Legal Q & A: What constitutes a disability?

By Robin Bloom, employment partner at Dickinson Dees

Q Amendments to the Disability Discrimination Act (DDA) are coming into
force in 2004. What can I expect?

A Most of the changes relate to accessibility to buildings rather
than obligations on employers. The three significant areas for employers are
likely to be the removal of the small employer exemption, the automatic
classification of HIV and cancer as disabilities, and clarification of what is
expected by way of reasonable adjustments to premises.

As far as the latter is concerned, this is expected to define the steps
employers will need to take in offering alternative employment and making the
workplace more accessible.

Q Age discrimination legislation will be introduced in December 2006.
Will it link with the DDA?

A This is very interesting. Employees are currently expected to
retire at a certain age, and if they have not done so by 65, they can be
dismissed without being able to bring a claim to the Employment Tribunal – save
for a possible claim for indirect sex discrimination by men. Assuming the age
discrimination legislation outlaws the concept of a retirement age, employers
will only be able to dismiss workers in relation to their capability to do
their jobs.

In reality, this will mean those remaining in employment to a greater age
are likely to be subjected to more stringent performance reviews. It is a fact
that older people begin to suffer from more long-term medical conditions, such
as arthritis, for example. This may affect their ability to do their jobs, but
they may then be protected by the disability discrimination legislation.
Thirty-three per cent of over- 55s have a disability, and employers could find
themselves having to adjust working practices to accommodate an older
workforce.

Q What is the relationship between stress at work and disability
discrimination claims?

A There are many genuine cases, but I am also aware of numerous
examples where workers facing disciplinary action or grievance procedures
suddenly developed a complaint of stress and found a doctor willing to support
them.

For a mental illness to be regarded as a disability under the Act, it must
be clinically recognised. Stress-related illness that isn’t clinically
recognised is not a disability in itself, but moderately severe depression is.

However, in a recent case, a worker absent with a stress condition was
subsequently dismissed when he returned to work. He brought a claim for
disability discrimination. The employer had medical evidence that he had no
clinical medical condition at the time of dismissal, but the tribunal ordered
an independent psychiatric report.

This report stated the ex-employee suffered with post-traumatic stress due
to bullying at work. This was despite the fact his employer had commissioned an
independent report while he was employed which rejected any suggestion of
bullying.

This type of approach by the medical profession to claims of stress at work
can mean employers are constantly on the back foot when dealing with staff
bringing stress claims.

Q Is the DDA working as planned?

A Unfortunately, I don’t think it is. The definition of disability is
so broad it often appears to be used as a crutch by undeserving applicants,
while those with genuine disabilities seem reluctant to use the provisions to
improve their working environment. I hope the Disability Rights Commission
might consider ways of improving the effective use of the legislation.

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