Disability discrimination

Contents
1. The meaning of 'disability' and 'disabled person' 2. Discrimination in the workplace 2.1. What constitutes discrimination? 2.2. Accommodating disability 2.3. Claims for discrimination

A person has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. A disabled person means a person who has a disability. As of 6th December 2005, under the Disability Discrimination Act, anyone diagnosed with HIV/AIDS, cancer or multiple sclerosis will be considered a disabled person. They do not need to exhibit symptoms to qualify for this status.

A disabled person is protected not only by the Disability Discrimination Act 1995, but reference can also be made to various regulations, codes of practice and guidance rules.

Before deciding whether there is discrimination on the grounds of a disability, the employment tribunal will have to decide whether a person is disabled and will look at four conditions:

1.) The impairment condition- Is there a physical or mental impairment? Examples of physical impairment include multiple sclerosis, cancer, blindness and arthritis. If your employee has an addiction to nicotine or any other substance they will not be regarded as having a disability for the purposes of the Act.

2.) The adverse effect condition- The tribunal must ascertain whether the impairment identified at stage 1 adversely affects one's ability to carry out normal day-to-day activities. These include, for example, mobility, ability to lift, carry or otherwise move everyday objects, speech, hearing or eyesight.

3.) The substantial condition- The condition is more than minor or trivial. A number of factors are taken into account including the time it takes to carry out an activity and the way in which an activity is carried out.

4.) The long term condition- An impairment is said to be long term if it has lasted at least twelve months.

Where measures are taken to treat or correct an impairment that would be likely to have a substantial adverse effect on the ability of a person to carry out normal day-to-day activities, that impairment is still treated as amounting to a disability. For example epilepsy, which although controlled by medication, may still amount to a disability.

If your employee is disabled, it is unlawful for you to discriminate against that employee in the arrangements that you make for the purpose of determining to whom you should offer the employment. The same applies when you consider the terms in which you offer employment or by refusing to offer, or deliberately not offering employment. It is also unlawful for you to discriminate in the terms of employment that you afford a particular employee, or when you consider promotion, transfer, training or granting other benefits.

In addition, it is unlawful for you to discriminate against an employee who is not disabled but is a carer of, or otherwise associated with, a disabled person. In other words, the Disability Discrimination Act has been interpreted to protect not only disabled persons but can also protect those who are discriminated against by reason of their association with a disabled person.

There are three forms that disability discrimination can take:

1. Failure to comply with the duty to make reasonable adjustments to ensure that an employee is not put at a substantial disadvantage by employment arrangements or any physical feature of the workplace

2. Treating an employee less favourably for a reason related to the disability (disability-related discrimination). An example of this would be where a large employer requires an office assistant to collect and distribute printed materials from a bank of numbered printers and has a policy of only employing people who can read numbers. This would place people with learning difficulties who are unable to recognise numbers, but could otherwise do the job, at a particular disadvantage when compared to non-disabled people.

3. Treating an employee less favourably on the grounds of their disability (direct disability discrimination). An example of this would be to would be to have a ‘blanket ban’ on applicants with HIV or who suffer from a mental illness. You can also subject an employee to direct disability discrimination if you treat them less favourably on the basis that they are associated with people who have a disability, even where the employee is not disabled.

The main difference between direct and disability-related discrimination is that you can defend a claim of disability-related discrimination if the treatment can be justified. There can be no justification for direct discrimination. In disability-related discrimination, the treatment will only be justified if the reason for the treatment is both ‘material and substantial’ and you have complied with the duty to make reasonable adjustments. In the example given above, the employer could make a reasonable adjustment by colour coding the printers. The disabled person is able to recognise colours and would thus be able to carry out the required tasks.

In order to justify less favourable behaviour, you must show that the reason is related to the individual circumstances in question and must not just be a trivial or minor matter.

You are required to take positive steps in certain circumstances to accommodate your employee's requirements if he or she is in any way disabled. You should make reasonable adjustments to accommodate the disability.

Examples of the sort of adjustments you should consider, in consultation with your employee, are set out in the Disability Discrimination Act and include:

• Allocating some of your employee’s work to someone else
• Transferring the employee to another post or another place of work
• Making adjustments to the buildings where the employee works
• Being flexible about the employee’s hours – allowing the employee to have different core working hours and to be away from the office for assessment, treatment or rehabilitation
• Providing training
• Providing modified equipment
• Making instructions and manuals more accessible
• Providing a reader or interpreter

As mentioned previously, your duty is to take such steps as are reasonable in all the circumstances. Therefore, you will take into account whether adjustments are possible, the financial implications and whether there is financial or other assistance available to you in order to take such steps.

The employment tribunal has exclusive jurisdiction to consider claims of disability discrimination. A complaint must be presented within three months from the date of the act complained of, unless the tribunal considers that it is fair and reasonable in the circumstances to hear the claim outside that period.

As explained in the section on sex and race discrimination, there is a formal questionnaire procedure available and the same principles apply.

Where your employee succeeds with a claim for discrimination, a court shall take the following steps, as it considers just as equitable:

• making a declaration as to you and your employee's rights or other person in relation to the matters in which the complaint related;
• ordering you or any other person to pay compensation to the employee;
• recommending that you or any person take steps to reduce any adverse effect that your action may have caused.

Compensation may be awarded for injury to feeling, as with discrimination on grounds of sex or race.

The tribunal may make an order for compensation or recommend that the employee be offered the employment, where such employment has been refused. If you refuse to employ the person, the tribunal will then award compensation or increase an existing order for compensation.

For more detailed information, please look at the official Advisory Conciliation and Arbitration Service (ACAS) site .