Info zone: Disability discrimination

The problem

Most hoteliers and resturanteurs know about the complex legislation covering discrimination against people with disabilities, and this now extends to both disabled staff and customers. However, many are nervous of falling foul of it because of the size of potential awards.

The law
The primary legislation in the UK concerning employment of disabled staff is the Disability Discrimination Act 1995 (DDA), which prohibits discrimination against a disabled person on the grounds of their disability or for reasons related to their disability. The most recent changes to the legislation, introduced last October, mean the following new provisions:

• Duties under the DDA apply to all employers - the exemption for small employers no longer applies.
• Discriminatory ads are prohibited.
• Direct and indirect discrimination on grounds of disability is prohibited.
• Harassment of a disabled person is prohibited.
• The DDA has been extended to cover not just employers but all service providers, including hoteliers, restaurateurs and publicans, who must ensure that their premises are not unreasonably difficult for the disabled to use.

Expert advice
Beware of thinking that disabled people are only those displaying orange badges in their cars. A disabled person is anyone who has a mental or physical impairment that has an adverse effect on their ability to carry out their day-to-day activities, and covers, for example, those whose mobility, sight, hearing, dexterity, co-ordination or memory is impaired.

All employers should keep the DDA in mind when recruiting, employing, promoting or dismissing an employee. At the recruitment stage you should ensure that adverts don't specify unnecessary or marginal job requirements, and be wary of blanket exclusions on applicants with certain medical conditions. For example, don't make a blanket stipulation that no one with an infectious disease can work in a food preparation area. Look at the disease in question and consider whether there's a health and safety problem or not.

Employers mustn't discriminate when making a job offer. If an applicant for the post of barman is turned down because of a severe facial disfigurement, despite having the same abilities as the applicant who is selected, then that would constitute unlawful discrimination.

Employers are obliged to make reasonable adjustments where a disabled person is placed at substantial disadvantage compared with the non-disabled. This duty may extend further than was previously thought - for instance, positive discrimination in favour of a disabled employee in terms of promotion to a position they would not otherwise have occupied. Employers should beware when, for example, a barmaid or waitress is unable to continue with her role but would be capable of filling a sedentary administrative post, in which case their duty may extend to offering them the new role over other equally capable candidates.

The duty to make reasonable adjustments can also extend to continuing to pay a disabled employee full sick pay even when their contractual entitlement to full pay has been exhausted.

Hoteliers and publicans must now make "reasonable adjustments" to the physical features of their premises to ensure they're not unreasonably difficult for disabled people to use.

Check list

• Be aware of the provisions of the DDA when advertising for and interviewing new staff.
• When contemplating dismissing an employee, consider whether the DDA applies. If an employee has been off sick, investigate the reasons and obtain a medical report - it's not only "stereotypical" disabled people who are protected by the legislation.
• Arrange an access audit by an experienced access auditor. This will highlight the barriers to disabled people and suggest solutions.
• Obtain a copy of the Disability Commission's Codes of Practice.
  Keep the DDA in mind even if you're a very small employer.

Beware!
It pays to keep up to date, as discrimination is a costly business with employees able to claim for injury to feelings as well as an unlimited compensatory award.

Contacts
Hilary Norris, Kimbells
Tel: 01908 668555
E-mail: hilary.norris@kimbells.co.uk
The Disability Rights Commission
Website: www.drc-gb.org

Source: Caterer & Hotelkeeper magazine, 074 April 2005