Disabled Persons

§  With the repeal of the largely ineffective provisions of the Disabled Persons (Employment) Acts 1944 and 1958, legislation relating to the employment of (and discrimination against) disabled persons is now to be found in the Disability Discrimination Act 1995, which came into force on 2 December 1996. Employers no longer need employ a quota or percentage of registered disabled persons; nor need they reserve 'designated employments' to be filled only by such persons.

Note

Under the Disability Rights Commission Act 1999, the Disability Rights Commission (DRC) has powers akin to those enjoyed by the EOC and CRE (including the right to issue non-discrimination notices, to prepare and issue codes of practice, and to advise and represent complainants in court and tribunal proceedings.

§  For the time being at least, the 1995 Act does not apply to firms or businesses that have fewer than 15 people on the payroll (ibid. section 7(1), as amended). However, that exemption is to be removed once the Government has implemented EU Council Directive 2000/78/EC of 27 November 2000 'establishing a general framework for equal treatment in employment and occupation'. The exemption is to be removed on 1 October 2004, once the draft Disability Discrimination Act 1995 (Amendment) Regulations 2003 come into force. A copy of those draft regulations (published for consultation purposes only) may be accessed and downloaded from website www.dti.gov.uk/er/equality/disabilityregs.pdf.

Discrimination in recruitment

§  It is unlawful for an employer to discriminate against a disabled person (who is a job applicant):

a.     in the arrangements which he makes for the purpose of determining to whom he should offer employment;

b.    in the terms on which he offers that person employment; or

c.     by refusing to offer, or deliberately not offering, him employment (ibid. section 4(1)).

In short, it is unlawful for an employer to discriminate against a disabled person by taking steps to ensure that no disabled person is interviewed or short-listed for any job vacancy within his organisation (regardless of the applicant's qualifications or experience or evident suitability for the job in question), or (if he is prepared to employ disabled persons) by offering employment on terms less favourable than those offered to able-bodied candidates appointed to the same job.

§  This is not to say that it is unlawful per se for an employer to refuse to employ disabled persons. If a particular vacancy can only be filled by an able-bodied person, or is unsuitable for people with particular disabilities (perhaps because of the risks to health and safety associated with doing that job), or because the means of access or work equipment is incapable of being modified, the employer is not obliged to employ a disabled person to fill that job. If the rejected job applicant is unhappy with the employer's decision and decides to complain to an employment tribunal, it will be for the employer to show that the applicant's disability militated against his or her being offered employment in that job or that the workplace and associated equipment was incapable of being modified to accommodate the applicant.

Note

In Ridout v TC Group [1998] IRLR 628, a rejected job applicant suffering from photosensitive epilepsy claimed that she had been unlawfully discriminated against on the grounds of disability because her would-be employer had failed to make 'reasonable adjustments' (contrary to the 1995 Act) by interviewing her under fluorescent lights. The EAT held that a reasonable employer could not be expected to be aware of the problem unless she had taken the trouble to forewarn him of her sensitivity to such lights. In a not dissimilar case, that of Murphy v Sheffield Hallam University (1998) unreported, ET 2800489/98, an employer's failure to provide a sign language interpreter when interviewing a profoundly deaf job applicant was held to be unlawful, the more so as the applicant had made it clear, when completing his job application, that an interpreter would be needed. The employer was ordered to pay £2,500 in compensation.

§  Any advertisement for a job vacancy (whether published in the local or national press, or distributed internally, or posted in an employment agency or newsagent's window), that suggests that the employer who placed it will discriminate against disabled job applicants, or that demands patently unnecessary qualifications, or that uses words or phrases such as 'dynamic', 'energetic', 'alert', 'articulate', 'must have a pleasing appearance or personality' (and so on), may be introduced as evidence before an employment tribunal in support of a disabled job applicant's claim that he was unlawfully discriminated against by the employer who placed that advertisement (even if the advertisement in question appeared after the applicant approached the employer for employment) (ibid. section 11).

§  Furthermore, the newspaper proprietor or agency that knowingly publishes or publicises patently discriminatory advertisements is guilty of an offence under the 1995 Act unless he (or she) can show that he acted in reliance on a statement made by the employer that the advertisement was not unlawful under the 1995 Act and it was reasonable for him to rely on that statement. The penalty on summary conviction is a fine of up to £5,000. An employment agency or business convicted in these circumstances also risks forfeiting its operating licence (ibid. section 57).

Discrimination in employment

§  It is also unlawful for employers to discriminate against disabled persons in their employ by paying them lower wages or salaries (or associated payments) solely because they are disabled, or by offering other less favourable terms and conditions of employment. To refuse to promote or transfer a disabled employee, or to deny him (or her) opportunities for training for further advancement or to improve his skills, is likewise unlawful. An employee, who believes he has been discriminated against in this way, has every right to challenge his employer's actions before an employment tribunal, and is under no obligation to terminate his employment in order to do so. If his employer responds by victimising or disciplining the employee for having the effrontery to question his authority, that too is unlawful and will inevitably lead to a further hearing before a tribunal (ibid. sections 4(2) and 55).

Dismissing the disabled employee

§  It would be a foolhardy employer indeed who would dismiss a disabled employee (or select him or her for redundancy ahead of other more suitable candidates) because that employee is disabled, and for no other reason. If the purported reason had to do with the employee's conduct, capabilities, attendance record, lack of qualifications, or 'some other substantial reason' of a kind such as to justify the dismissal, it will be for the employer to satisfy an employment tribunal that he had acted reasonably and fairly in all the circumstances. In other words, an employer's decision to dismiss a disabled employee (or to select him for redundancy) is likely to be more closely scrutinised for evidence of unlawful discrimination than would be his decision to dismiss an able- bodied employee.

§  In Levez v Jennings (Harlow Pools) Ltd, unreported, EAT/812/94, the EAT held that the admittedly less favourable treatment of a disabled employee who has been dismissed because of his disability can be legally justified. The defence of 'justification' is available to employers under the 1995 Act (but not under either the Sex Discrimination Act 1975 or the Race Relations Act 1976). If an employer finds it impossible or impracticable to make reasonable adjustments to accommodate an employee's disability, he may be left with no choice but to dismiss. In deciding whether such a dismissal is fair or unfair, said the EAT, an employment tribunal will need to balance the interests of the employer against those of the employee.

§  In O'Neill v Symm & Co Ltd [1998] IRLR 233, the EAT held that an employer could not be held to have contravened the 1995 Act, when he dismissed a disabled employee with a poor attendance record, if he was unaware that she had been diagnosed as suffering from chronic fatigue syndrome (ME), no more than an employer could be held to have dismissed a woman for a reason connected with pregnancy if she had neglected to inform him that she was pregnant. Application forms inviting (understandably reluctant) job applicants to indicate whether they are disabled (or whether they are pregnant, breastfeeding or have recently given birth – a statutory requirement in some instances) should be accompanied by a statement explaining why that information is needed; although employers should be mindful of their duties (and the rights of employees) under the Data Protection Act 1998.

Complaints to an employment tribunal

§  A complaint of unlawful discrimination under section 8 of the 1995 Act must normally be presented to an employment tribunal within three months of the alleged unlawful act – although a complaint presented out of time may be considered, if the tribunal considers that it is just and equitable to do so (ibid. Schedule 3, Part I).

Note

In Clark v Novacold [1999] IRLR 318 (the first case to be heard by the Court of Appeal under the 1995 Act), it was held that a disabled person has no need to compare the treatment meted out to him (or her) with that meted out to an able-bodied person in similar circumstances. It is sufficient that his disability was the reason for his treatment. In short, a wheelchair-bound employee with a poor timekeeping record should not be treated less favourably than an employee who is never late for work. If the nature of his disability is the reason for his poor timekeeping, he has been treated less favourably inlaw. In such a case, it will be for the employer to satisfy a tribunal or court that his treatment of that employee had been justified.

Questions and replies

§  Any disabled employee (or job applicant), who believes that he (or she) has been unlawfully discriminated against in contravention of the Disability Discrimination Act 1995 (whether by his employer, a prospective employer, or whomever), may question the person concerned about the reasons for his or her apparently unlawful actions. If dissatisfied with that person's written explanation (if, indeed, an explanation is offered), the person aggrieved may admit that explanation (or failure to explain) as evidence in any ensuing proceedings before an employment tribunal (ibid. section 67).

§  The procedure is explained in the Disability Discrimination (Questions & Replies) Order 1996. The form prescribed for this purpose is Form DL56, copies of which (with accompanying explanatory notes) are available free of charge from the Disability Rights Commission (tel: 0870 600 5522) or may be downloaded from website www.drc.gov.uk/drc/informationandlegislation/page312.asp

Decision of tribunal and compensation

§  If an employment tribunal upholds a complaint of unlawful discrimination, it will make a declaration to that effect and will order the employer to pay compensation to the employee (which may include compensation for injury to feelings). The amount of the compensation will be calculated by applying the principles applicable to the calculation of damages in claims in tort or (in Scotland) in reparation for breach of statutory duty (ibid. section 8(3) and (4)).

