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The Disability Discrimination Act 1995 created new rights for the estimated 10 million disabled people in the UK. It made it unlawful to discriminate against disabled people in employment, access to goods, services, transport and education. This booklet considers the employment provisions of the Act.
Based on research, around one in five people of working age are considered by the Government and by the DRC to be “disabled”. The Disability Discrimination Act (DDA) makes it unlawful for an employer to discriminate against a disabled job applicant or worker in:
• Selection for jobs
• Terms and conditions of employment
• Promotion or transfer
• Training
• Employment benefits
• Dismissal or any other detrimental treatment
The Act covers not just employees and workers but also the self-employed, temporary and agency workers. Since October 2004 there is no exemption for small employers and workers may also be protected even after their employment has ended.
Prison officers, fire fighters and police officers are now covered by the Act. Members of the armed forces and volunteers remain excluded from the Act’s protection.
The DDA only protects people who are disabled, as defined by the Act.
Under the Act, a person has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. “Guidance” has been published on matters to be taken into account in relation to the discrimination of disability.
A mental impairment could be a life-long condition such as Down’s syndrome or dyslexia (dependant on the severity of the dyslexia). A mental impairment could also be a mental illness, for example depression, schizophrenia, bi-polar disorder and post-traumatic stress disorder. Until 5th December 2005, a mental impairment was only recognised as a disability for DDA purposes if it resulted from or consisted of a clinically well-recognised illness. However, as from that date this requirement has been removed.
Persons who have had a disability but have since recovered are expressly included Progressive conditions (e.g. cancer) are also expressly covered. From December 2005, the definition of disability, was widened to also include progressive conditions such as HIV, Aids, cancer and multiple sclerosis (MS) from the point of diagnosis, rather than at the point when symptoms are manifested.
Long term means at least 12 months or the remainder of the person’s life (if less than 12 months). Where a condition is recurrent it is treated as continuing if it is likely to recur. This would apply to conditions such as epilepsy.
Indicators of potentially substantial effects include:
• The time taken to carry out tasks
• The way in which tasks are carried out.
Account should be taken of the cumulative effects of impairments that may not in themselves be substantial if taken individually.
The effect of environmental conditions such as temperature, humidity or fatigue are relevant to the issue of whether or not the adverse effect is substantial.
The extent to which an employee can reduce the effects of their condition by modifying their behaviour will be taken into account, though beneficial effects of treatment will be disregarded in assessing the severity of effects. This means that the degree of impairment for someone with a hearing aid would be assessed by the level of hearing without the aid. This provision also applies to artificial limbs, but not glasses or contact lenses.
Severe disfigurement is a substantial adverse effect unless it is a disfigurement acquired by tattoo or body piercing.
A person is likely to be regarded as disabled only if their impairment affects their ability to carry out one of the following day to day activities:
• Mobility
• Manual dexterity
• Physical co-ordination
• Continence
• Ability to lift, carry or otherwise move every day objects
• Speech, hearing, eyesight
• Memory or ability to concentrate, learn or understand
• Perception of risk of physical danger
The guidance lists examples of effects that are likely to amount to an impairment and those that are not. So, for example, the guidance states that it would be reasonable to regard a condition as having a substantial adverse effect where it meant that the person could only walk at a slow pace, but not where they had difficulty in walking any more than a mile without discomfort.
On ability to lift, the guidance suggests that inability to pick up objects of moderate weight with one hand would be a substantial adverse effect, but not an inability to move heavy objects without mechanical aid.
The Act applies to people who had a disability in the past but not those with a genetic predisposition or future risk of disability. Persons who were registered disabled under the Disabled Persons Employment) Act 1944 (or the Northern Ireland equivalent) must satisfy the statutory test of disablement, though they will be treated as having had a disability in the past for the purposes of the definition.
There are five aspects to disability discrimination. The first is direct discrimination on the ground of a disabled person’s disability (section 3A(5)). The second is disability related discrimination that cannot be justified (Section 3A(1)).
The third is the duty to carry out reasonable adjustments (Sections 3A(2) and 4A)). This duty to adjust is the main protection provided to disabled workers. The fourth is unlawful harassment (Sections 3B and 4). The fifth is victimisation (Section 55).
If someone is treated less favourably than someone else who is not disabled, solely because of their disability, then this will amount to unlawful direct discrimination. This will cover situations where a person is treated differently because of stereotypical assumptions or prejudice about their condition or abilities. There is no defence to direct discrimination.
An example might be where an employer turns down an applicant for a job who has schizophrenia, because of a negative medical report based on stereotypical assumptions about the effects of the condition without consideration of their particular case.
