Anticipatory duty
For service providers, the duty to make reasonable adjustments is 'anticipatory', within reason. This means they have to anticipate, think about and try to predict what adjustments could be needed by customers with different types of disability, support and access requirements. The service provider must think about all potential disabled customers and not just those who are known to them.
Direct discrimination
Duty to make reasonable adjustments
Where a disabled person is at a substantial disadvantage compared with people who are not disabled, there is a duty to take reasonable steps to remove that disadvantage by:
- changing provisions, criteria or practices
- changing or removing a physical feature or providing a reasonable alternative way to avoid that feature
- providing auxiliary aids
An adjustment should, as far as possible, remove or reduce any disadvantage faced by a disabled worker or service user.
Whether an adjustment is reasonable depends on all the circumstances including:
- how effective the change will be in avoiding the disadvantage you would otherwise experience because of your disability
- how practical it is for the organisation to make it
- the cost
- the organisation’s resources and size
- whether financial support is available to help the organisation make it
The test of what is reasonable is ultimately objective and not simply a matter of what you may personally think is reasonable.
See more videos like this in the equality law: discrimination explained playlist on YouTube (opens in new window).
Harassment
Indirect discrimination
Objective justification
Objective justification gives a defence for applying a policy, rule or practice that would otherwise be unlawful indirect discrimination.
It also gives a defence for using an rule or practice based on someone's age, that would otherwise be direct discrimination.
To rely on the objective justification defence, the employer, service provider or other organisation must show that its policy or age-based rule was for a good reason – that is 'a proportionate means of achieving a legitimate aim'.
To prove objective justification:
- the aim must be a real, objective consideration, and not in itself discriminatory (for example, ensuring the health and safety of others would be a legitimate aim)
- if the aim is simply to reduce costs because it is cheaper to discriminate, this will not be legitimate
- working out whether the means is ‘proportionate’ is a balancing exercise: does the importance of the aim outweigh any discriminatory effects of the unfavourable treatment?
- there must be no alternative measures available that would meet the aim without too much difficulty and would avoid such a discriminatory effect: if proportionate alternative steps could have been taken, there is unlikely to be a good reason for the policy or age-based rule
Occupational requirement
Where having a protected characteristic is an occupational requirement, certain jobs can be reserved for people with that protected characteristic (for example, women support workers in women's refuges; ministers of religion).
The organisation must be able to show that there is a good reason for the occupational requirement. This is known as objective justification (see above).
Positive action
In the workplace, positive action means the steps that an employer can take to encourage people from groups sharing a protected characteristic who:
- have different needs
- have a past track record of disadvantage
- have a record of low participation
For example, to help people sharing a particular protected characteristic to apply for a job or to be developed for promotion. These steps might include providing work experience, mentoring or training.
When an organisation is providing services, these are steps it can take to help or encourage people from groups who share a protected characteristic to participate, or overcome a particular disadvantage that they have.
Positive action is lawful if there is evidence that it is needed. For example, the level of participation by people from that group is lower than could reasonably be expected.
In both cases, the organisation must be able to show that there is a good reason for the positive action. This is known as objective justification (see above).
Workplace
The Equality Act protects against discrimination in the workplace when you are:
- applying for a job
- offered a job on certain terms and conditions
- looking for opportunities for training and promotion
- trying to access work-related benefits
- going through disciplinary or grievance procedures
- dealing with your working environment
- being sacked or made redundant
- looking for, or being given, job references
Victimisation
Last updated: 08 Jun 2018