Employment Law Explained

Discrimination on Grounds of Disability

The Disability Discrimination Act 1995 gives protection to employees who are classed as disabled under the Act and who suffer discrimination as a result of their disability. From 1st October 2004, DDA protection has been extended to partners (and prospective partners) of firms, to barristers and to pupil barristers.

Any employer (employing any number of employees) is now subject to the Disability Discrimination Act). From October 2004, the Act will apply to all employers, not just those with over 15 members of staff.

For the purpose of the Act, disability is defined as a physical or mental impairment, which has more than a trivial effect on an employee's ability to carry out normal day to day activities. To qualify for protection, the impairment must have lasted (or be expected to last) for at least 12 months.

Note: the illness is looked at without the effect of any medication.

There are (as of 1 October 2004) new definitions of 'discrimination' under the Act - Direct Discrimination (ie. less favourable treatment on grounds of disability - which CANNOT be justified) and disability-related discrimination (less favourable treatment for a reason relating to disability, which CAN be justified).

In addition, the Act also places a duty on the employer to make reasonable adjustments to the work place to enable the disabled employee to perform his/her duties. Case law has established that there is now a positive duty on the part of an employer to make reasonable adjustments including applicant’s for other jobs.

It is a defence if the employer can establish that the less favourable treatment is 'justified' (meaning the employer has a good reason to act in that way which outweighs the employee's right not to be treated less favourably than able-bodied employees). The technical phrase is that justification must be 'material and substantial'. It is a hard test to satisfy and should not be seen as a get out clause for unscrupulous employers. This defence of justification does not, however, absolve the employer for considering alternatives or adjustment in the work place or working practice to allow the disabled employee to perform his/her duties. The justification defence is (as of 1 October 2004) abolished for failures to make reasonable adjustments, so if a reasonable adjustment is not made, the employer is liable.

Harassment.
Where for a reason which relates to the disabled person’s disability, he/she engages in unwanted conduct which has the effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment to him/her.

Victimisation
This occurs when a person is treated less favourably than others because he or she has taken action under or by reference to the Disability Discrimination Act.