It is four
years since the Disability Discrimination Act came in, but employers find it a
complicated piece of legislation.
Five-and-a-half
years ago, the then minister for disabled people William Hague rose to his feet
in Parliament and delivered a speech outlining legislation designed to mollify
the vociferous disabled rights lobby.
“The new
employment right is broadly on the lines of present anti-discrimination
provision for women and ethnic minorities,” he told MPs.
On 2
December, it will be four years since the enactment of the Disability
Discrimination Act and, as a new report from the Institute of Employment Rights
argues, Hague has been found to be very wrong.
First,
unlike either the Sex Discrimination Act or the Race Relations Act, the DDA
exempted small companies from its scope. The Tories said a small company was a
firm with fewer than 20 employees; Labour amended the threshold to 15 employees
in 1998, thereby increasing the number of disabled employees within the reach
of the Act by 70,000. But the principle still holds – small employers are
entirely free to discriminate; big employers are not.
Second, and
again quite unlike the other equal opportunities laws, the DDA said direct
discrimination could be justified for “relevant and substantial reasons”.
Third, both
the other Acts had commissions to enforce them. The Conservatives created the
National Disability Council, which was explicitly denied the power to
investigate complaints. Labour has since established the Disability Rights
Commission, a quango with a budget of £11m – roughly twice that of the Equal
Opportunities Commission.
In other
words, in trying to head off a rebellion by unemployed disabled people, while
keeping employers onside, the DDA was –
and is – a very different beast from any other bit of legislation.
But then,
unlike gender and the bulk of ethnicity cases, disability does not always
revolve around questions of visible difference. It was always going to be
complicated. “My view is that the Act is something of a grey area,” says Kim
Maidment, head of personnel at mental health charity Mencap. “But you need an
Act to be able to go to tribunal to find out the answer to certain questions.”
Such as,
“What is a disability?” The DDA itself says a disability is “a physical or
mental impairment which has a substantial and long-term adverse effect on the
person’s ability to carry out normal day-to-day activities”.
But in
practice, tribunals have tied themselves up in knots trying to work this out –
often assessing medical evidence at levels of technical detail they are not
comfortable with. A mental impairment has to be “clinically well recognised” and not “moods or mild eccentricities”,
according to government guidance. But this kind of initial problem that
surrounds definitions means disability issues are automatically trickier than
other jurisdictions.
“Proving
that an individual suffered less favourable treatment is more difficult in
disability cases than in race or sex,” says Gary Bowker, editor of Equal
Opportunities Review.
The IER
says ignorance remains a real problem with the DDA. Many employers simply do
not understand their obligations or make gut assumptions about the nature of
disability.
This is something
chairman of the Disability Rights Commission Bert Massie believes still
surrounds the Act. “There is this view from some quarters of business that we
want to see blind people as fighter pilots. They [businesses] do not seek to
ask the basic questions that they ask in all other employment contexts, such as
has this person got the skills to do this job?”
He says the
same argument lies at the heart of the DRC’s opposition to the public-sector
exemptions, which remove the police, firefighters, prison officers and the Army
from the scope of the Act.
“Not all
disabled people are in a wheelchair. Many existing employees are likely to have
some disability, particularly as the workforce gets older.”
Contrary to
predictions four years ago, the DDA seems to have had only a marginal impact on
recruitment. Only 12 per cent of the DDA’s cases so far involve recruitment
issues, unlike the Sex Discrimination Act which saw more than a quarter of
early cases coming from people trying to get into work. Average tribunal pay-outs
in disability still seem relatively high.
The
Government has no plans at the moment to amend the Act any further, but the
agreement in Europe of the Framework Directive on Discrimination is likely to
mean further changes to disability law before 2006, the deadline for
implementation.
The
directive makes no reference to any small employer threshold, so it is likely
that pressure on the Government to scrap the threshold will be stepped up in
the next few years – something the IER is very much in favour of.
“One fear
raised by our report is the scope for undermining the rights introduced,” says
IER director Carolyn Jones. “Judicial interpretation of what is considered
‘reasonable’ for an employer to do has traditionally been rather narrow and too
often to the detriment of the employee.
By Stephen
Overell
What the IER recommends
Institute
of Employment Rights suggestions include:
·
Definition
of disability should be amended to include HIV from the point of diagnosis, and
cancer from the moment it has a significant consequence on the life of the
cancer sufferer
·
Small employer
exemption
should go
·
While
it remains, associated employers should be treated as one in calculating the
number of employees for threshold
purposes
·
Excluded
professions should be included in scope of the Act
·
General
defence of justification of discrimination in employment should be amended so
as to permit discrimination only on specified rational grounds such as that the
individual would not be able to perform essential functions of the job, or to
protect health and safety
·
Public-sector
bodies should have a duty to promote equalisation of opportunities for disabled
people and should use purchasing power to promote compliance among contractors
·
Details
of any disability claims should be reported to shareholders in company annual
reports.
Source: Challenging Disability
Discrimination at Work by Mary Stacey and Andrew Short, IER, £6.50 trade
unions; £20 others
Disability discrimination pay-outs
The vast
majority of DDA applications concern employees or ex-employees.
Average
tribunal pay-outs in disability cases still seem relatively high in comparison
with other laws. At £9,981, this is often a reflection of the fact that people
might have trouble finding work.
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But there
have been relatively few awards – the Equal Opportunities Review found only 37
last year – so the median figure might be a better guide to trends. This shows
that the median compensation award for disability is £5,500 in comparison to
£6,000 for race cases and £3,713 for sex discrimination – nothing too
extraordinary for employers to cope with.
