Disability discrimination

The Disability Discrimination Act 1995 prohibits various forms of disability discrimination, as explained further below.

Defining disability

In order to be protected by the Act, however, a person has to fall within its complex definition of disability. The employment tribunals that adjudicate on disability discrimination claims will take into account official guidance that the Government has published on the definition of disability (useful information).Employers who are in any doubt as to whether a particular individual meets the definition may find it useful to read this guidance or to seek advice from their Association.

In summary, a person has a disability if he or she has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. It is important to note that the definition covers most mental impairments except those listed below and so, for example, dyslexia can constitute a disability if it has a substantial and long term adverse effect on a person's ability to carry out normal day to day activities which could include examinations and tests.

As an exception to the general rule, people with certain conditions automatically qualify as disabled, regardless of the effect their condition has on their activities. These are:

• people who have been certified as blind or partially sighted by a consultant ophthalmologist, or who are registered as such with their local authority;
• people with cancer;
• people who are infected with HIV; and
• people who have multiple sclerosis.

Excluded mental conditions

Certain mental conditions are expressly excluded from the definition of disability. Dependence on alcohol or any other substance does not count as a disability, unless it has resulted from taking drugs that were originally medically prescribed. Illness or disease that results from drug or alcohol dependency, such as liver or heart disease, may, however, qualify as a disability. Certain personality disorders are also excluded from the definition of disability. These are:

• a tendency to set fires;
• a tendency to steal;
• a tendency to physical or sexual abuse of others;
• exhibitionism; and
• voyeurism.

Medical treatment and aids

It is essential to note that, when assessing the effect that a person’s impairment has, any medical treatment that he or she is receiving, or any aid or prosthesis that he or she is using, must be left out of account. For example, if a person is taking medicine and receiving counselling for clinical depression, the question is what effect the illness would have on the individual if those steps were not being taken. The only exception to this principle relates to people with sight impairments: the extent to which a person’s sight could be corrected by the use of glasses or contact lenses is taken into account. In addition, if treatment of a person’s condition has led to a permanent improvement, as in a case where a mobility impairment has been corrected through surgery, that treatment can also be taken into account.

Normal day-to-day activities

In order to be viewed as affecting a person’s normal day-to-day activities, the impairment must affect the individual in one or more of these respects:

• mobility;
• manual dexterity;
• physical coordination;
• continence;
• ability to lift, carry or otherwise move everyday objects;
• speech, hearing or eyesight;
• memory or ability to concentrate, learn or understand;
• ability to perceive the risk of physical danger.

Government guidance states that, in deciding whether an activity is a normal day-to-day activity, ‘account should be taken of how far it is normal for most people and carried out by most people on a daily or frequent and fairly regular basis’. So, an impairment that only affects a person’s ability to carry out activities of a specialised kind, such as playing a musical instrument or taking part in a particular hobby may not amount to a disability.

It is important to bear in mind that it is the effect a person’s impairment has on his or her day-to-day activities that is relevant, not the effect that it has on the individual’s ability to do his or her job. For example, a warehouseman who has a heart condition that makes it impossible for him to continue doing the heavy manual lifting that is part of his job may not be disabled if his illness does not substantially affect his ability to move everyday objects. On the other hand, it is permissible to take into account the effect a person’s impairment has on his or her day-to-day activities at work as well as at home, even if the work environment is unusual.

Assessing impairment

A person’s impairment is viewed as having a ‘substantial’ effect on his or her activities if the effect is more than merely minor or trivial. Progressive conditions are viewed as disabilities as soon as they have any effect on an individual’s activities, if the likely prognosis is that they will eventually have a substantial effect. (As noted above, people who have cancer, HIV or multiple sclerosis automatically qualify as disabled.) A severe disfigurement is also viewed as having a substantial effect on a person’s activities, unless it consists of body piercing or a tattoo that has not been removed.

In order to be viewed as ‘long term’, a person’s impairment must have already affected his or her activities for at least 12 months, or be likely to do so. If an individual has a condition that is subject to periods of remission or improvement, so that it sometimes has a substantial effect but at other times does not – as may be the case, for example, with arthritis – the impairment is treated as continuing to have a substantial effect during the periods of improvement.

Guidance on substantial effect

Government guidance on the definition of disability gives extensive examples on when an impairment should, or should not, be viewed as having a substantial effect on a person’s day-to-day activities. For example, the guidance says that it would be reasonable to regard an impairment as having a substantial adverse effect on a person’s mobility if it meant that he or she was unable to walk other than at a slow pace or with unsteady or jerky movements, or had difficulty going up and down stairs. It would not, on the other hand, be reasonable to regard the effect as substantial if the person had difficulty walking a distance of 1.5 kilometres unaided without discomfort or having to stop.

Direct disability discrimination

There are three forms of disability discrimination. The first is direct disability discrimination. This is where an employer, on the ground of a disabled person’s disability, treats that person less favourably than it treats, or would treat, a person not having that particular disability whose relevant circumstances, including his or her abilities, are the same as, or not materially different from, those of the disabled person. So, for example, it would be unlawful for an employer to refuse to recruit a job applicant who is as well qualified as other applicants for the post, in terms of competency and employment history, but who has epilepsy, if the ground for the employer’s decision is that the person has epilepsy.

Reason relating to disability

The second form of disability discrimination arises where an employer treats a disabled person unfavourably not on the ground of the person’s disability itself, but for a reason relating to it.

