvantage when implemented.

In other words, by the employer treating staff the same by applying the same PCP to all staff, it inadvertently puts disabled staff at a particular disadvantage.

And, unless it can show that applying the PCP is a proportionate means of achieving a legitimate aim, it would have acted unlawfully.

So, unlike with direct discrimination where the employer treats the employee less favourably than a non-disabled person because of disability, indirect discrimination does not deliberately target the disabled employee, the unlawful discriminatory act arises in consequence of the application of the PCPs.

Duty to make adjustments – s.20 (3) Equality Act 2010

Where a PCP of the employer puts a disabled person at a substantial disadvantage in relation to deciding to whom to offer employment or someone already employed by the employer in comparison with persons who are not disabled, the employer is to take such steps as it is reasonable to have to take to avoid the disadvantage.

It should be noted that the employer is only to take such steps, “as it is reasonable to have to take to avoid the disadvantage.”

Put simply, therefore, if what might be demanded by an applicant/employee is found to be unreasonable then the employer would not have failed in its duty to make reasonable adjustments in the circumstances.

FINALLY, unlike with, for example, compensation for unfair dismissal, compensation for unlawfully discriminating against an applicant/employee is uncapped. Tomorrow’s fifth and final blog for Mental Health Awareness Week 2023 is titled, ‘remedy.’

Ryan Clement, LLM, BA, BSc, Barrister

https://www.youtube.com/@RyanClement1

Copyright © Ryan Clement 2023