A
new series of quick guides to major employment legislation, putting key
information at your fingertips and bringing you up to date with the latest
developments. This week Elaine Aarons/Owen Warnock of law firm Eversheds
look(s) at the Disability Discrimination Act and the Government’s proposals to
plug some of the loopholes which have been allowing employees to miss out on
protection
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 which 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
inclusion was intended to deal with the risk that 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 which 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 day-to-day activities.
To
tackle this possibility, the DDA states that where a person has a progressive
condition which 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
day-to-day 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 day-to-day 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.
This
difficulty was identified by the Disability Rights Task Force and the Government
has now published its response to its 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 – such as some skin cancers – so it seems
wrong to treat them as creating disabled status.
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 their illness but has to undergo
fairly substantial treatment and so is regarded as being a disabled person,
whereas another person for whom 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 Disability
Rights 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 decision of the Government but,
rather, 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 having an
effect on employment law, although I doubt it since I believe Whittaker’s
argument is misconceived – nothing in the European Convention requires the UK
to have a law on disability.
Legal
niceties
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 about whether they are ill enough to qualify as being classed as
disabled.
No
self-respecting business should rely on the 15-employee threshold.
Unfortunately, experience shows that many managers do look for loopholes.
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