Disability discrimination – Gibraltar law
Chris Brunt is a Gibraltar employment lawyer, a barrister and acting solicitor who will consider all employee discrimination cases on a “no win no fee” basis. If you are disabled and being discriminated against I would be happy to discuss your case with a free half-hour consultation.
In Gibraltar discrimination in the workplace is governed by the Equal Opportunities Act 2006. This post will deal with a broad overview of disability discrimination. I am happy to advise employers on how they can comply with the duties imposed by Gibraltar law to avoid discriminating against their employees.
As you will see in this post most discrimination claims are for indirect disability discrimination in which the employer can unwittingly and unintentionally discriminate against an employee by a workplace provision, criteria, or practice that disadvantages a disabled employee. It may be surprising what constitutes a disability and so it is crucial for your business to be protected as financial awards to employees in a successful discrimination claim in the Gibraltar Employment Tribunal are uncapped.
So, let’s get started – What is disability discrimination?
Disability discrimination in Gibraltar
How does an employment tribunal decide whether or not an employee has been unlawfully discriminated against by reason of disability? The following post will outline disability discrimination in Gibraltar with respect to legislation as set out in the Equal Opportunities Act 2006.
Firstly, let’s look at how disability is defined in Gibraltar’s Equal Opportunities Act, in section 3. (3) the Act states:
In this Act–
-“disability” –
(a) means a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities;
(b) is further defined in Part I of Schedule 1.
Part 1 of Schedule 1 states:
2.(1) The effect of an impairment is a long-term effect if–
- it has lasted at least 12 months;
- the period for which it lasts is likely to be at least 12 months; or
- it is likely to last for the rest of the life of the person affected.
2. (2) Where 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.
Normal day-to-day activities.
4. (1) An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following–
(a) mobility;
(b) manual dexterity;
(c) physical coordination;
(d) continence;
(e) ability to lift, carry or otherwise move everyday objects;
(f) speech, hearing or eyesight;
(g) memory or ability to concentrate, learn or understand; or
(h) perception of the risk of physical danger
But even if the employee’s impairment has been treated or corrected medically, they are still to be considered disabled (see section 6. (1) of the Act below).
Effect of medical treatment.
6. (1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.
6. (2) In sub-paragraph (1) “measures” includes, in particular, medical treatment and the use of a prosthesis or other aid
How then can a disabled employee be discriminated against?
Section 12 of the Equal Opportunities Act sets out the following explanation as to what constitutes disability discrimination.
Meaning of discrimination on the ground of disability.
Equal Opportunities Act, section 12.
12. (1) “A person (“A”) discriminates against another person (“B”) if on the grounds of B’s disability, A treats B less favourably than A treats or would treat other persons not having that particular disability.“
12. (2) “A person (“A”) discriminates against a disabled person (“B”) if –
- for a reason which relates to B’s disability, A treats B less favourably than A treats or would treat others to whom that reason does not or would not apply, and
- A cannot show that the treatment in question is justified by a reason which is both material to the circumstances of the particular case and substantial.“
Direct discrimination –
Less favourable treatment in section 12(1) of the Equal Opportunities Act is often (but not exclusively) found in the employer/employee relationship. Simply put, in this setting, it is where an employer treats a person with a disability less favourably than they treat another employee who does not have that disability, and they do so on the grounds of the employee being disabled. This is known as direct discrimination. For example, an employer who refuses to consider an employee for promotion, or dismisses them just because they have a disability. The employer’s bias need not only be conscious it can include subconscious bias too. Direct discrimination, if proven, cannot be justified by the employer.
How is less favourable treatment compared?
A reading of section 12(1) of the Equal Opportunities Act below sets out what is known as the comparator
12(1)……….“A treats B less favourably than A treats or would treat other persons not having that particular disability.
This means that If you are directly discriminated against because of disability, the comparator is someone who doesn’t share your disability but who has the same abilities and skills as you. The comparator can also be someone who’s not disabled or someone with a different disability.
