2. Failure to comply with a duty to make adjustments - employers are under a duty to take reasonable steps to prevent any arrangements or any physical features of the working premises which might place a disabled employee at a substantial disadvantage compared with those who are not disabled.

Since 1 October 2004 the employer may no longer argue that it was justified in not making such adjustments.

Adjustments will include widening doorways or modifying equipment and providing supervision (amongst others).

3. Victimisation - generally discrimination against an employee for bringing proceedings under the equality legislation against his employer or giving evidence or information in such proceedings.

Points to note

Current case law provides that an employer does not need to have knowledge of the disability to discriminate.

No qualifying period is necessary in order to bring a claim based on discrimination in employment.

Discrimination is only unlawful in respect of employment at an establishment in Great Britain.

Since 01 October 2004 disability discrimination applies to all businesses. Previously businesses with fewer than 15 employees in total were exempt from disability discrimination legislation.

Direct and Indirect Discrimination

Direct Discrimination will occur if an employer treats one person less favourably than another on grounds of either sex, sexual orientation, religion or belief, marital or civil partnership status, race or for a reason relating to an individual's disability.

For example, in order for a woman to succeed in a claim for direct sex discrimination, she must be able to show that she has been treated less favourably than a man in similar conditions because she is a woman.

Indirect Sex Discrimination occurs when a provision, criterion or practice is imposed on all employees or applicants to a particular post within a business which has a disproportionate and adverse effect on one gender. For a person to succeed with a claim of indirect discrimination, he or she must show:
-- A provision, criterion or practice has been imposed; and:
-- It would be to the detriment of a considerably larger proportion of the complainant's gender compared with the proportion of people from the other gender; and
-- It is to the detriment of the complainant; and
-- It is not justifiable.

Indirect Race Discrimination occurs when:

-- A provision, criterion or practice has been imposed which applies or would apply equally to persons not of the same race or ethnic or national origins as that other; and
-- It puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons; and
-- Which puts that other at that disadvantage; and
-- Which cannot be shown to be a proportionate means of achieving a legitimate aim.

Indirect discrimination tends to have an impact on one group generally, whereas direct discrimination impacts upon an individual.

Justification

An employer must show that a provision, criterion or practice is justifiable without regard to the group of the person to whom it is applied. This will require an employer to achieve an objective balance between the discriminatory effect of that provision, criterion or practice and the reasonable needs of the business.

Points to note

The Sex Discrimination Act, Race Relations Act and Disability Discrimination Act do not apply to employees who work wholly or mainly outside Great Britain (subject to certain exceptions).

No qualifying period is necessary in order to bring a claim for either Direct or Indirect Discrimination in employment.

© Davenport Lyons 2005 All rights reserved This document reflects the law and practice as at February 2006. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances.