News

Pam Loch looks at the issues surrounding disability in the workplace and how to understand the law – article for Workplace Law; published 1 Nov 2009

 

The DDA has been amended by the Disability Discrimination Act (Amendment) Regulations 2003 which took effect from 1 October 2004 and widened the scope of the DDA.  Further amendments were introduced by the Disability Discrimination Act 2005 which extended the definition of disability following extensive consultation.

Employers’ Key Responsibilities

There are also conditions which are specifically deemed to fall within the scope of the DDA:
• severe disfigurement;
• visual impairments; and
• cancer, MS and HIV infection.

 

It can be difficult for an employer to establish whether an employee does have a disability where it isn’t specifically mentioned in the DDA.    However, the definition under the DDA is specific and the key points employers should be considering in trying to ascertain whether or not a person has a disability are as follows:
(1) “substantial” adverse effect – it should be a condition which is more than minor or trivial with the focus being on what the individual cannot do, or can only do with difficulty.  The comparison should be with how the individual would carry out the activity concerned but for the impairment, and except for the use of corrective eyewear, the effects of medical treatment must be taken out of the equation; and
(2) “long-term” adverse effect – the effect of a condition is long-term if it has lasted at least 12 months, it is likely to last for at least 12 months or it is likely to last for the rest of the life of the individual; and
(3) “normal day to day activities” – at least one of the following functions must be affected: mobility, manual dexterity, memory or the ability to concentrate.  The fact that an individual might only be affected whilst at work does not mean the DDA doesn’t apply.  Therefore employers should consider what difficulties an employee may experience in their personal life as a result of a disability.

 

Disability discrimination in the workplace has seen a number of developments over the years with highly publicised key cases.  However, employers should be aware of their basic responsibilities under each strand:

 

Section 3A (5) of the DDA sets out that “a person discriminates against a disabled person if on the ground of the disabled person’s disability, they treat the disabled person less favourably than they treat or would treat a person not having that particular disability whose relevant circumstances, including abilities, are the same as, or not materially different from, those of the disabled person”.

 

Establishing whether you are directly discriminating against a worker with a disability should be a straight-forward exercise and, unlike with other forms of discrimination, there can be no defence of justification.  The comparator the worker can use can be hypothetical and can be a disabled or non-disabled person.

The wording of Section 3A(5) appears limited in terms of who direct discrimination applies to however case law has now established that the DDA also gives protection associative discrimination which is explored in further detail below.

Section 3A(1) of the DDA states that “A discriminates against B if, for a reason related to B’s disability, A treats B less favourably than A treats or would treat someone to whom that reason does not apply, and A cannot show that the treatment is justified.”

This strand provides a wider scope and also allows an employer a defence of justification.  Unlike with direct discrimination, the worker must be able to point to a comparator (real or hypothetical) who is not disabled.  In these cases, the employer must also know that the worker suffers from a condition, although you don’t need to know whether it qualifies as a disability according to the DDA.  What this means in practice is that employers should be cautious of the way in which they deal with any employee who is unwell, regardless of the condition, as they may suffer from a disability.

Section 4A(1) of the DDA states that where “a provision, criterion or practice applied by or on behalf of an employer, or any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or physical feature, having that effect”.

What this means in practice is that employers are under a duty to make reasonable adjustments for workers, or indeed interview candidates, who have a disability to ensure that they are on an equal footing to non-disabled workers or candidates.  This could be from measures as simple as providing an orthopaedic chair, to adapting the working pattern of a worker with a disability to allow them to work shorter hours, or work from home.

Clause 26 (1) of the DDA states that “a person (A) victimises another person (B) if A subjects B to a detriment because (a) B does a protected act; or (b) A believes that B has done, or may do, a protected act.”

A protected act includes bringing a claim under the DDA, exercising any other right under the DDA or making an allegation that someone has breached the DDA.  For example, if an employee raised a grievance stating that they had been discriminated against at work on the grounds of their disability, and then that employee was dismissed or otherwise treated unfavourably because they raised a complaint that would constitute victimisation.

There has been a significant number of cases on the DDA since it came into force.  In particular there have been a number of high-profile leading cases.  Coleman v Attridge Law (Case C-303/06), Lewisham London Borough Council v Malcolm (UKHL 43 [2008] IRLR 700) and Fareham College Corporation v Walters UKEAT/0396/08; UKEAT/0076/09 are all cases which have developed key areas of disability discrimination law.

The Malcolm judgment, although not an employment case, concerned the fairly technical point of comparators and introduced fundamental changes to the way disability related discrimination should be assessed in the employment arena as well. 

Malcolm was a schizophrenic man who, as a result of unlawfully sub-letting his flat was subjected to eviction by the local council.  Malcolm argued that his disability was the reason for the unlawful sub-letting and that the council treated him less favourably for a reason related to his disability.  He argued that his comparators were tenants who had not unlawfully sublet.  The case eventually went to the House of Lords who ruled that in fact the correct comparator was a tenant who had unlawfully sublet but was not disabled and that unless the council had his disability in mind as a motivating factor, Malcolm’s eviction could not be for a reason related to his disability.  Although this decision has restricted claimant’s ability to bring a claim under section 3A(1) of the DDA, employers should remain mindful of their obligations to make reasonable adjustments and not to harass employees.

