Get in on the Act

The remit of the Disability Discrimination Act is to be extended to bring
employees who currently miss out on protection under its umbrella, by Elaine
Aarons and Owen Warnock

Employees currently have no protection under the Disability Discrimination
Act if they are not "disabled". This is not as sensible as it sounds
because people can be vulnerable to discrimination merely because an employer
thinks they are disabled, or fears an existing illness will develop into a
disability.

The DDA gives some protection to people who have medical conditions that
cause only a limited impact but which are likely to develop to the point where
there is a substantial effect on day-to-day activities.

Early stages

This proposal is intended to deal with a specific risk: if a diagnosis is
made at an early stage, before a condition has developed, an employee might
suffer discrimination and yet have no legal protection. For example, an
employer might dismiss someone in the early stages of cancer to avoid the legal
obligations that would arise if the disease developed in such a way as to have
a more substantial effect on the person’s ability to carry out normal daily
activities.

To tackle this possibility, the DDA states that where a person has a
progressive condition that has some adverse effect on day-to-day activities,
even if this is not substantial, then he or she is to be treated as being disabled
if it is "likely" that in due course there will be a substantial
adverse effect on daily activities. The Act gives as examples cancer, multiple
sclerosis, muscular dystrophy and infection by the HIV virus.

Day-to-day implications

Cases have occurred where, in the early stages of a medical condition such
as cancer and HIV, there is no significant impact on normal daily activities.

In such cases, the person concerned is not "disabled" and has no
remedy when treated adversely by an employer. For example, an employer might
dismiss a person with asymptomatic HIV infection, whether because the employer
fears that the person will subsequently have poor attendance, or simply because
of prejudice, and yet this would not be unlawful disability discrimination.

The Disability Rights Task Force identified this difficulty and the
Government has now published its response to the recommendations. It proposes
amending the Act to make some special rules. In future, HIV infection will
count as a disability from the time it is diagnosed. In relation to cancer,
protection will apply from the point when the medical advice is that the
condition is likely to require substantial treatment. The reason for this
slightly more complicated arrangement is that some cancers will never require
substantial treatment.

Shortfalls in the Act

Unfortunately, there will still be gaps in the law. There will be cases
where one person with cancer remains fit and active throughout the illness but
has to undergo fairly substantial treatment and so is regarded as being a
disabled person.

On the other hand another person whose the cancer has continuing low-level
adverse effects but who needs little treatment will not be legally disabled.

It may be that the Government’s proposals will be refined to address this
issue during the consultation period.

There is also a strong argument for extending the rules to other progressive
conditions. Indeed, if the aim of the law is to encourage equal opportunities
for all and to encourage selection on merit, the DDA should be amended to
protect job applicants and employees against detriment imposed merely because
the employer thinks the employee is disabled.

Another gap occurs because the DDA does not apply to employers with fewer
than 15 staff. The Government has announced, again at the suggestion of the
task force, that this threshold will be abolished. But a case being brought by
Mr Whittaker against P&M Watson Haulage (ET case no 1805354/00) suggests
this reform may not be a voluntary Government decision but, will be forced upon
it under the Human Rights Act.

Whittaker argued that the exclusion meant his right of access to the courts
– an aspect of the right to a fair trial in the European Convention on Human
Rights – was being denied.

The employment tribunal in Leeds thought he had a strong argument and has
"stayed" his case, pending a decision by the higher courts. This case
could be one of the first examples of the Human Rights Act to have an effect on
employment law, although it seems doubtful since Whittaker’s argument may be
misconceived – nothing in the European Convention requires the UK to have a law
on disability.

Does it matter whether there are gaps in the DDA? No, employers should be
seeking to recruit and retain all competent workers, irrespective of how
disabled or ill they are, and to make any reasonable adjustments without getting
involved in legal niceties.

Elaine Aarons and Owen Warnock are employment law specialists with law
firm Eversheds

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