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  • The exemption for small firms (S7) was repealed by the Disability Discrimination Act 1995 (Amendment) Regulations 2003, regulation 7.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.
  • Progressive conditions are treated as having a substantial adverse effect.

Long-term adverse effects

Long-term means that it has lasted or is likely to last at least twelve months or the rest of the person’s life.

Meaning of Discrimination

There are four types of disability discrimination:

1. Disability-related discrimination

This is where an employer treats a disabled person less favourably for a reason related to their disability than they treat or would treat others to whom that reason doesn’t apply. The comparison, therefore, appears to be with a person to whom the reason does not or would not apply.

It does not matter if the employer did not know of the disability (J Heinz Co Ltd v Kenrick).

2. Failure to make reasonable adjustments

An employer must make reasonable adjustments where necessary to prevent a disabled person being at a substantial disadvantage. The duty arises as follows.

  • Where a provision, criterion or practice or a physical feature of the premises causes substantial disadvantage to actual or potential job applicants or employees.
  • That the employer knows or could reasonably be expected to know are (1) disabled and (2) substantially disadvantaged by the provision etc or physical feature.

What is the criteria for reasonableness? DDA s18B (1) sets out criteria for reasonableness including the following.

  • Effectiveness
  • Practicability
  • Cost
  • Disruption

The Act provides a list of twelve examples of reasonable adjustments including alterations to the following.

  • Premises
  • Equipment
  • Hours of work
  • Place of work
  • Duties,

The purpose of the list is to focus the minds of employers and tribunals respectively (Morse v Wiltshire County Council).

Transfer to another job may be a reasonable adjustment (Archibald v Fife Council).

Guidance on how tribunals should determine whether or not there has been reasonable adjustment has been provided by the EAT (Environment Agency v Rowan).

3. Direct Discrimination

This is where an employer discriminates on the ground of disability itself.

4. Victimisation

Victimisation has a particular legal definition in equality law. The sections of the DDA relating to protection from victimisation do not only relate to disabled people.

It is unlawful for employers to treat a person less favourably because they have:

  • taken proceeding under the Act
  • given evidence or information at such proceedings
  • helped a disabled person to take proceeding under the Act
  • alleged that someone has infringed the Act

Complaining of discrimination – time limits

New legal procedures for dealing with grievance and discipline issues came into force from October, 2004 and the majority of disability discrimination cases will be subject to these new rules.

It is important that the rules are followed because:

  • There are penalties for failing to do so – in some cases the tribunal complaint will be rejected or compensatory awards can be reduced.
  • Time limits can be extended by following the new rules.
  • Discrimination as a grievance
  • If someone alleges disability discrimination has occurred, they must now lodge a letter of grievance with their employer. This must be done within 3 months of the act of discrimination being complained of.

This then has the effect of extending the time limit for lodging a compliant with a tribunal by a further 3 months (6 months from the date of the act being complained of).

Also, the tribunal application cannot be submitted until at least 28 days AFTER the letter of grievance has been lodged.

If someone fails to send the grievance letter and submits a tribunal complaint, the tribunal application will be automatically rejected. They must then submit the grievance letter within 1 month of the normal 3 month limit and they have 3 months to resubmit a tribunal complaint (but not within 28 days of sending in the grievance).

It is important that representatives give the right advice on this to members, as the new rules could restrict the ability of tribunals to accept ‘late’ claims, especially if the grievance letter is not submitted in time.