Dealing with disability

Many people think that disability discrimination legislation was first introduced in the mid-1990s. However, the fact is that such laws have been in force for more than 60 years.

Before 1995, the legislation dealing with the employment of disabled people consisted of the Disabled Persons (Employment) Act 1944 and the Disabled Persons (General) Regulations 1945. These statutory provisions introduced a quota system whereby employers with 20 or more employees had to ensure that at least 3% of their workforce were registered as disabled.

This may have come as something of a surprise. However, the reality was that this requirement was very rarely enforced. There were only three prosecutions for failing to meet the quota between 1965 and 1995, with the last reported case in 1974.

The Disability Discrimination Act 1995 repealed the 1944 and 1945 legislation on 2 December 1996.

Disability discrimination facts

£15,059 The average award in disability discrimination claims made by the Employment Tribunal Service in 2006-07.

  • In one case, theme park Legoland Windsor was found to have discriminated against one of its employees when he was presented with a Lego model that depicted him with his arm in a sling.
  • The discrimination complaint can relate to less favourable treatment before, during or after the employment has come to an end.
  • There is no limit on the amount of compensation that can be awarded by an employment tribunal for disability discrimination.

£550,499 The highest recorded award for disability discrimination.

  • Since December 2006, all public authorities have been subject to the Disability Equality Duty. This requires them, in the carrying out of their public functions, to promote disability equality and eliminate unlawful discrimination. The reference to all public authorities includes local authorities, government organisations, governing bodies of schools, colleges and universities, NHS trusts, chief officers of police, and the prison service.

£138,648 The highest award for disability discrimination at an employment tribunal last year.

  • Since 1 October 2004, it has not been possible for an employer to ‘justify’ a failure to comply with the duty to make a reasonable adjustment.

£25,000 The upper limit an employment tribunal can award an employee who has suffered disability discrimination to reflect ‘injury to feelings’ in addition to the compensation for financial losses. The tribunal will take into account the seriousness of the discrimination and in exceptional cases the tribunal can award even more.

  • Someone with a severe facial disfigurement is also protected under the disability discrimination legislation.

5,533 The number of disability discrimination claims heard by the Employment Tribunal Service in 2006-07.

  • The European Court of Justice is currently considering whether a claim for disability discrimination can be brought in the UK by someone who is not disabled, on the grounds that they have been less favourably treated because of their ‘association’ with a disabled person.
  • Claims for discrimination may be brought in the employment tribunal against the employer and individual employees.

Michael Ball, employment partner at Halliwells

Did you know?

  • According to the Office for National Statistics Labour Force Survey (September-December 2006), nearly one in five people of working age in the UK – almost seven million people – is disabled.
  • Under the Disability Discrimination Act (DDA), people who are addicted to alcohol or nicotine, for example, are not regarded as disabled. In today’s increasingly smoke-free environment, it would undoubtedly lead to fierce debate if smokers were entitled to extra breaks during their working day under the legislation.
  • Although increasingly high on the government’s agenda, the occasional appearance of ‘stress’, ‘depression’ or ‘anxiety’ in an employee’s GP records will not be regarded as proof of a mental impairment. In December 2005, the government agreed that people who claim to have a mental impairment should not have to prove they are suffering from a clinically well-recognised illness. However, the World Health Organisation’s International Classification of Diseases still does not classify stress as an illness in itself.
  • Specific progressive illnesses, such as HIV, multiple sclerosis and cancer, are regarded as disabilities from the point of diagnosis, even if they don’t have any effect on the person’s day-to-day life at that time.
  • Albeit a very common syndrome, dyslexia also falls under the DDA. The British Dyslexia Association estimates that around 10% of the UK population is either mildly or severely dyslexic. Because of the impairments of dyslexia and other less obvious disabilities, such as asthma, staff awareness training is crucial.
  • The DDA does not apply to people who wear glasses or contact lenses, even though some may be almost blind without them.
  • Under the DDA, the word ‘accessible’ does not purely mean physically. To avoid falling foul of the Act, employers must ensure their websites are accessible, and can be navigated by anyone – even blind and visually impaired people. Of course, there are exemptions in the same way as there are when it comes to making ‘reasonable adjustments’, but this will have to be demonstrated.
  • Employers can, in some circumstances, treat a potential employee differently if they have a very good reason. For example, if a person with severe depression applies for a job as a train driver or a pilot, they may be rejected on the basis that their condition and the side effects of any treatment could affect the safety of the passengers.
  • Under the DDA in Australia, which is similar to the UK’s, it is unlawful to discriminate against someone just because one of their associates is disabled.
  • As the only major employer in the UK not covered by the DDA, the Armed Forces does not have the same duties towards disabled staff as other employers. The argument is that all personnel need to be fit for combat, and this is a decision for the Ministry of Defence, and not the employment tribunals.

Rachel Blythe, solicitor at Simpson Millar

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