Disability discrimination

21 November 2005
Disability discrimination

This article first appeared on www.personneltoday.com, the website of Personnel Today magazine.

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Makbool Javaid and Dennis Taylor advise on the Disability Discrimination Act

The Disability Discrimination Act (DDA) 1995 (Amendment) Regulations 2003 came into force on 1 October 2004, extending the scope of the act.

Which categories of employment come are covered by the DDA?

The following categories of employment now come within the scope of the DDA: employers with fewer than 15 employees, the police, partnerships, barristers and advocates and their pupils, firefighters, prison officers, employment on board ships, aircraft or hovercraft, members of the Ministry of Defence Police and the fire fighting service, the British Transport Police, the Royal Parks Constabulary and the United Kingdom Atomic Energy Authority Constabulary. However, members of the Armed Forces continue to be excluded.

While the amendments have brought police officers within the scope of the employment provisions of the DDA 1995 for the first time, they also made another important change. The chief officer of Police or the Police Authority (or the chief constable in the case of Scottish Police forces) is now liable for acts of unlawful discrimination (including failures to make reasonable adjustments) or harassment against individual police officers in relation to their employment.

The legislation deems police officers and police cadets to be employees for the purposes of the employment provisions of the DDA 1995. One of the reasons is to ensure that a chief officer of police will be liable for the discriminatory acts of one police officer committed against another.

What is direct disability discrimination?

There are now two types of potential direct discrimination claims under the DDA: a ‘direct disability discrimination' claim or a ‘direct disability-related' discrimination' claim.

Under previous DDA 1995 legislation, the first part of the old definition of disability discrimination made it possible to justify discrimination against a person purely because they were disabled. In other words, while there may have been nothing preventing the individual from doing the job, the employer was still given the opportunity to justify discrimination against the person on the grounds of their disability.

However, the Equal Treatment Framework Directive does not allow justification for discrimination against disabled people purely because they are disabled and while showing justification for such treatment had always been an almost impossible task for employers under the previous provisions, the amended DDA 1995 now makes it explicit that direct discrimination in such circumstances cannot be justified.

The amendment now means that ‘direct disability' discrimination occurs where a disabled person, with the same abilities as a non-disabled person, is treated less favourably that a non-disabled person was, or would have been, treated in the same or similar circumstances, i.e. the disabled person is treated less favourably, purely because they are disabled and for no other reason. In these circumstances, ‘direct disability' discrimination can never be justified.

Employers also discriminate against disabled employees if the employer fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person. No justification defence is available for failing to make a reasonable adjustment.

What is direct disability-related discrimination?

However, unlike ‘direct disability discrimination' which can never be justified, ‘direct disability-related' discrimination can be justified, as long as there is a material and substantial reason for doing so.

When is disability-related discrimination justified?

Justification is only permissible in ‘direct disability-related' discrimination cases if, the reason for the treatment is both material to the circumstances of the particular case and substantial. ‘Material' means that there must be a strong connection between the reason given for the treatment and the circumstances of the particular case. ‘Substantial' means, in the context of justification, that the reason must carry real weight and be of substance.

But the existence of a material and substantial reason for disability-related less favourable treatment is not enough to justify that treatment. As the Disability Rights Commission revised code points out, if there is a material and substantial reason relating to disability which is placing a disabled person at a substantial disadvantage, the employer is under a duty to make reasonable adjustments in relation to the disabled person to remove the provision, criterion or practice or any physical feature of premises which is causing the problem.

Justification for disability-related discrimination will therefore only succeed where the employer can show that it was not reasonable or practical to make those adjustments.

How does the DDA define harassment?

The DDA 1995 did not previously specify harassment as an unlawful act. But now it makes harassment for a reason relating to a disabled person's disability an unlawful act in its own right. The definition of harassment has two parts:

  • A person will have been the victim of harassment where, for a reason which relates to that disabled person's disability, they have been subjected to unwanted conduct which has the purpose (intentionally) or ‘effect' (unintentionally) of violating the disabled person's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them

  • The conduct will only have the ‘effect' of violating the disabled person's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment, if, and only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect.

The second part of the definition comes into play where an ‘intention' to harass cannot be shown, i.e. any offence or damage caused was purely unintentional and the conduct was not intended to offend, but nevertheless, it had the ‘effect' of doing so.

