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Disability

What the law says

The Equality Act 2010 came into force on 1 October 2010, replacing the Disability Discrimination Act 1995., which makes it unlawful to discriminate against, harass or victimise a person because they are disabled. It protects disabled people in the following areas:

  • Employment
  • Higher Education
  • Provision of goods, facilities and services
  • Provision of recreational or training facilities Premises
  • Premises

When is a person disabled?

A person has a disability if he or she has a physical or mental impairment, which has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities.

If measures are being taken to treat or correct an impairment, such as medication or the use of a prosthesis or other aid, the person is still considered as disabled for the purposes of the Act.

What about people who have recovered from a disability?

People who have had a disability within the definition are protected from discrimination even if they have since recovered.

What does ‘impairment’ cover?

It covers physical or mental impairments; this includes sensory impairments, such as those affecting sight or hearing.

What types of mental impairment are covered?

The term ‘mental impairment’ is intended to cover a wide range of impairments relating to mental functioning, including what are often known as learning disabilities.

What is a 'sunstantial' adverse effect?

A substantial adverse effect is something which is more than a minor or trivial effect. The requirement that an effect must be substantial reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people.

What is a ‘long-term’ effect?

A long-term effect of an impairment is one:

  • which has lasted at least 12 months, or
  • where the total period for which it lasts is likely to be at least 12 months, or
  • which is likely to last for the rest of the life of the person affected.

What if the effects come and go over a period of time?

If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

What are ‘normal day-to-day activities’?

They are activities which are carried out by most people on a fairly regular and frequent basis. The term is not intended to include activities which are normal only for a particular person or group of people, such as playing a musical instrument, or a sport, to a professional standard or performing a skilled or specialised task at work. However, someone who is affected in such a specialised way but is also affected in normal day-to-day activities would be covered by this part of the definition.

What does the Act cover in relation to employment

It is unlawful for an employer to discriminate against or victimise a disabled person:

  • in the arrangements made for determining who should be offered employment

  • in the terms on which the person is offered employment, or

  • by refusing to offer, or deliberately not offering, the person employment.

  • in the terms of employment which it affords him or her

  • in the opportunities which it affords him or her for promotion, a transfer, training or receiving any other benefit, facility or service

  • by refusing to afford or deliberately not affording him or her, any such opportunity, or

  • by dismissing the person, or subjecting him or her to any other detriment.

The Act also makes it unlawful for an employer to discriminate against a disabled person after that person’s employment has come to an end

The Act is broad enough so that protection from discrimination may also extend to people who are not necessarily employees, for example, volunteers.

The Act also imposes a duty on employers to make reasonable adjustments in respect of disabled employees and applicants to ensure that a disabled person is not placed at a substantial disadvantage in comparison to a non-disabled person.

In addition to this the Act makes it unlawful for an employer to harass employees or applicants because they are disable and also makes the employer liable in the case of harassment of employees by third parties unless the employer has taken reasonable steps to prevent this third party from doing so. However, responsibility for third party harassment only applies if the employer knows that the employee has been harassed on at least two previous occasions.

What does the Act cover in relation to Higher Education?

The Act makes it unlawful for the governing body of a HEI to discriminate against a person/student in the following ways: 

  • in the arrangements it makes for deciding who is offered admission as a student

  • in the terms on which it offers to admit the person as a student

  • by not admitting the person as a student

  •  in the way it provides education for the student

  • in the way it affords the student access to a benefit, facility or service

  •  by not providing education for the student

  •  by not affording the student access to a benefit, facility or service

  • by excluding the student

  • by subjecting the student to any other detriment

Governing bodies of HEIs also have an additional duty to ensure that they do not discriminate against or victimise disabled students through either:

  • the arrangements it makes for deciding upon whom to confer a qualification

  • the terms on which it is prepared to confer a qualification on the person

  • by not conferring a qualification on the person

  • by withdrawing a qualification from the person or varying the terms on which the person holds it

The Act also makes it unlawful for HEIs to harass or victimise students or prospective students because they are disabled.

In addition to this the Act imposes a duty on HEIs to make reasonable adjustments in respect of disabled students and applicants to ensure that a disabled person is not placed at a substantial disadvantage in comparison to a non-disabled person. Competence standards are excluded from this duty.

