Which Act applies: Equality Act or DDA? - Stammering /stuttering and disability discrimination
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Which Act applies - Equality Act or DDA?

Most of the Equality Act 2010 came into force on 1st October 2010. This page outlines how to decide whether discrimination falls within the Disability Discrimination Act (DDA) as being before 1st October 2010, or within the Equality Act as being on or after 1st October. The Government has published guidance: Equality Act 2010: Transitional Arrangements (link to GEO site archived at National Archives).

In summary

Single acts versus continuing acts

It seems that the position is as follows:

This position on continuing acts ties in with s.123(3)(a) Equality Act 2010. This says that - for the purpose of computing the (normally) 3 month time limit within which to bring a claim - conduct extending over a period is to be treated as done at the end of the period. An advantage of being able to bring a claim for a continuing act may be increased compensation, since it may mean that discrimination going back well before the 3 month time limit can be included as part of the continuing act.

Any legal proceedings brought or in the process of being heard before 1st October will proceed under the DDA. But it seems that discrimination or harassment seen as falling before 1st October under the rules outlined above will also be within the DDA, even if proceedings are begun after 1st October.

Special rules for omissions

This is likely to be relevant particularly to a failure to make reasonable adjustments, but also applies to other omissions. One might think a failure to make reasonable adjustments would be a continuing act, but it may well be dealt with under specific rules applying to omissions.

S.123(3)(4) Equality Act 2010 applies in deciding whether a claim has been brought within the (normally) 3 month time limit. However, it is possible that tribunals will take the approach of applying s.123 and similar rules in the DDA in deciding whether the omission, e.g. a failure to make reasonable adjustments, falls before or after 1st October.

S.123 says that failure to do something is treated as occurring when the person in question decided on it. In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something (a) when P does an act inconsistent with doing it, or if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. On similar rules under the DDA, see Matuszowicz v Kingston Upon Hull City Council (2009).

Rather than the issue of which legislation it falls within, the most important point is likely to remain whether the claimant is out of time to bring a claim at all, on the basis that s/he has delayed beyond 3 months (unless the tribunal agrees to extend this) after the time when the failure is treated as taking place under these rules. See Reasonable adjustment rules: time limits.

Victimisation

S.27 Equality Act 2010 protects against victimisation for bringing or being involved in previous discrimination claims. Rule 8, SI 2010 No. 2317 makes clear that the previous claims may be under the DDA (or other discrimination legislation) - they need not be under the new Equality Act.

Equality Act 2010 - main page

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Last updated 13th October, 2010