In on the Act: disability discrimination

The latest in a series of quick guides to major employment legislation,
putting key information you your fingertips. 
This issue we look at disability discrimination

The hard facts

The Disability Discrimination Act 1995 (DDA) makes it unlawful to
discriminate in almost all areas of employment against people who are disabled.
This includes treating someone less favourably because of their disability by:

– Not recruiting them

– Offering them inferior terms

– Not training them, or

– Dismissing them

It is also unlawful to fail to put into place "reasonable
adjustments" to remove any substantial disadvantage they may suffer
because of their disability (such as installing a ramp, buying special
software, or reducing working hours). Employers can defend their position by
showing their less favourable treatment was "justified", that is,
there was a material and substantial reason for the treatment. A failure to
show justification can result in unlimited compensation for losses and injury
to feelings being awarded by an employment tribunal. The largest award to date
has been £102,717.

Difficult issues for employers:

– Is the employee disabled at all?

– What reasonable adjustments must we put into place?

– What is our justification for treating the employee less favourably?

– Can we dismiss?

Is the employee disabled?

This is often a vexing issue. Although highly dependent upon medical
evidence, it is actually a legal question focusing on the effects of the
employee’s condition upon everyday activities, such as reading, walking or
remembering.

For help on this complex matter, see the Government’s guidance on the
definition of disability: at www.disability.gov.uk/dda/dle/guidance.html

Employers may find it useful to ask an occupational physician or a
specialist in the relevant field (such as a clinical psychiatrist) to give
their opinion of what effects the employee may be likely to suffer. Contact the
Law Society’s directory of expert witnesses on 020-7393 7780 for help in
finding a suitable medical expert. Alternatively, see www.expertwitness.co.uk
and www.specialistinfo.com

What reasonable adjustments?

The extent of this duty often amazes employers. Just saying, "It won’t
work" will most likely land them in a tribunal court. Speak to the
employee to find out his or her views. Ask a medical expert for advice on what
would help the employee do the job without the disadvantage currently suffered.

Be prepared to be flexible and think laterally, but remember the adjustment
need only be reasonable and you can balance the employee’s needs with the
requirements of the business. It may be possible to ask for financial
assistance to help purchase equipment under the "Access to Work"
programme. To contact a disability employment adviser or an access to work
adviser, or for more information see
www.employmentservice.gov.uk/English/Employers/disability.asp

What is our justification for the less favourable treatment?

Provided you have honestly explored reasonable adjustments first, you may be
able to justify failure to employ someone in a particular post. This could be
because for health and safety, for operational or financial reasons. A claim
that "the staff/customers wouldn’t like it" is unlikely to be accepted.
See the Government’s Code of Practice for further examples of justification and
a detailed explanation of the Act, at www.disability.gov.uk

When can we dismiss?

Just because someone is disabled does not make it impossible to dismiss him
or her, say, for long-term absence. Provided you bear in mind issues of unfair
dismissal (you have a proper reason for dismissal and you follow a fair
procedure, for example) dismissal may be permissible. However, remember to
consider reasonable adjustments before dismissal – maybe the employee could
return to work in another post, or part-time, or with greater support. Also,
make sure you are clear as to your justification for dismissal. A full copy of
the DDA can be found at: www.legislation.hmso.gov.uk/acts/acts1995/Ukpga_19950050_en_1.htm

A range of useful information on disability can be accessed via the
Disability Rights Commission’s website: www.drc-gb.org

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