In such cases, tribunals will be required to take into account all relevant circumstances of the situation -- in particular, the perception of the person alleging harassment, when deciding whether it is reasonable to consider that the conduct amounted to a violation of dignity or the creation of an offensive working environment etc. In such cases, a ‘reasonableness' factor will be applied and while the victim may object, a particularly oversensitive person who unreasonably takes offence at a perfectly innocent comment may not be judged as having been harassed. For example, where, when talking to a disabled person about a difficult task, a colleague says ‘those requirements must have created a real handicap for you'.

What is indirect discrimination?

In broad terms, indirect discrimination occurs where a specific provision is applied equally to everyone, but in reality it substantially disadvantages people from one particular category and an individual suffers a disadvantage because the provision is imposed.

Where the disabled person concerned is placed at a substantial disadvantage, in comparison with persons who are not disabled, by a provision, criterion or practice, or, any physical feature of premises occupied by the employer, the employer must make reasonable adjustments, i.e. modify (or even disapply) any provision, criterion or practice or physical feature of the premises, which causes more than a minor or trivial disadvantage.

However, as with the current ‘reasonable adjustment' provisions, the duty is only imposed if the employer knows, or could reasonably be expected to know, the nature of the substantial disadvantage being experienced by the disabled person. For example, if it were reasonable to do so, an employer might have to vary a rule under which all employees have to work from 09.00 to 17.00, to allow a disabled employee to work flexible hours to take time off work during that period for kidney dialysis.

It is no longer possible to justify a failure to make a reasonable adjustment, where the duty applies. The rules do not allow for any such defence.

How do employers determine whether or not they need to make ‘reasonable adjustments'?

In determining whether employers should make reasonable adjustments, the following points are considered:

  • Whether taking the step would prevent the effect

  • How practical it is to take the step

  • The financial and other costs which would be incurred by taking the step and the extent to which taking it would disrupt any activities

  • Financial and other resources

  • The availability of financial or other assistance

  • The nature of activities and the size of the undertaking.

The adjustment duty has to apply at all stages of the employment process in relation to:

  • arrangements for determining to whom employment should be offered

  • terms, conditions or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded

  • arrangements or procedures leading to dismissal or subjection to any other detriment.

Additions have been made to the DDA 1995 list of examples of adjustments that employers might make. These include altering hours of training; assigning the individual to a different place of training; allowing absence during training hours for rehabilitation, assessment or treatment; and providing mentoring.

What is the meaning of ‘dismissal'?

The term dismissal includes the termination of a limited-term contract without renewal under the same terms; constructive dismissal; and termination by the employer, with or without notice.

What are the rules regarding instructions and pressure to discriminate?

It is unlawful for a person who has authority or influence over another person to instruct them, or put pressure on them, to act unlawfully. This could arise, for example, where a manager instructs, or pressurises, an HR specialist not to include a disabled employee in a list of potential internal candidates for a job in circumstances in which this would be unlawful.

What about post-employment discrimination?

It is unlawful for an organisation, or other relevant party covered by the DDA 1995, to discriminate against, or harass, an individual after the employment relationship, or any other working relationship, has come to an end. However, for protection to apply, two essential criteria must be met:

  • During the relationship between a disabled person and the organisation (or other relevant party), an act which would be regarded as unlawful under the DDA 1995 occurred

  • The discrimination or harassment arises out of, and is closely connected to, the previous relationship.

This means, for example, that it will be unlawful for a former employee who is disabled to be discriminated against at an internal appeal hearing following their dismissal, or in relation to the provision of references, as a retaliatory measure against the individual because they made a disability discrimination claim against the employer, while employed.

There is also a duty to make reasonable adjustments in relation to provisions, criteria or practices, or to premises, after a relationship has ended in circumstances where a disabled person suffers a substantial disadvantage. For example, it might be reasonable for the employer to provide a sign language interpreter at an internal appeal hearing where a former employee who is deaf was appealing against a dismissal that had already taken effect.

What are the rules regarding advertisements?

It is unlawful for a person to publish an advertisement, which invites applications for and indicates that an application will or may be determined to any extent by reference to the applicant not having any disability or any reluctance to comply with a duty to make reasonable adjustments.

It is not unlawful to apply a restriction in an advert where this is an absolute necessity for a job, such as health and safety reasons, such as someone applying for the position of train driver needing a specific level of eyesight.

Makbool Javaid is an employment partner and Dennis Taylor is the head of the diversity consultancy at DLA Piper Rudnick Gray Carywww.dlapiper.com

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