Indirect disability discrimination
It is submitted that section 12(2)(a) of the Equal Opportunities Act makes indirect disability discrimination unlawful.
Indirect disability discrimination can occur when an employer has in place a “provision, criteria or practice” (PCP) in the workplace which applies equally to everyone in a group, but it puts a disabled person within this group at a disadvantage. You will notice however that in this instance potential indirect disability can be justified under 12(2)(b). An example of indirect discrimination would be an employee in an office suffering from mobility issues due to arthritis. The employer’s policy is that all employees may take a ten-minute break during the afternoon. The employee in our example takes much longer than the other employees to reach the canteen due to their disability and therefore is forced to have a much shorter break. They ask their employer if they may take their break at their desk instead, even though it is not usually allowed. If the employer denies their request without a good reason, this could amount to indirect discrimination.
Reasonable adjustments
However, it is not only less favourable treatment that can amount to discrimination but the failure of the employer to make reasonable adjustments to ensure as far as is reasonably practicable that the disabled person is not at a disadvantage in the workplace
The Equal Opportunities Act goes on to set out:
12. (3) A person discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.
(5) If in a case falling within subsection (2), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (2)(b) unless it would have been justified even if he had complied with that duty.
What could be a reasonable adjustment section 29 of the Equal Opportunities Act sets out?
Meaning of duty to make reasonable adjustments – disability.
29.(1) For the purposes of this Act, “duty to make reasonable adjustments” means that where–
- a provision, criterion or practice applied by or on behalf of a person set out in section 12(6) [an employer] (“A”); or
(b) any physical feature of premises occupied or controlled by A, place the disabled person concerned at a substantial disadvantage in comparison to persons who are not disabled, it is the duty of A to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.
(2) “In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to–
(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;
(b) the extent to which it is practicable for him to take the step;
(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;
(d) the extent of his financial and other resources;
(e) the availability to him of financial or other assistance with respect to taking the step;
(f) the nature of his activities and the size of his undertaking;”
An employer should therefore turn its mind to assessing whether or not any reasonable adjustments can be made to remove any barriers or difficulties that the employee is under due to any disability.
Occasionally an employer in order to assist them in discharging their legal duties towards their employees will often request that an employee, (who they are on notice of, or that they suspect may be at a disadvantage at work due to a medical condition), attend an occupational health assessment. The occupational health professional is an independent qualified medical practitioner who will assess the employee’s medical condition in light of his working duties, and relevant working conditions in the place of employment, they will write a report and suggest possible adjustments which the employer could consider and which would remove or reduce any disadvantages or difficulties that the employee may have. An employer will need to obtain the consent of the employee for this consultation and will also need to acquire the employee’s consent for the occupational health professional to release their report to the employer.
From section 12 (2) of the Equal Opportunities Act, above, you will appreciate that an employer does not have to follow the occupational health report’s advice. An employer however will have to consider whether any adjustment recommended or proposed is reasonable in the circumstances and if it is they should implement any changes for the disabled employee. But if any suggested changes are not reasonable they are not required to make the changes. An employer should take into account the law’s view of what is considered reasonable taking into account section 12. (2) (a)-(f) of the Equal Opportunities Act (see above) and must be prepared to justify any failure to make the adjustment in line with this subsection.
Chris is an Employment Law Barrister and Acting Solicitor of the Supreme Court of Gibraltar who specialises in Employment Law.
Are you an employer looking to defend, or perhaps reduce your exposure to a discrimination claim? Or perhaps you are an employee who you feel is being discriminated against? Please contact me at Phillips Barristers and Solicitors at 292 Main Street, Gibraltar. Telephone (+350) 200 73900, or email me at chris.brunt@phillips.gi for an informal discussion to see how I can assist you.
Disclaimer
All opinions are my own and are provided for information only and do not constitute legal advice. Please note that the information and any commentary on Gibraltar law contained in this article are provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but I do not accept responsibility for its accuracy and or for any consequences of relying on it. The information and commentary do not, and are not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal legal advice about your case or matter and not to rely on the information or comments on this site https://www.employmentlawgibraltar.com/