Discrimination on the Ground of Disability

The Disability Discrimination Act 1995

The Disability Discrimination Act 1995 (DDA) was passed with the aim of ending discrimination against disabled persons in the workplace.

The Act has been amended a number of times in order to improve its scope, most significantly by the:

  • Special Educational Needs and Disability Act 2001 (which introduced provisions to cover education)
  • Disability Discrimination Act (Amendment) (Further and Higher Education) Regulations 2006
  • Disability Discrimination Amendment Regulations (bringing in changes to employment] 2003
  • Disability Discrimination Act 2005 (which covers councillors, private clubs etc).
  • The exemption for small firms (S7) was repealed by the Disability Discrimination Act 1995 (Amendment) Regulations 2003, regulation 7.

There are separate amendments, with similar effects, in Northern Ireland.

The DDA applies both to disabled applicants for employment and to disabled employees. It applies equally to applicants for outside adverts and internal trawls and notices. It covers:

  • Recruitment and selection
  • Terms and conditions
  • Opportunities for promotion, career development and training
  • Working conditions
  • Employee benefits
  • Dismissal procedure

Significant parts of the law came into force on 2 December 1996. From October 1999, service providers have had to make ‘reasonable adjustments’ for disabled people, such as providing extra help or making changes to the way services are provided. From October 2004 service providers have had to make ‘reasonable adjustments’ to the physical features of premises to overcome physical barriers to access.

Parts of the law relating to education came into force in September 2002, with other parts coming into force in 2003 and 2005. Further new provisions came into force in September 2006. New parts of the law relating to employment came into force in October 2004.

From December 2005, private clubs have had obligations not to treat disabled people less favourably, as have local authorities in respect of councillors. From December 2006, private clubs and local authorities in respect of councillors have had to make reasonable adjustments to enable disabled people to access clubs / function fully as councillors. Public authorities have been covered by anti discrimination provisions in relation to all their functions; and certain transport vehicles have been covered by the goods and services provisions.

A new duty to promote disability equality was introduced in 2006 – this gives rights to disabled people collectively rather than as individuals.

Meaning of Disability

A person has a disability for the purposes of the DDA if he or she has “a physical or mental impairment which has a substantial and long term adverse effect on his or her ability to carry out normal day to day activities.”

  • Impairment
  • Adverse effect
  • On the ability to carry out normal day to day activities
  • Effect must be long term and substantial
  • The tribunal decides and not doctors.

Recent case law has now extended the protection to someone who is caring for a disabled person (Coleman v Attridge Law).

The Impairment

The impairment may be physical or mental. The requirement for mental illness to be “clinically well recognised” was repealed by the Disability Discrimination Act 2005. The Act also amended the definition of disability so that anyone with cancer, MS, or HIV is now deemed disabled from the point of diagnosis rather than the point from when the condition starts to have a substantial and adverse effect on their ability to carry out normal day to day activities. The claimant, in establishing impairment is not required to show causation (Millar v Inland Revenue Commissioners).

Drug or alcohol dependency and some personality disorders are excluded.

A person has a disability for the purposes of the DDA if he or she has a ‘physical or mental impairment which has a substantial and long-term adverse effect on his[/her] ability to carry out normal day-to-day activities’ (s1(1)). Note that the test is not concerned with the effect of the disability upon the claimant’s ability to perform work.

Blind and partially-sighted persons are deemed to be disabled by virtue of the Disability Discrimination (Blind and Partially-sighted Persons) Regulations 2003 as are people who registered under s6 of the Disabled Persons (Employment) Act 1944 (by virtue of DDA schedule 1, para 7).

Normal day-to-day activities

An impairment is to be taken as affecting the ability of a person to carry out normal day-to-day activities only if it affects one of the matters set out in sch. 1 para. 4(1). These are listed below.

  • Mobility
  • Manual dexterity
  • Physical co-ordination
  • Continence
  • Lifting, carrying and other moving of everyday objects
  • Speech, hearing or eyesight
  • Memory, or ability to concentrate, learn or understand
  • Perception of the risk of physical danger

Substantial adverse effects

    Severe disfigurement is to be treated as having a substantial adverse effect. An impairment is required to have a substantial adverse effect even if medical treatment removes that effect. Spectacles and contact lenses are exempt from this. Conditions which have a substantial adverse effect but which have abated are treated as having that effect if they are likely to recur.

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For more information on:

  • Long-term adverse effects
  • Meaning of Discrimination
  • 1. Disability-related discrimination
  • 2. Failure to make reasonable adjustments
  • 3. Direct Discrimination
  • 4. Victimisation
  • Complaining of discrimination – time limits