How far should the Disability Discrimination Act go?

A recent Glasgow employment tribunal ruled that baldness was not a disability. James Campbell, a 61-year-old retired teacher, argued that his baldness was an impairment which had a "substantial and long-term adverse effect" on his ability to do his job as a result of alleged teasing and bullying by the pupils he taught.

To the relief of employers, the tribunal disagreed. The employment judge noted that, "If baldness was to be regarded as an impairment then perhaps a physical feature such as a big nose or being smaller than average height might be regarded as an impairment".

All very sensible, most will conclude. However, the case does raise some interesting questions about how far the scope of protection under the Disability Discrimination Act 1995 (DDA) should go in protecting employers and employees.

Definition

The definition of disability has been significantly extended since the Act first came into force. While the broad intentions and effect of the legislation are to be applauded, the extent of employers' obligations to comply with the DDA, in particular in identifying disabilities and making reasonable adjustments, should not be underestimated.

The lack of clarity that remains in determining whether an individual has a disability for DDA purposes is unsatisfactory.

The most recent amendments to the DDA extended the definition of disability to cover HIV, cancer and multiple sclerosis as soon as the illness is diagnosed.

However, it also removed the requirement that the mental impairment be "clinically well recognised" has led to greater uncertainty about the extent to which conditions such as stress or anxiety might fall within the scope of the DDA.

Effect not condition

Case law and the government's 2006 DDA guidance have also confirmed that it is the effects of impairments that need to be considered, rather than the underlying conditions.

Importantly, the guidance has given greater scope for individuals to argue that they are unable to modify their behaviour to prevent or reduce the effects of an impairment on day-to-day activities, on the grounds that doing so would cause pain, fatigue or a loss of energy and motivation.

This could be particularly relevant in the case of impairments suffered as a result of obesity or substance abuse, for example, where there is an element of personal responsibility.

Sensible limits

The employment judge in the Campbell case rightly identified the sensible limits of the meaning of 'physical impairment' for DDA purposes. However, it remains likely that we will see increasing numbers of controversial disability discrimination cases being brought by individuals seeking to test the boundaries of protection under the DDA.

While common sense prevailed in the Campbell case, the government needs to reconsider whether the DDA and related guidance provide adequate clarification - and limitations - on the meaning of disability, and also whether a greater emphasis should be placed on individual rather than corporate responsibility in certain cases.

Key points

• Certain conditions are specified as being "deemed" disabilities for Disability Discrimination Act (DDA) purposes Ð including blindness, severe disfigurements, cancer and HIV.
• In other cases, an individual's condition must meet the statutory definition of disability to be protected under the DDA -however, this can often lead to uncertainty particularly in the case of mental impairment.
• Certain conditions are excluded from the DDA, such as substance addition - however providing an impairment falls within the definition of disability, its cause is irrelevant
• Employers should audit all policies and procedures for disability bias and regularly review the effectiveness of procedures for identifying potential disabilities and reasonable adjustments.

by Adam Fuge, employment partner, Matthew Arnold & Baldwin