Let’s look at the amendments to the text of the law as stated in the main body of Gibraltar’s Equal Opportunities Act 2006 with respect to employees who had past disabilities as opposed to subsisting and current disabilities.
Chris Brunt is a Gibraltar employment lawyer a Barrister and Acting Solicitor who will consider all discrimination employment cases on a “no win no fee” basis.
Schedule 1 of Gibraltar’s Equal Opportunities Act 2006 gives the definition of disability, while Part 2 of the Schedule deals with past disabilities.
Paragraph 1 of Part 2 of Schedule 1 of the Equal Opportunities Act 2006 refers to modifications to the law and lists additions to the text of the Equal Opportunities Act.
Paragraph 2 in Part 2 of the Schedule modifies the text of the law in the Equal Opportunities Act 2006 such that references in the Equal Opportunities Act to a disabled person are to be read as references to a person who has had a disability.
Paragraph 2C in Part 2 of the Schedule inserts words into section 12(1) of the Equal Opportunities Act 2006. Let’s see how the text of the law is reflected. The text in section 12(1) is currently shown as
“Meaning of Discrimination
A Person (“A”) discriminates against a 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 [Paragraph 2C of Part 2 adds] and has not had that particular disability.
Again, this textual addition clearly demonstrates that past disabilities are taken into account in certain circumstances. Let’s see how Part 2 of the First Schedule to Gibraltar’s Equal Opportunities Act 2006 continues.
Section 29(1) of the Equal Opportunities Act 2006 reads
“Meaning of Duty to Make Reasonable Adjustments – Disability
For the purposes of this Act “duty to make reasonable adjustments mean that where-
(a) a provision, criterion or practice applied by or on behalf of a person set out in section 12(6) (“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 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
By Paragraph 3 of Part 2 of the First Schedule to the Equal Opportunities Act the words “and who have not had a disability” were inserted after the original text ‘not disabled’ (see paragraph above).
Paragraph 4 of Part 2 of Schedule 1 states:
“In sections, 15(7)(b), 20(10)(b), 22(6)(b), 23(5)(b), 25(4)(b), 26(4)(b), 27(10)(b) and 46(4) for “has” in each place substitute “has had”.
So, typically, for example, where section 15(7)(b) of the Equal Opportunities Act 2006 the text currently reads:
“Nothing in subsection (6) imposes any duty on an employer in relation to a disabled person if the employer does not know and could not be reasonably expected to know……….
(b) in any case, that a person ‘has’ a disability and is likely to be placed at a substantial disadvantage by the provision, criterion, practise or physical feature in comparison to persons who are not disabled.
Now reads ‘has had a disability.
The other additions to the text of the main body of Gibraltar’s Equal Opportunities Act with respect to past disabilities and which should be taken into account when reading the Act are provided for in paragraph 5 of Schedule 1 of Part 2.
Paragraph 5 of Part 2 of Schedule 1 of the Equal Opportunities Act 2006 reads,
For paragraphs 2(1) to (3) of Part 1 of this Schedule, substitute-
[This fundamentally changes the text in Part 1 of the Schedule and which now takes into account past disabilities, the substitution in paragraphs 2(1) -(3) reads] …….“(1) The effect of an impairment is a long-term effect if it has lasted for at least 12 months.
(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 treated as continuing to have that effect if that effect recurs
(3) For the purposes of sub-paragraph (2), the recurrence of an effect shall be disregarded in “prescribed circumstances” (see later posts for the prescribed circumstances).
Summary
When considering Gibraltar’s Equal Opportunities Act 2006, that is with respect to disability discrimination – It is important to consider that the text of the Act contained in the main body of the legislation has been altered with respect to how past disabilities are to be considered, it is not immediately obvious and might catch the unwary?
See the previous post for a brief introduction to protected characteristics in Gibraltar discrimination law
Chris is an Employment Law Barrister and Acting Solicitor of the Supreme Court of Gibraltar who specialises in employment law.
Are you an employer who requires advice on how to manage your business’s exposure to a disability claim? There is no cap on the amount awarded against employers for an award for discrimination in the Employment Tribunal, and it is easy to unwittingly expose your business to a claim by not adopting safe Human Resource procedures and policies when dealing with a disabled employee, or an employee who has been on long term sick leave.
Or, if you are an employee who feels they have been discriminated against, contact me to evaluate your prospects for a claim for disability discrimination.
Contact me for a free 30-minute consultation at Phillips Barristers and Solicitors, email me at chris.brunt@phillips.gi or call me on 200 73900.
All employee cases are considered on a “no win no fee” basis.
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/