§  The tribunal may also recommend that the employer take appropriate steps to remedy the situation that prompted the employee to pursue a complaint of unlawful discrimination. This means that the tribunal may recommend adjustments to the workplace, adaptation of, or modifications to, plant and equipment (including the means of access and egress), reallocating certain duties, and so on (see next paragraph). If the employer fails or refuses to comply with any such recommendation, the tribunal may increase the amount of compensation payable to the complainant (ibid. section 8).

Employer's duty to make adjustments

§  If an employer's job specifications, terms and conditions of employment (including working hours and start and finishing times) or his recruitment, promotion, training or transfer policies place disabled job applicants and employees at a substantial disadvantage relative to their more able-bodied colleagues, the employer is duty-bound to review those arrangements with a view to eliminating their discriminatory impact and accommodating the needs of those applicants and employees (ibid. section 6).

§  The same applies to any physical features of the employer's premises that could militate against the employment of disabled persons in those premises or prevent them carrying out their work efficiently. If the way furniture and equipment is arranged or designed inhibits access to a work bench or desk or makes it difficult for a disabled employee to carry out his (or her) duties, the employer will need to consider what adjustments are necessary to accommodate a disabled person. If some of the work a disabled person is employed to do is beyond his or her capabilities, the employer should consider the practicability of allocating those duties to another employee. He might also transfer the employee to another vacancy; alter his working hours; assign him to a different place of work; allow him to be absent during working hours for rehabilitation, assessment or treatment; and provide appropriate training. Instruction manuals and testing or assessment procedures may need to be modified. It may also be necessary to provide a reader or interpreter.

§  Clearly, it would not be viable for all employers to invest large sums of money altering their premises to accommodate the needs of disabled persons – bearing in mind that those alterations may not prove to be cost-effective and may not be wholly successful in removing the discriminatory impact on disabled employees. Whether or not an employer faced with a complaint of unlawful discrimination had done all that could reasonably be expected of him to accommodate the needs of disabled persons, in the light of his financial and other resources, will be a matter for a tribunal to decide (ibid. section 6(3) and (4)).

Note

In Kenny v Hampshire Constabulary [1999] IRLR 76 (EAT), the Employment Appeal Tribunal held that an employer's duty under the 1995 Act to make 'reasonable adjustments' to accommodate a disabled employee did not extend to providing a carer (or nominating another employee) to assist the employee when visiting the toilet. Nor would they extend, said the EAT, in the case of a wheelchair-bound employee, to providing transport to and from the employee's place of work.

Meaning of 'disability' and 'disabled person'

§  A person has a disability for the purposes of the 1995 Act if he (or she) has a physical or mental impairment that has a substantial and long- term effect on his ability to carry out normal day-to-day activities (ibid. section 1).

Note

Any person registered as disabled under the Disabled Persons (Employment) Acts 1944 and 1958 is deemed 'disabled' for the purposes of the 1995 Act and for an initial period of three years from 2 December 1996; after which, he or she will be deemed to have had a disability and hence to have been a disabled person during that period. The certificate of registration issued to a person under regulations made under section 6 of the Act of 1944 will be conclusive evidence of that disability (1995 Act, Schedule 1, para 7).

§  The expression 'mental impairment' includes an impairment resulting from or consisting of mental illness only if the illness is a clinically well- recognised illness. The effect of an impairment (physical or mental) is a long-term effect if it has lasted (or is likely to last) at least 12 months or it is likely to last for the rest of the life of the person affected. If an impairment ceases to have a substantial adverse affect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur (ibid. Schedule 1, paras 1 and 2).

§  An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following:

a.     mobility;

b.    manual dexterity;

c.     physical coordination;

d.    continence;

e.     ability to lift, carry or otherwise move everyday objects;

f.     speech, hearing or eyesight;

g.    memory or ability to concentrate, learn or understand;

h.     perception of the risk of physical danger.

A person who has a progressive condition (such as cancer, multiple sclerosis, or muscular dystrophy or infection by the human immuno- deficiency virus) will be taken to have an impairment that has a substantial adverse effect on his ability to carry out normal day-to-day activities if the condition is likely to result in his having such an impairment (ibid. Schedule 1).

