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Disability discrimination

Figures issued by the UK’s Office for National Statistics in 2006 indicate that nearly one in five people of working age in Great Britain are disabled and that only about half of them are actually in work, compared with 80% of non disabled people of working age. This section looks at what the law is doing to encourage employers to create environments in which those with a disability are able to work. For more information about your rights in relation to disability discrimination please contact employmentlawhelp

Disability Discrimination Act 1995

The Disability Discrimination Act 1995 (DDA), as amended, makes it unlawful to discriminate against a person on account of their disability and applies in a number of areas including employment, education, the provision of goods and services and access to facilities and premises. It differs from other discrimination legislation, as we will see, in that it places a positive duty upon employers and those providing services, to make adjustments to accommodate the needs of those with a disability.

The term disability has a specific meaning for the purposes of the legislation and to be regarded as disabled a person must have a physical or mental impairment which has, or is likely to have, a substantial and long-term adverse effect on their ability to undertake normal, everyday activities, even if the person affected is not actually suffering at that particular time or has recovered.
Disability legislation differs from other discrimination legislation in that it does not specifically define disability discrimination by reference to the concepts of direct and indirect discrimination, although it does refer to harassment and victimisation. Instead, it places a positive duty not simply to refrain from discriminating but also to take steps to ensure that those with a disability have the same access to employment and services as those who are not disabled. This is the concept called “reasonable adjustment” which is looked at in more detail later.

The legislation makes it unlawful for an employer to discriminate against a disabled job applicant or worker in relation to:

  • selection for jobs,
  • terms and conditions of employment,
  • promotion or transfer,
  • training,
  • employment benefits, and
  • dismissal or any other detrimental treatment,

and does not just benefit employees but also the self-employed, temporary and agency workers.

When is a person disabled

As stated above, there are three essential elements to a disability:

  • Physical or mental impairment, having a
  • substantial and long-term adverse effect, on the person’s
  • ability to undertake normal, everyday activities.
Physical or mental impairment

The meaning of disability is wide and includes not just physical disabilities such as mobility problems or hearing and eyesight impairment, but also includes learning disabilities, some mental illnesses (provided that they are severe and long term) including those caused by stress, illnesses and conditions such as aids and cancer and those where a person is dependent on drugs to enable them to function normally.

Thus a person would be regarded as having a disability, for example, if they had a life-long condition, for example Down’s syndrome or cerebral palsy, or if they became disabled due to injury or illness or became subject to a mental impairment such as depression, schizophrenia, or post-traumatic stress disorder.

In addition, progressive conditions (e.g. cancer or HIV) are also regarded as a disability as of the point at which the condition is diagnosed even if the symptoms have yet to become apparent.

The need to be substantial and long-lasting

For a condition to be a disability it must be long term – in other words it must last for at least 12 months or the remainder of the person’s life (if less than 12 months). Recurrent conditions are regarded as continuing if they are likely to recur – e.g. epilepsy.

In addition to being long-lasting, the condition must also give rise to substantial impairment – for example increasing the time which it takes for someone to carry out tasks or changing the manner in which tasks are carried out. Thus a minor impairment, such as not being able to see without glasses, would not be regarded as being a disability, although not being able to hear without a hearing aid would be. Also, a number of minor impairments might, when taken together, amount to a disability.

Affecting ability to carry out normal day to day activities

Finally to be regarded as disabled the person’s ability to undertake normal everyday activities must be impaired. In other words it must affect issues such as their:

  • mobility
  • manual dexterity
  • co-ordination
  • ability to lift or move everyday objects
  • eyesight, hearing or speech
  • memory
  • ability to understand
  • ability to learn
  • perception of danger

and it must be an everyday activity, not something out of the ordinary. Thus if the disability prevented them from lifting an everyday object then it could be regarded as disability, but if it merely prevented them from lifting the kind of object which most people would have problems with, then it would not.

What constitutes discrimination?

There are five principle aspects to disability discrimination:

  • direct discrimination - this occurs where a person with a disability is treated less favourably than one who is not disabled and the reason for that less favourable treatment is solely because of their disability. There is no defence to direct discrimination. Examples of this would be not taking a person on simply because they were partially sighted or had epilepsy.
  • disability related discrimination that cannot be justified – occurs where an employer, for a reason related to a person’s disability, treats them less favourably than they would have treated a person without that disability and they are unable to show that the treatment is justified. This is a wider definition of treatment than under direct discrimination and can be used to challenge, for example, decisions not to employ a person with a learning difficulty to do a particular manual job they are capable of doing. If it can be justified – for example not employing someone with a low level of numeracy to carry out tasks involving adding up – then it will not constitute discrimination. However, the burden to show justification is upon the employer and will only be capable of being justified if the reason is both material to the circumstances of the particular case and substantial.
  • the duty to carry out reasonable adjustments – requires employers and to make such adjustments to their policies, practices and premises as are reasonable in order to help employees and clients who are disabled to overcome that disability – in other words taking steps to remove barriers, either physical or procedural, which prevent a person with a disability from carrying out various tasks.
  • unlawful harassment - a person is subject to unlawfully harassed on account of their disability if they are subjected to unwanted conduct the purpose or effect of which is to violate their dignity or create an intimidating, hostile, degrading, humiliating or offensive environment. When judging whether this has occurred, the perceptions of the person being harassed are taken into account and it is not necessary that it was the intention of the person committing the harassment to cause offence.
  • Victimisation – this occurs where a person is treated less favourably because they have sought to exercise their rights under the DDA or have assisted another person in doing so.

Reasonable adjustment

The duty to make reasonable adjustments is what sets the DDA apart from other discrimination legislation as it creates a positive duty upon an employer to take steps such as will enable a person with a disability to be able to work in a similar way to one without that disability, as opposed to simply requiring that discriminatory acts are not committed.

However, reasonable adjustment does not have to mean altering premises or purchasing equipment or services - it can simply mean altering the way in which things are done to accommodate a disabled person. This could include:

  • allowing part of a disabled person’s job to be undertaken by someone else in the firm,
  • allowing the disabled person to undertake a different job that they are able to do,
  • changing a disabled person’s working hours, location or terms of employment so as to enable them to undertake tasks,
  • modifying procedures and processes to accommodate a person’s ability.

Two points in particular should be noted in relation to reasonable adjustment for employees:

  • you do not need to make adjustments for disabled employees you do not yet have, whereas you would be expected to make adjustments to enable potential disabled customers or clients to access your goods or services, and
  • the word reasonable is used. Thus, if it is not reasonable for you to make an adjustment then you are not required to do so.

It should be noted, however, that whether, in terms of cost, it is reasonable for an employer to bear the cost of the adjustment will usually be looked at from the point of view of ability to absorb the cost rather than the cost itself. Thus a large firm with considerable resources is likely to have to absorb more in the way of the cost of adjustment than a smaller firm with very little in the way of resources. The kind of factors which will be taken into account in deciding whether the adjustment is reasonable include:

  • will they resolve the employee’s difficulty in carrying out their job?
  • how practicable is it for the employer to make the adjustments?
  • what is the cost likely to be?
  • how much disruption will it cause?
  • will it help or hinder other workers?
  • what are the financial resources of employer making the adjustment?
  • is there any financial assistance available?

The duty to carry out an adjustment applies only in relation to disabilities of which the employer knew, or ought to have known.

Bringing a claim

If you are an employee and you believe that you have been discriminated against on the basis of your disability then you need to raise the matter with your employer as soon as possible – possibly by means of an informal discussion in the first instance. This will help to make sure your employer is aware of your disability and the steps that he or she needs to take in order to comply with the legislation. You may need to remind your employer of their duties under the DDA. If this proves unsatisfactory then you will need to raise the matter in writing. Alternatively contact employmentlawhelp and we will advise you as to your position and the steps you may wish to consider taking.

You can if you wish raise questions of your employer using a Disability Discrimination Act questionnaire (DL56) which you can obtain from the Equality and Human Rights Commission. You need to complete the first part of this questionnaire yourself, setting out the reasons why you feel you have been discriminated against, and ask your employer to comment on your claim. Whether or not you agree with them, your employer’s answers in the questionnaire should help you decide if you can settle the dispute or need to make a complaint to an Employment Tribunal.If your employer refuses to answer the questionnaire then this is a factor which may be taken into account at a later date by the Employment Tribunal.

As with other forms of discrimination there is a three-month time limit for lodging tribunal applications, although this is extended by a further three months to allow the statutory grievance procedure to take place.

A complaint is made on form ET1 which you must send to the Regional Office of Employment Tribunals. You can obtain a form ET1 from a number of places including Jobcentres, the local employment tribunal or online at the Employment Tribunal web site. The complaint must be made within three months, less one day, from the date upon which the discrimination first happened or, if you have gone through the grievance procedure, six months less one day. Note, however, that an employer must be given at least one month to sort out your grievance before you can proceed to the Employment Tribunal so it is vital that you complain to your employer and start the grievance process as soon as possible.

For more information on taking matters to the Employment Tribunal, contact employmentlawhelp on 0844 8044 800 and we will be pleased to help you.