Disability Discrimination Disability Discrimination Act 1995 Council Directive 2000/78 EC Amending...
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Transcript of Disability Discrimination Disability Discrimination Act 1995 Council Directive 2000/78 EC Amending...
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Disability Discrimination
Disability Discrimination Act 1995Council Directive 2000/78 ECAmending Regulations 2004Disability Discrimination Act 2005
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Disability Direct Discrimination Disability Related Discrimination Failure to make a reasonable adjustment Associative Discrimination Indirect Disability Discrimination
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Disability: SCA Packaging v Boyle
A condition which has occurred in the past and may reoccur
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The Northern Ireland Tribunal
The provision: it is to be treated as continuing to have that
effect if that effect is likely to recur Industrial Tribunal: the tribunal held that the
vocal nodes were "likely" to recur if the claimant did not follow her voice management regime
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Northern Ireland Court of Appeal
The test is not “more probable than not”
"could well happen" rather than the higher threshold of "more probable than not"
The House of Lords agreed
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House of Lords - obiter
Where someone is following a course of treatment on medical advice, in the absence of any indication to the contrary, an employer can assume that, without the treatment, the impairment is "likely" to recur. If the impairment had a substantial effect on the patient's day-to-day life before it was treated, the employer can also assume - again in the absence of any contra-indication - that, if it does recur, its effect will be substantial.
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Direct Discrimination: Watts 2006
Direct Discrimination: Watts 2006
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Discrimination Related to Disability
The end of disability related discrimination as we knew it
Lewisham v Malcolm
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Facts
– Mental impairment
– Council tenant proposed purchase of his flat
– Sub-let flat (contrary to his tenancy agreement) and had gone to live elsewhere
– Council declined to sell & served notice to evict
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Malcolm’s Argument
I suffer from a mental impairment (schizophrenia) I only sub-let the flat because I was suffering an
episode of mental impairment which was note being controlled at the time
I am being evicted because I agreed to sub-let the flat
Therefore the eviction is related to my disability and unlawful
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Lewisham’s argument
You are not disabled Even if you are disabled, we were unaware of that
and so the decision could not be related to your disability
Further, anyone who sub-let their flat would be evicted
Therefore, you are not being treated less favourably than someone who is not disabled for a reason related to your disability
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Trial Judge
Malcolm did not sub-let the flat because of his condition
Malcolm’s condition did not amount to a disability under the Act
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Court of Appeal
The trial judge was wrong on both counts– Disability– Causation
The Court of Appeal also found– Knowledge of the disability was unnecessary– The comparator was someone who had not sub-let the flat
Therefore the council did discriminate against Malcolm
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House of Lords
The court of appeal was wrong to overturn the trial judge’s findings on causation– This meant the case failed on the facts (3:2)
Further, 4:1 the Lords decided that the correct comparator was another person who had sub-let their flat
Baroness Hale dissented
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Failure to make Reasonable Adjustment
Practice Criterion Provision
Physical
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Reasonable Adjustment
Knowledge– The employer must be aware
The adjustment must make some difference
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What next: indirect discrimination
Articles 1 and 2 of the directive prohibit– any discrimination whatsoever on the grounds of
disability– Whether direct or indirect
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Association: Coleman v Attridge
– Sharon Coleman was employed as a legal secretary by Attridge Law, a firm of solicitors.
– She had a disabled son, who was born in 2002. He suffered from a disability
– He required specialised and particular care. – Ms Coleman was his primary carer.
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Associative Indirect Discrimination
Reasonable Accommodation– National law Exclusion
If national law does not impose an obligation to make a reasonable adjustment/reasonable accommodation then the provisions relating to indirect discrimination may apply