What does the Act cover in relation to the provision of services, goods and facilities?

HEIs provide a range of services to both staff and students, such as childcare services, libraries and careers and employment services, and as such are considered to be service providers.

The Act makes it unlawful to discriminate against, harass or victimise a disabled person who is seeking access to or is accessing a service:

  • in the terms of providing the service

  • by terminating the provision of the service

  • by subjecting the service user to any other detriment

The Act also imposes a duty to make reasonable adjustments in relation to the provision of services, goods and facilities even if this favours disabled people.

What does the Act cover in relation to the provision of recreational or training facilities?

The Act provides protection against discrimination, harassment and victimisation on the grounds of disability in the provision of recreational or training facilities, such as sports services or clubs. Higher Education Institutions (HEIs) should not discriminate against or victimise a person in:

  • the arrangements it makes for deciding who is provided with the facilities

  • the terms on which it offers to provide the facilities to the person

  • not accepting the person’s application for provision of the facilities

In addition HEIs should not harass a disabled person who is seeking to access or is accessing recreational or training facilities. 

The duty to make reasonable adjustments also applies to the provision of recreational or training facilities, to ensure that disabled people are not placed at a significant disadvantage compared to non-disabled people.

What does the Act cover in relation to premises?

The Act imposes a duty to make reasonable adjustments in respect of leasehold and commonhold premises and to common parts, to ensure that disabled students are not placed at a significant disadvantage to non-disabled students in their living and studying environments.  In addition to this any landlords with whom the University has a contractual relationship must also commit to providing accessible accommodation for disabled students.

What type of discrimination does the Act refer to?

Direct discrimination - occurs when a person is treated (or would be treated) less favourably than another person because they have, or have had, a disability.

Associative discrimination - occurs when a person is treated less favourably because they are associated with a person who has, or has had, a disability.

Perceptive discrimination- occurs when a person is treated less favourably because they have been perceived, correctly or incorrectly, to have a disability.

Discrimination arising from disability - occurs when a disabled person is treated less favourably because of something arising in consequence of their disability AND this treatment cannot be shown to be a proportionate means of achieving a legitimate aim

Indirect Discrimination - occurs when a provision, criterion or practice is applied to all and it puts or would put a disabled person at a particular disadvantage when compared with a non-disabled person AND this cannot be shown as a proportionate means of achieving a legitimate aim.

Failure to make reasonable adjustments - The duty to make reasonable adjustments arises where a provision, criterion or practice applied by or on behalf of the University or any physical feature of premises occupied by the University, places a disabled person at a substantial disadvantage in comparison with a non-disabled person.

The University will take into account the following factors when considering what is reasonable:

  • the need to maintain academic and other prescribed standards
  • the cost of taking a particular step and the financial resources available
  • grants or loans likely to be available to students/staff with a disability  
  • the extent to which it is practicable to take a particular step
  • the extent to which aids or services will otherwise be provided to students/staff with a disability
  • health and safety requirements
  • the relevant interests of other people including other students/staff

The duty to make reasonable adjustments does not apply to competence standards, which the Act defines as ‘an academic, medical or other standard applied for the purpose of determining whether or not a person has a particular level of competence or ability’

Harassment-The Act defines harassment as unwanted conduct that has the purpose or effect of violating the individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

The Act also protects against third party harassment on the grounds of disbaility. The University will therefore be liable for harassment of its employees by third parties, such as external contractors, unless they have taken reasonable steps to prevent it from happening. However, this liability will only apply if the University knows that the employee has been harassed on at least two previous occasions.

Victimisation

Victimisation occurs when one person treats another less favourably than he or she treats or would treat other people in the same circumstances because the person has:

  • brought proceedings under the Act;

  • given evidence or information in connection with proceedings under the Act

  • done any other thing for the purposes of or in connection with this Act

  • made an allegation (whether or not express) that there has been a breach of the Act

Protection is not afforded where the person gives false evidence or information or makes an allegation or has given evidence or information in bad faith.

