Disability Discrimination from October 2004

From 1 October 2004, there are key changes being made to the Disability Discrimination Act 1995 (‘the DDA’), which will have a significant effect on businesses in the South West, many of which until now have been exempt from the provisions of the DDA until now. These changes are as follows:

Small Firm Exemption Removed

Prior to 1 October, any employer with less than 15 employees has not had to be concerned about the provisions of the DDA. This is no longer the case.

All employers should now ensure that they comply with the provisions of the DDA. In summary this means:

· Employers must not discriminate against a disabled person:
(i) in arrangements made for the purpose of determining who is offered employment;
(ii) in the terms of which employment is offered; or
(iii) by refusing to offer employment.

· Employers must not discriminate against a disabled employee:
(i) in the terms of employment that they have;
(ii) in opportunities afforded for promotion/transfers/training or receiving any other benefit;
(iii) by dismissing them, or subjecting them to any other detriment.
· Employers must not subject to harassment a disabled person whom he employs or a disabled person who has applied to him for employment.
· The Employer is required to take all steps that are reasonable in the circumstances to prevent a disabled person being placed at a substantial disadvantage compared to others. This is the duty to make reasonable adjustments.

Removal of Justification for an Employer’s Failure to make Reasonable Adjustments

Prior to 1 October, an Employer could justify their failure to make reasonable adjustments if the failure was ‘material to the circumstances of the particular case and substantial’. Examples of this might have been if the Employee refused to co-operate with a proposed adjustment or refused to follow medical evidence on how to manage his condition at work.

From 1 October, there is to be no justification for failing to make reasonable adjustments. The main issue will therefore be what adjustments are reasonable in the circumstances for the Employer to do? This depends greatly on the circumstances of each particular case.

Examples of adjustments are: making structural or physical adjustments to premises; allocating some of the disabled person’s duties to another person; altering the person’s working hours; allowing the person to be absent for re-habilitation, assessment or treatment; giving the person additional training; acquiring or modifying equipment; providing supervision etc. This is by no means exhaustive and is for illustration only.

Removal of Justification for Direct Discrimination

Similarly, prior to October, direct discrimination could be justified if the failure was ‘material to the circumstances of the particular case and substantial’. This was in practice very difficult to prove. An example would have been where a person with psoriasis (a skin condition) is rejected for a job modelling cosmetics on a part of the body that in his case is severely disfigured by the condition.

Direct discrimination is where, on the ground of the disabled person's disability, an Employer treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.

From October, no direct discrimination can be justified.

Formal Definition of Harassment

From October, the DDA will include a prohibition of harassment of a disabled employee while at work. Such behaviour has long been considered to be ‘less favourable treatment’ in any event, but is now a separate cause of action. This means that an Employee could bring a case even if they could not point to any occasion when they were treated ‘less favourably’.

Harassment is defined as where one person engages in unwanted conduct which has the purpose or effect of: (a) violating the disabled person's dignity, or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Conduct is said to be harassment if in the circumstances it should reasonably be considered as having that effect. The perception of the disabled person is particularly relevant to whether behaviour is deemed to be harassment.

Extension to previously excluded sectors

The law is now to cover police, firefighters, prison officers, barristers, those employed on ships, those seeking to become members of trade unions and those wishing to enter partnerships.

Please note that from October, the requirement to make premises DDA compliant also comes in to effect. This is beyond the remit of this briefing note, but we would be happy to advise on this on request.

We will also be holding two workshops on 16 and 23 September 2004 considering the above and the recent case law on ‘reasonable adjustments’. Do contact us if you would like to attend.

For further information on any of the above, please contact
martin.follett@follettstock.co.uk or verity.slater@follettstock.co.uk