Severe disfigurement, tattoos etc

§  A severe disfigurement is to be treated as a disability for the purposes of the 1995 Act unless it consists of either a tattoo (which has not been removed) or a piercing of the body for decorative or other non-medical purposes, including any object attached through the piercing for such purposes (ibid. Schedule 1, para 3 as modified by the Disability Discrimination (Meaning of Disability) Regulations 1996, referred to in the following paragraphs as 'the 1996 Regulations'.

Addictions

§  A job applicant or employee who is addicted to alcohol, nicotine or any other substances is not thereby a disabled person within the meaning of the 1995 Act – unless the addiction (in the case of an addiction to drugs) was originally the result of administration of medically prescribed drugs or other medical treatment (regulation 3 of the 1996 Regulations).

Other conditions not to be treated as impairments

§  Seasonal allergic rhinitis (otherwise known as hayfever) does not amount to a disability for the purposes of the 1995 Act unless the condition aggravates the effect of another condition. Nor are the following personality disorders to be treated as disabilities for those purposes:

a.     a tendency to set fires;

b.    a tendency to steal;

c.     a tendency to physical or sexual abuse of other persons;

d.    exhibitionism; and

e.     voyeurism.

Code of practice and guidance

§  The following (priced) publications are available from the Stationery Office (Tel: 0870 600 5522) or by email from books.orders@tso.co.uk. Free text versions may also be downloaded from website www.drc.gov.uk/drc/informationandlegislation/page312.asp

A Code of Practice for the Elimination of Discrimination in the Field of Employment Against Disabled Persons or Persons Who Have Had a Disability

Disability Discrimination Act 1995 Code of Practice: Rights of Access, Goods, Facilities, Services & Premises

Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability

Occupational pension schemes

§  Under section 16 of the 1995 Act, every occupational pension scheme will be taken to include 'a non-discrimination rule' relating to the terms on which persons become members of the scheme and members of the scheme are treated. The rule requires the trustees or managers of the scheme to refrain from any act or omission which, if done by an employer, would amount to unlawful discrimination under the 1995 Act.

Statements in director's reports

§  Under paragraph 9 of Schedule 7 to the Companies Act 1985, every company employing an average of more than 250 people per week (including part-timers, but excluding persons working wholly or mainly outside the UK) must include in the directors' report attached to its annual accounts a statement outlining the company's policy in relation to the employment, training, career development and promotion of registered disabled persons.

Chronically sick and disabled persons

§  Section 8A of the Chronically Sick and Disabled Persons Act 1970 (inserted by the Chronically Sick and Disabled Persons (Amendment) Act 1976) imposes a duty on the owners and developers of proposed new offices, shops, railway premises, factories, and other commercial and industrial premises, to consider the needs of disabled persons when designing the means of access to (and within) those premises, including the means of access to parking facilities, toilets, cloakrooms and washing facilities.

§  Although the owners or developers of premises intended for use as offices, shops, factories, workshops, etc cannot be prosecuted for failing to comply with their duties under the 1970 Act, there is nothing to prevent a disabled person denied ready access to such premises (or injured as a direct consequence of the owner or developer's breach of his statutory duty under the 1970 Act) from pursuing a civil action for damages. In any event, when granting planning permission for new offices, shops, factories, etc (or for the conversion of existing buildings), local authorities are duty-bound to draw the attention of the person to whom planning permission has been granted to the relevant provisions of the 1970 Act and to the Code of Practice for Access for the Disabled to Buildings (per section 76, Town & Country Planning Act 1990).

Useful publications

§  The following leaflets are available free from the Disability Rights Commission on 0870 600 5522. Most of these may also be downloaded from website www.drc.gov.uk/drc/informationandlegislation/page312.asp, All are available in alternative formats (eg, Braille and audio cassette).

A Brief Guide to the Disability Discrimination Act (DL 40)
The Disability Discrimination Act 1995: The Questions Procedure (DL56)
The Disability Discrimination Act 1995: Some Useful Suggestions (DL200)
The Disability Discrimination Act 1995: What Employers Need to Know (DL170)
Definition of Disability (DL 60)
Employment (DL 70) Access to Goods, Facilities and Services (DL 80) Letting or Selling Land or Property (DL 90) Definition of Disability (DX1)
Education (DL 100)
Public Transport Vehicles (DL 110)

A complete list of free and priced DRC publications is available from the same website.