The General Duty

The new public sector Equality Duty will cover all protected characteristics set out in the Equality Act 2010, apart from marriage and civil partnership and will require public sector bodies to have due regard to the need to:

  • eliminate unlawful discrimination, harassment and victimisation

  • advance equality of opportunity between different groups; and

  • foster good relations between different groups  

The Specific Duties

Current proposals for the specific equality duties for public sector bodies in England are:

  • public bodies will need to develop and publish equality objectives based on relevant evidence, and publicly set out how they intend to achieve them (to be renewed at least every 4 years)

  • public bodies will be required to publish a range of equality data relating to their workforces and the services they provide on an annual basis

  • public bodies with 150 or more employees will need to publish their gender pay gap figures and their employment rates for black and minority ethnic staff and disabled staff on an annual basis

  • public bodies will be required to be open about how they have engaged with people as part of their work towards fulfilling the aims of the Equality Duty

  • public bodies will need to demonstrate how the impact on equality has been assessed in the design of key policy and service delivery initiatives

  • public bodies will need to proactively consider the equality requirements of every contract they tender

The revised public sector Equality Duty is currently being consulted on by the Government Equalities Office and will not come into force until April 2011, therefore the current public sector duties set out in the Disability Discrimination Act will still be referred to until the revised duty comes into force. 

 

Aston University is positive about disabled people

Aston University is committed to promoting equality and valuing diversity in its work with staff and students. The University encourages applications from disabled people and supports existing employees who become disabled. It has undertaken to become a Positive about Disabled People User and in so doing has made a number of commitments:

1 Recruitment

To interview all disabled applicants who meet the minimum criteria for a job vacancy and to consider them on their abilities

2 Consulting employees with a disability

To discuss with disabled employees on a regular basis what can be done to make sure they can develop and use their abilities.

3 Retaining people who become disabled

To make every effort when employees become disabled to make sure they stay in employment

4 Developing awareness

To take action to ensure that all employees develop an appropriate level of disability awareness needed to make these commitments work

5 Reviewing progress and keeping people informed

Each year to review the five commitments and what has been achieved, to plan ways to improve and to keep Jobcentre plus informed.

What other support will the University offer to disabled employees?

Reasonable Adjustments 

Whether you are a new or existing member of staff or student the University will provide reasonable adjustments to enable you to undertake your work as effectively as possible. Depending on the circumstances this could involve one or more of the following:

  • Offering confidential advice and guidance through Human Resources or the Equality and Diversity Unit
  • Undertaking an assessment for reasonable adjustments with appropriate support from HR, Occupational Health or other specialists
  • Providing information and guidance about Access to Work and supporting employees with the process
  • Providing modified office equipment, software packages or other sorts of technology
  • Making appropriate parking arrangements
  • being flexible about hours of work or allowing the employee to be away from the office for rehabilitation, assessment or treatment
  • providing additional training
  • enabling the use of a reader or interpreter
  • where appropriate considering redeployment or re-training for different roles
  • where employees have mobility or sensory impairments to make appropriate emergency evacuation arrangements

Support with reasonable ajustments may be available from Access to Work. The Equality & Diversity Unit can advise on how to apply.  Please contact Jane Tyrrell k.parsons@aston.ac.uk  

Further information on Access to Work can be found athttp://www.disabilityalliance.org/f27.htm

Policies and Guidance

For policies, guidance and further information on services for students with disabilities please see Disability and Additional Needs Unit

Annual Equality Report 2010 Update on progress with Disability Equality

Network

There is a Staff Disability Network which meets to discuss  a range of disability related issues and makes suggestions about how best to improve the environment for staff and students. For further information contact  Jane Andrews x 3363

Useful Links

The EHRC is an independent statutory body which champions equality and human rights for all and works to eliminate discrimination, reduce inequality, protect human rights and to build good relations, ensuring that everyone has a fair chance to participate in society. 

Equality Challenge Unit (ECU) works to further and support equality and diversity for staff and students in higher education across all four nations of the UK

Disability Alliance Factsheet on Access to Work  http://www.disabilityalliance.org/f27.htm

Goverment Equalities Office http://homeoffice.gov.uk/equalities/

Acas: Advisory, Conciliation and Arbitration Service                                                                                                          http://www.acas.org.uk/index.aspx?articleid=1461

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 Last updated July 2012