www macroberts com Roundtable Discussion 20 November 2013

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www. macroberts. com Roundtable Discussion 20 November 2013 Karen Mc. Gill

Equality Act 2010 • Protects job applicants Mac. Roberts LLP • Protects candidates for promotion • Access to benefits, facilities or services • Duty to make reasonable adjustments • Detriment and dismissal All on basis of protected characteristics

Disability? • Section 6 of the Equality Act 2010 Mac. Roberts LLP • (1)a person (P) has a disability if— • (a) P has a physical or mental impairment, and • (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day -to-day activities.

Schedule 1 Part 1 Long-term effects 2 (1)the effect of an impairment is long-term if— Mac. Roberts LLP (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. (2) 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.

Schedule 1 Part 1 5(1) an impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— Mac. Roberts LLP (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect. (2)“measures” includes, in particular, medical treatment and the use of a prosthesis or other aid 6(1) Cancer, HIV infection and multiple sclerosis are each a disability.

Equality Act Guidance Mac. Roberts LLP • 60 pages • A 5: A disability can arise from the following type of impairment: • developmental, such as autistic spectrum disorders (ASD), dyslexia and dyspraxia

Common Triggers • Recruitment Mac. Roberts LLP • Interview • Appraisal • Performance Management • Assessments

Mac. Roberts LLP Cases • Paterson v Comr of Police of the Metropolis [2007] IRLR 763, [2007] ICR 1522, EAT: Mr Paterson was a police officer who suffered from Dyslexia such that an expert recommended he be allowed additional time to undertake the examinations which he had to pass to achieve promotion. • The EAT, reversing the decision of the employment tribunal, found him to be a disabled person, since the activity of carrying out assessments or doing examinations were to be classed as 'normal day-to-day activities', as were reading and comprehension.

Cases Mac. Roberts LLP • In Noor v Foreign and Commonwealth Office UKEAT/0470/10, [2011] ICR 695, [2011] Eq. LR 448, EAT, an applicant for a job had dyslexia and dyspraxia and had been placed at a substantial disadvantage in comparison to non-disabled applicants by being required to answer questions on a competency which, because of error, had not been included in the advertisement for the job. • The ET struck out the claim as having no reasonable prospect of success in light of evidence from the respondent that even if the claimant had received full marks for the questions relating to the 'missing' competency and all questions asked in the interview after that competency had been interrogated, he still would only have ranked third. • The EAT held the ET had erred in holding that for the adjustment to be reasonable it must be shown that taking the step would prevent the disadvantage (though it would be relevant to the issue of remedy).

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