The Coleman decision introduced the important new claim of associative discrimination.  The case highlights to employers the need to be aware of the personal circumstances of their workers which may affect the manner in which they should be treated at work.  Ms Coleman was a legal secretary who cared for her disabled son.  She alleged that because of her son’s disability she was abused at work and was denied flexible working requests when requests from other employees who had children, but not disabled, were approved. As a result Ms Coleman claimed that she was a victim of discrimination on the grounds of disability by association.  The ECJ agreed and ruled that a person who is harassed or directly discriminated against on grounds of association with a disabled person is protected by the Framework Directive 2000/78/EC (the “Directive”).

There have also been a range of cases concerning reasonable adjustments such as the Fareham case.  Following this EAT ruling, it was established that an employer’s failure to make reasonable adjustments to avoid dismissing a disabled employee is sufficient to render the dismissal itself an act of discrimination under the DDA.  In practical terms this means that employers must consider any reasonable adjustments which could avoid the dismissal of a disabled worker, which can include, for example, allowing that worker to work reduced hours or from home.

Much debate has ensued following these decisions as to whether the DDA should or could be amended to incorporate them.  No further amendments to the DDA have taken place however the upcoming Equality Bill will replace the DDA and incorporate many key points from the various cases of recent years.

On 22 October 2009 The Autism Bill was passed by the House of Lords and, as the Autism Act, will become the first ever disability-specific law.  The Autism Act will place the Secretary of State for Health under a duty to introduce a strategy for improving outcomes for adults with autism and to introduce statutory guidance for local authorities and Primary Care Trusts.  The areas the Autism Act will cover include requiring local authorities and PCTs to provide services for diagnosing and identifying adults with autism and to provide appropriate service to adults with autism.

Although the Autism Act won’t place any new obligations on employers in terms of their employees, it does highlight the focus and importance the English legislature places on the rights of individuals with a disability.

In 2010 the shape of discrimination law will change and the current legislation in respect of disability under the DDA will be replaced.

The Equality Bill 2008-2009 brings together the DDA and other existing discrimination legislation in respect of sex, sexual orientation, religion or belief and age.  It was published in April 2009 and is expected to receive Royal Assent and come into effect in 2010.

The key proposals of the Bill include:
• Extending the law on direct discrimination so that discrimination by association or perception will become unlawful.
• Expanding the law on lawful positive discrimination.
• Removing the requirement for a person to be undergoing medical treatment for gender reassignment protection to apply.
• Enabling Employment Tribunals to make recommendations which could affect the entire workforce.
• Increasing obligations on public authorities to achieve equality by for example using their procurement rules.
• Introducing greater transparency on pay.

Disability discrimination will receive particular attention and employees may find it easier to prove they have a disability as the schedule of deemed disabilities currently contained in the DDA will not be replicated in the Bill.  The definition of disability is simplified in the Bill by Clause 6 which states that:

The Bill also contains provisions to protect individuals from indirect disability discrimination and discrimination arising from disability.  The latter seeks to replace the current disability-related discrimination provisions following the decision in Malcolm.  Under the Bill, as with other forms of discrimination, an employer will have to show that the treatment in question is a “proportionate means of achieving a legitimate aim” in order to avoid liability.

Despite the imminent changes to discrimination legislation in the current climate discrimination claims are expected to continue to increase. With unlimited awards being one potential outcome, it’s important that employers review their policies and procedures and consider training their workers to prevent claims arising in the first place.  Prevention continues to be much better than the cure. 

Yes, severe disfigurement, visual impairments, cancer, MS and HIV infection are all specifically referred to and covered by the DDA.  An employer who knows or suspects a worker has one of these conditions should take appropriate steps to ensure that individual is not discriminated against, including considering reasonable adjustments. 

How can an employer know that someone has a disability if the condition is not a deemed disability?

If the employee has stated they have a disability or received information which suggests the employee may have a disability then the employer should investigate further to ascertain whether or not the condition the employee has actually falls within the requirements set out under the DDA.   Certain conditions are excluded by the DDA.  If the employer is unsure they can ask the employee’s consent to obtain a report from their GP to ascertain whether or not it is a disability.  The new fit note regime, to be introduced in Spring 2010, may also help employers faced with this dilemma with the disclosure of more information from GP’s. 

As well as a claim for the provision of the DDA the employee claimed their employer breached, the employee will be able to bring a claim for victimisation.  Employers must not subject an employee to a detriment for exercising their rights under the DDA.

The ECJ ruled that a person who is harassed or directly discriminated against on grounds of association with a disabled person is protected against “associative discrimination”.

In 2010 when the Equality Bill receives Royal Assent and comes in effect.