The Equality Act has brought together all discrimination legislation to create nine 'protected characteristics' including 'disability'. It has replaced the Disability Discrimination Act 1995 (DDA), but in practice there has been little change. The Equality Act makes direct discrimination, victimisation and harrassment of individuals with disabilities illegal, and ensures those with disabilities have fair and reasonable access to employment, public and private facilities, amenities and transport. Direct discrimination is less favourable treatment simply because of a protected characteristic. It also makes indirect discrimination illegal where it cannot be justified. Indirect discrimination arises where a 'provision, criterion or practice' is applied which results in less favourable treatment, for example steps into an office will make it difficult for someone in a wheelchair to gain access.

The Equality Act has introduced a new section, 'discrimination arising out of disability' where someone treats a person with a disability unfavourably because of something arising in consequence of a disability. The specific wording is key here; all other discrimination legislation compares treatment between a person with a protected characteristic and others, and outlaws 'less favourable treatment'. Problems arise for example with excess sickness absence where it is difficult to identify an appropriate comparator. The legislation therefore uses the term 'unfavourable treatment' where there is no requirement for a comparator. Discrimination arising out of disability is allowed if it is a 'proportionate means of achieving a legitimate aim'.

The meaning of 'disability' remains the same as the DDA but the list of eight criteria has been removed.

Enquiries about health before a job offer should not be made. Simply asking is not illegal, but if the job is not then offered the employer may have contravened disability legislation. Appropriate questions can be asked if the health issue is intrinsic to the job (for example asking about epilepsy or insulin dependant diabetes for a job as a bus driver). Questions can be asked to ensure that adjustments can be made to the application process (for example asking if applicants need documents in braille, or access arrangements for interview). The job offer can still be made 'subject to medical assessment' where a health assessment is needed to ensure the person is able to undertake intrinsic aspects of the job (for example ensuring a police applicant will not suffer a heart problem from the stress of making an arrest).

The aim is to ensure those with disabilities can then compete on a 'level playing field' with everyone else for jobs, and continue to work effectively.  This is not just good for those with disabilities, it is also good for business.  Many individuals with disabilities have enormous potential, and can bring considerable skills to your business.

Where can I find out more?

The Equality and Human Rights Commission has a useful website that explains some of the issues of the Equality Act.