Introduction
This article is based on the Disability Discrimination Acts of both 1995, 2005, and relevant amendments.
The Disability Discrimination Act 2005 mostly implements non-employment related proposals such as inclusion consultation documents, changes affecting public sector responsibilities to the general public, transport, renting of premises and a provision for membership of larger private clubs. Its employment related changes are those such as changes to the rules about job advertisements.
Background to the Disability Discrimination Act
The Disability Discrimination Act (DDA) was passed in 1995 to end the discrimination that many disabled people face. It protects disabled people in:
- employment;
- access to goods, facilities and services;
- the management, buying or renting of land or property; and
- education.
What is disability discrimination?
A disabled person is discriminated against if they are treated less favourably than others would be treated in the same situation, for a reason which relates to their disability.
What is a disability?
A "disabled person" in law, is defined as someone with "a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day to day activities".
From 5th December 2005, “mental impairment” does not need to be clinically well-recognised to qualify as a disability for DDA purposes. So for example, “learning difficulties” are covered by the Act if they have a substantial and long term adverse effect on the individual’s ability to carry out normal day to day activities.
Individuals who have had a disability but have since recovered (“past disabilities”) are included. This is of particular benefit to those who have had a mental illness but find it difficult to get a job because of "groundless fears of a relapse". Progressive conditions are also covered.
Aids, HIV, Cancer and Multiple Sclerosis
From December 2005, the definition of disabled includes those with HIV / Aids, cancer or multiple sclerosis.
General rules
- it is unlawful to treat disabled people less favourably than other people for a reason related to their disability;
- you must make reasonable adjustments for disabled people, such as providing extra help or making changes to the way you provide services;
- you must make reasonable adjustments to the physical features of your work premises to overcome physical barriers to access.
Can discrimination be justified?
An employer’s conduct towards a disabled person cannot be treated as disability-related discrimination if it can be justified. The DDA 1995 Amendments, which began on 1st October 2004, state the limited circumstances when discrimination can be justified.
Direct discrimination of any kind, can never be justified if the disabled person is capable of doing the task at hand. Direct discrimination is treating the person differently, based solely on their disability.
Indirect discrimination can justified only where the reason for rejection is a ‘substantial’ one and is ‘clearly material to the circumstances’ (s3A of DDA 1995). So for example, a person who has severe back pain and is unable to crouch down might lawfully be rejected for a job as a carpet fitter.
For practical purposes the question of whether discrimination under the DDA 1995 is justified is generally likely to be less important than the question of whether an employer has fulfilled his duty to make reasonable adjustments to accommodate the needs of a disabled employee.
The Disability Discrimination Act provides requires you only to make “adjustments” which are "reasonable".
In circumstances where an employer is under a "duty to make reasonable adjustments" but fails to do so, he cannot try to justify less favourable treatment unless he can say that the less favourable treatment would still have been justified even if he had complied with the duty to make reasonable adjustments.
Reasonable adjustments include:
Employers are required to make 'reasonable adjustments' to jobs and workplaces for disabled workers. This is to ensure disabled people have equal opportunities in applying for and staying in work.
Reasonable adjustments include:
- adjustments to the workplace to improve access or layout;
- giving some of the disabled person’s duties to another person, for example employing a temp;
- transferring the disabled person to fill a vacancy;
- changing the working hours, for example flexi-time, job-share, starting later or finishing earlier;
- time off, for example for treatment, assessment, rehabilitation;
- training for disabled workers and their colleagues;
- getting new or adapting existing equipment, for example chairs, desks, computers, vehicles;
- modifying instructions or procedures, for example by providing written material in bigger text or in Braille;
- improving communication, for example providing a reader or interpreter, having visual as well as audible alarms;
- providing alternative work (this should be a last resort).
Advertisements
The DDA 1995 amendment Regulations, which had effect from 1st October 2005, made changes to the rules banning job advertisements which discriminate against disabled people.
It is unlawful to publish or cause to be published an advertisement inviting applications for “employment, promotion or transfer of employment" if it indicates that an application will be determined to any extent by reference to the applicant not being disabled or not having any particular disability. The advertisement will also be unlawful if it suggests the employer will be reluctant to make reasonable adjustments to accommodate an applicant's disability. An "advertisement" for this purpose includes every form of advertisement or notice, whether to the public or not.
The Act does not give individual job applicants the right to take legal action in respect of discriminatory advertisements. Instead, these may only be made by the Disability Rights Commission.
Small businesses watch out!
The 2003 amendment regulations ended the exemption for small businesses (those with less than 15 employees) from the DDA and brought police officers, fire-fighters, prison officers, barristers and partners in partnerships within the scope of the Act's employment provisions. So no business is exempt.
Relevant Net Lawman documents:
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