Section 3A(1) of the Act sets out two elements to test whether an employer has discriminated against a disabled person for a disability related reason:
• For a reason that relates to the disabled person’s disability he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply
• He cannot show that the treatment in question is justified
The words “relates to” above cover a much wider range of circumstances than direct discrimination, and can be used to challenge the consequences of disability. So, for example, a requirement that a machine operative have a minimum level of numeracy or literacy may be discriminatory against a disabled person with learning difficulties. Likewise, a redundancy selection policy, which uses absence rates as a criteria, or a decision not to appoint a person who is visually impaired because the employer does not wish to have a guide dog on the premises, may discriminate.
An employer who discriminates against a disabled person for a disability related reason has a defence if he can establish that the discriminatory treatment is justified. The burden to prove justification is on the employer.
Discrimination will only be justified if “the reason for it is both material to the circumstances of the particular case and substantial”. What is material and substantial will be a matter for the tribunal, but decided cases suggest it is a low threshold for employers to overcome.
The Code of Practice issued under the Act to provide guidance for employers, workers and tribunals, suggests that employee or customer preference will not usually justify discrimination and also warns against unjustifiable medical checks and health requirements.
Sections 3A(2) and 4A of the Act impose a duty on employers to make reasonable adjustments where a provision, criterion or practice and/or any physical features of premises cause a substantial disadvantage for a disabled person in comparison with persons who are not disabled.
The duty to adjust only applies where the employer either knows or reasonably ought to know of the disabled person’s disability.
The Act gives examples of reasonable steps that employers might have to take including:
• Altering working hours
• Allowing time off for rehabilitation or treatment
• Allocating some of the disabled person’s duties to someone else
• Transferring the disabled person to another vacancy or another place of work
• Giving or arranging training to the disabled person or others
• Providing a reader or interpreter
• Acquiring or modifying equipment or reference manuals
• Adjusting the premises
• Providing supervision or other support
An employer cannot justify discrimination for a reason related to a person’s disability under Section 3A(1), if a reasonable adjustment would have prevented the reason from arising in the first place. For example, a company rejects a job applicant because he has a mobility restriction, which will make it difficult for him to hand deliver confidential internal documents. This duty forms a regular and significant part of the job but could easily be reallocated to another person. If the employer fails to consider reallocation of the duties he is unlikely to be able to justify the disability related discrimination.
Physical features are:
• Those arising from the design or construction of a building
• Exits or access to buildings
• Fixtures, fittings, furnishings, equipment or materials
• Any other physical element or quality of land or the premises
Some examples of what might cause substantial disadvantage to a disabled person include lighting that is too dim for someone with restricted vision, doors too narrow for wheelchair users or a work start time that causes problems for persons with a mobility restriction.
What is or is not a reasonable step will be decided by reference to the effectiveness of the adjustment, the practicability of carrying it out, its cost and the financial resources and size of the employer.
Frequently, assistance can be obtained to fund an adjustment, for example under the Access To Work scheme. If financial assistance is available to the employer and they do not find out about it and use it, they cannot then rely on the defence of the cost of the adjustment to argue that the adjustment was not reasonable.
For contract workers, the employer, and the person to whom the employee is hired, will have to consider making reasonable adjustments.
A person is unlawfully harassed for a reason related to their disability if he or she is subjected to unwanted conduct that has the purpose or effect of violating their dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment.
The conduct will only be regarded as harassment where all the circumstances are taken into account, including, in particular, the perceptions of the person being harassed.
Anyone involved in bringing proceedings, making allegations or giving information in connection with the DDA is protected by the Act against victimisation. That means that they must not be subject to any detriment as a result.
The procedures and remedies available are similar to those contained in the Sex Discrimination Act 1975 and the Race Relations Act 1976. In particular:
• There is a three-month time limit for lodging tribunal applications, though this is extended by three months to allow the statutory grievance procedure to take place.
• The employment tribunal has the power to make a declaration, recommendation or to award compensation, and interest can be payable. Compensation may be reduced if the claimant failed to complete the statutory grievance procedure.
• A questionnaire procedure is available to disabled workers who consider that they might have been discriminated against. They can serve the questionnaire on their employer to ask questions about the reasons for their treatment. If the employer fails to answer the questions within eight weeks, a tribunal may use this fact to draw an inference of unlawful discrimination. Questionnaires have to be served within three months of the act of discrimination, or within 21 days of lodging a tribunal application.
Under the new grievance procedures, unless there are special circumstances (e.g. threats or continuing harassment by the employer) the employee must write to the employer raising the grievance and then wait 28 days to allow the employer to respond before bringing a discrimination claim to an employment tribunal.
The code of practice for the elimination of disability discrimination does not impose legal obligations but can be put in evidence before tribunals and must be taken into account. Its main impact is likely to be through the many helpful examples given as to what amounts to unlawful discrimination.
A copy of the Code of Practice can be obtained from the Disability Rights Commission website at: www.drc-gb.org