The Disability Discrimination Act (DDA) 2005, which became law yesterday (5 December), amends the existing DDA 1995 in a number of key respects.
Employers should note the changes as they will result in a substantially greater number of employees being protected by the legislation.
Prior to the new law, an employee with a mental illness was protected only if the illness was ‘clinically well-recognised’. This meant it had to be recognised by a respected body of medical opinion – for example, in a publication such as the World Health Organisation’s International Classification of Diseases.
Over the years, a number of employees with serious mental illnesses failed to gain the protection of the DDA, because they had been unable to show that their specific condition was clinically well-recognised within these terms. No such requirement applies to physical impairments.
Perhaps a driver for the clinically well-recognised requirement was the concern about the greater ease with which symptoms of unspecified mental illness may be faked. But the committee set up to consider possible changes to the 1995 Act observed that “the fact that the DDA makes it harder for people with mental illnesses to gain protection from discrimination than those with physical illnesses seems in itself to be discriminatory”.
The government acknowledged that this was unsatisfactory and the DDA 2005 has removed this requirement. This brought mental illnesses in line with other impairments and made the symptoms and effects of the complaint more important than its cause or origin.
From a practical point of view, this is likely to mean there will be greater scope for staff with problems such as stress to qualify as disabled persons. However, they have to show that the illness has lasted (or will last) for the 12 months the law requires, and that it will have the requisite substantial adverse effect on their normal activities. Inevitably, this is going to result in an increase in claims.
More diseases covered
The DDA 2005 has given greater protection to employees with cancer, HIV or multiple sclerosis. Employees – and job candidates – with these conditions are now protected against discrimination “from the point of diagnosis”. They no longer need to show that these conditions have had some material adverse effect on their ability to carry out normal day-to-day activities.
The government had previously talked about excluding certain minor forms of cancer. It has stepped back from doing this, recognising that it would be impractical to expect employers to make complex medical assessments before being able to determine whether a person with cancer was covered by the DDA or not.
From 4 December 2006, the DDA 2005 will place a new duty on public authorities to promote equality of opportunity for disabled people. This is similar to their existing duty to promote race equality. Companies signing deals with the public sector are likely to see their contracts include provisions for this new obligation on the relevant public authority. In effect, this will pass the obligation on to the private contractor.
Other changes include making third-party publishers as well as employers liable for publishing discriminatory advertisements; and clarifying the responsibilities of those concerned when the DDA is applied to group insurance.
What the DDA 2005 has changed
- Mental illness no longer has to be clinically well-recognised before it can constitute an impairment.
- Employees with cancer, HIV or multiple sclerosis have greater protection.
- Third-party publishers are liable for publishing discriminatory advertisements as well as employers.
- Public authorities will have a duty to promote equality of opportunity from 4 December 2006.