Gateways guidance: 15.2 Legal requirements

Postgraduate deans, clinical tutors, educational supervisors, medical Royal College trainers and advisers, and the Colleges and specialties themselves should be familiar with their legal obligations. They must know about and apply, as a minimum, the provisions in relation to:

• what is unlawful discrimination
• making reasonable adjustments
• the anticipatory duty
• genuine and relevant competence standards
• termination of employment
• the Public Sector Equality Duty.
  

These responsibilities reflect the position at medical school. However, the trainee is now not only a doctor in training, but is also a doctor in employment providing, under supervision, a clinical service to patients.

With the contract of employment, different legal provisions come into play. Under Part 5 of the Equality Act, discrimination is outlawed in all aspects of employment and occupation including:

• recruitment and selection, including advertising jobs
• retention of employees
• promotion
• training.

The main provisions of Part 5 are that:

• direct discrimination (which includes treating someone less favourably directly because of their disability) is unlawful
• discrimination arising from disability (treating someone less favourably than others for a reason relating to their disability) is unlawful
• reasonable adjustments are expected in all aspects of employment, so must be made to working conditions, job descriptions, training, progression and the workplace environment to enable or help disabled people to do their job
• harassment at work is discriminatory
• an employer must not victimise or treat unfavourably someone disabled or not, because they have made allegations of discrimination or brought a complaint or any action under the Equality Act. A complaint of discrimination may be presented to an Employment Tribunal (Industrial Tribunal in Northern Ireland).

Part 5 also refers to combined discrimination (which includes treating someone less favourably because of their disability and another characteristic such as their race). However, this was not brought into force in October 2010.

The main difference from the education provisions of the Equality Act 2010 is that employers do not have a ‘duty of anticipation’. This means that they do not have to make adjustments to their premises or working practices until they are actually needed by a disabled employee or applicant. Employers must, however, take reasonable steps to find out if an employee or applicant is a disabled person. And many would regard taking up the anticipatory duty as best practice in line with the DED, regardless of the letter of employment law.

The duty to anticipate the requirements of disabled people remains in relation to the education and training components of the postgraduate period. This means that improvements must be planned in advance, reviewed and updated on an ongoing basis. Clinical supervisors should have training in disability equality made available to them.

Medical schools should also be aware that it is unlawful under the Equality Act to ask job applicants specific health related questions in job applications, except in prescribed circumstances.