Disability Discrimination Apathy

It is 10 years to the day since the Disability Discrimination Act (DDA) was first introduced. But a decade on, only 50% of registered disabled people living in the UK are in employment, compared with more than 80% of people without disabilities.

And disabled people are still more than two times less likely to be employed than able-bodied people who are similarly qualified.

Raising awareness

The DDA was a significant benchmark in raising disability awareness and equality in the workplace, according to Adam Turner, employment lawyer at Lovells.

“Previously, there had been a quota system where larger employers had to ensure that at least 3% of their workforce were registered disabled people, but this was often ignored,” he said. “At last people felt that some action was being taken to tackle disability discrimination in employment.”

The DDA classified a disabled person as “someone who has a physical or mental impairment that has a substantial and long-term effect on his or her ability to carry out normal day-to-day activities”. Long-term is defined as a minimum period of 12 months.

The disability also had to be consistent (rather than fluctuating) to be covered by the DDA, and any mental impairment needed to be ‘clinically recognised’ by a doctor. Perhaps most importantly, firms were expected to make ‘reasonable adjustments’ to accommodate disabled employees.

But although the DDA represented a positive step for disabled people, many employers found the guidelines ambiguous.

Turner said the confusion was understandable.

“The Act itself is a clear framework, but because the concepts themselves are quite fluffy, it can be hard for people to get a grip on all the issues,” he said. “Disability discrimination, like other discrimination law, is more difficult to apply in practice than some other employment rights, such as unfair dismissal.”

Ten years on, many employers and workers are still apathetic about disability, according to new research by disability recruitment website Ready, Willing, Able (RWA).

Poor response

RWA surveyed more than 800 companies, from both the public and private sectors, about their views on disability. The website only received 86 responses – nine of which were from members of the Employers’ Forum on Disability.

“Most of the respondents, ranging from one person to organisations with 48,000 people, did not have any disabled employees,” said Nick Lewis, co-director at RWA. “The government says a lot about getting people off disability benefits and into work, but it’s clear that the move to employ the vast reservoir of skills and energy on offer from disabled people is not yet under way.”

It is also apparent that the Act is not doing enough to protect disabled workers. Research by the Public Interest Research Unit (Piru) shows that nearly 4,500 DDA employment claims were dropped last year before they even reached tribunal stage. The unit found just 236 successful cases at tribunal level.

Rupert Harwood, trustee of Piru, blames the expensive legal system for the poor success rate.

“For those who can afford a solicitor for 12 months, the system sometimes works,” he said. “For everyone else, it’s arguably an affront to fairness and justice. How is someone with a severe learning disability and no legal representation expected to prepare and present a complex legal case?”

Piru analysed 85 employment cases and employment policy documents from 40 public authorities. It found that even where employers had disability information, it was rarely circulated to staff.

“Most sickness procedures we looked at made no mention of the DDA,” Harwood said. “We interviewed a selection of middle managers and staff who knew little about how to deal with disability.”

Employers have also had to cope with a number of changes to the law. Before October 2004, the DDA only applied to businesses with more than 15 employees. Since then it has been extended to incorporate all businesses, regardless of the size of the workforce. In December, the definition of disability will be extended to include people with HIV, cancer and multiple sclerosis. Mental illness will no longer need to be defined as ‘clinically well-recognised’.

Exclusion zone

But the Act still excludes many other progressive illnesses, such as motor neurone disease, and there are concerns that there could be an increase in stress-related illness claims after the relaxation of clinical recognition.

The Act also now requires public bodies to promote equality of opportunity for disabled people, and to ensure that all public sector activities are covered by discrimination law. And Turner believes this will raise the profile of the DDA.

“The new positive duty on public authorities to promote equality of opportunity for disabled people will help raise the general awareness of disability discrimination, and should hopefully encourage the private sector to follow suit,” he said.

But despite this optimism, the future of the DDA is still unclear. If it works properly, it could be an effective way to prevent discrimination. But until more employers take any notice of it, the ignorance will continue. Some people already think it is a lost cause.

Harwood said: “The DDA is probably beyond repair. We would like to see it replaced with a civil rights Act that properly addresses discrimination. Individuals should be able to gain work, promotion and job satisfaction without having to suffer prejudice and disadvantage.”

More legislation is unlikely to be welcomed by employers. But it is clear that more needs to be done to accommodate the UK’s disabled workers to take advantage of the much-needed skills they possess.

Don’t miss December’s issue of Employers’ Law for a round up of all the latest disability discrimination cases. To subscribe, go to www.personneltoday.com/StaticPages/EmployersLawMagazine.htm or call 01444 445566.

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