This form of disability discrimination requires firstly that the disabled person shows that the employer's reason for the treatment was connected with the disability. The employer will only be liable if it knew or ought to have known that the person was disabled. Secondly the disabled person must also show that the employer has treated the disabled person less favourably than the employer treats others to whom that reason does not or would not apply. The appropriate comparators are those without the disability. Thirdly even in cases where it is established that the employer has discriminated by treating a disabled person unfavourably for a reason which relates to the person's disability, the employer can justify the discrimination and so avoid liability.

Justification

The test of justification in this context is different to that in cases of indirect discrimination and is much easier to meet. All that the employer need establish is that it had a reason for treating the individual in the way that it did, and that the reason was relevant to the circumstances of the particular case and not merely minor or trivial. In the example given above, therefore, the employer would need to show that the reason it dismissed the employee was because his or her absence was having an impact on the business that was more than minor or trivial. It is very important to note, however, that before an employer can establish justification, it must also show that it has met its duty to make reasonable adjustments, see below.

Code of Practice

The Disability Rights Commission has published a Code of Practice giving guidance on avoiding disability discrimination. This Code must be taken into account by employment tribunals when they are considering a disability discrimination claim, if it is relevant to the issue they are considering, and it contains a section that specifically deals with the issue of justification.

Duty to make reasonable adjustments

The third form of disability discrimination is where the employer fails to comply with the duty to make reasonable adjustments. The duty on employers to make reasonable adjustments to accommodate disabled people who are placed at a substantial disadvantage is, in practice, the most important aspect of the disability discrimination legislation. If an employer fails to meet this duty, that in itself amounts to an act of disability discrimination. Furthermore, an employer cannot justify treating a person unfavourably for a reason relating to his or her disability unless it has first met its duty to take steps to reduce or prevent the disadvantage.

A company may owe this duty to its existing employees, whether they were disabled when they were recruited or have become disabled since they were employed. An employer may also owe the duty to a disabled person who has applied to it for a job, or has told the employer that he or she is considering applying for a job. The duty arises, however, only where the employer’s policies or practices, or the physical features of its premises, put the disabled person at a disadvantage compared with non-disabled people. Furthermore, the disadvantage caused must be more than minor or trivial.

An employer is under no duty to make adjustments for an individual if it neither knows, nor could reasonably be expected to know, that the individual is disabled and is likely to be put under a disadvantage by the employer’s current practices or premises. An employer that takes the appropriate steps may meet its duty to make reasonable adjustments, even if it is not aware that the individual is disabled.

If an employer does have information about a worker’s disability, it should ensure that it complies with the requirements of the data protection legislation (data protection) and the related Code of Practice  (useful information). This will involve ensuring that the information is restricted to those who need to know it in order to meet the employer’s legal obligations. So, for example, it may be sufficient for those involved in implementing a reasonable adjustment for a disabled employee to know that the adjustment needs to be made, without being given details of the employee’s disability.

Potential adjustments

If an employer has not met its duty to an individual to make reasonable adjustments, it will not normally be able to justify treating the individual unfavourably for a reason relating to his or her disability. The only exception to this is if the employer would have been justified in treating the individual unfavourably, even if it had complied with its duty. Take, for example, an employer that fails to make a reasonable adjustment to the recruitment process to accommodate a disabled applicant, and then rejects the applicant for a reason relating to his or her disability. The employer can justify rejecting the applicant if it can show that he or she would not have met the requirements for the job even if reasonable adjustments had been made.

The legislation lists some of the potential steps that an employer might need to take in relation to a disabled person to comply with its duty to make reasonable adjustments. These are shown in the following box.

Reasonable adjustments

It may not be necessary for an employer to take any of these steps. The duty is to take whatever steps are reasonable in the circumstances of the particular case. Many different factors may therefore need to be taken into account when assessing what adjustments, if any, are reasonable. Companies may wish to obtain advice on this issue from their Association.

The legislation says that the following factors in particular can be taken into account when considering what adjustments would be reasonable:

Health and safety requirements

It is worth noting that the Workplace (Health, Safety and Welfare) Regulations 1992 expressly require employers to equip rest rooms and rest areas with seating that is adequate for the number of disabled people they employ and suitable for them. Further, the Regulations stipulate that parts of the workplace used by disabled people must be organised in a way that takes their needs into account, particularly in relation to doors, passageways, stairs, showers, washbasins, lavatories and workstations.

Adjustments for agency workers

There are special rules on how the duty to make adjustments is split between the employer of an agency worker and the company to which the worker is sent to work, referred to here as the ‘host company’.

If the contract worker is likely to be placed at a similar disadvantage by the arrangements or premises of all or most of the companies where he or she works, then it is the worker’s employer who is responsible for considering what reasonable adjustments should be made. The host company is not responsible for taking any step that the worker’s employer should be taking. On the other hand, it is the host company’s responsibility to consider adjustments that arise from any aspects of its arrangements or premises that are different from the other companies where the worker works.

Whether it would be reasonable for a host company to make an adjustment depends on all the usual factors, see above. These are likely to include the length of time for which the disabled person will be working for the company.

Government assistance

When a company is assessing how far it would be reasonable for it to go in making adjustments, it should consider the Government assistance that is available to help employers accommodate disabled employees and job applicants.

Jobcentre Plus has Disability Employment Advisers, contactable through Jobcentres, who provide advice on employing disabled people. They can also put employers in touch with specialist advisers on the Access to Work scheme, which can help with the extra employment costs of employing a disabled person. The scheme could, for example, contribute towards the cost of a communicator at a job interview for a person with a hearing impairment, an adapted keyboard for a person with impaired manual function or alterations to a lift to accommodate a wheelchair user.

There is also a Job Introduction Scheme, which provides financial help for employers to take on a disabled person for a trial period, and a Workstep Scheme, which enable employers to give work opportunities to more severely disabled people.