New draft disability code may confuse HR workers

The extensive revision of the Disability Rights Commission’s code on
employment and occupation may confuse HR professionals due to its
interpretation of the law

The Disability Rights Commission
(DRC) recently published a new draft Code of Practice on Employment and
Occupation (along with a separate new draft Code on Trade Organisations and
Qualifications Bodies).

Both codes are likely to come into force in October 2004, when changes to
the law brought about by the Disability Discrimination Act (Amendment) (DDA)
Regulations come into force. Among other things, the new DDA regulations will:

– Amend the statutory definition of direct discrimination

– Make important changes to the duty to make reasonable adjustments

– Introduce specific protection against harassment for a reason relating to
a disability

– Alter the burden of proof in disability discrimination cases

– Extend the DDA to contract staff, office holders and even barristers

The imminent prospect of these changes is one reason why the Secretary of
State for Work and Pensions invited the DRC to update the code on employment
and occupation. Whether the changes justify a draft code almost three times the
length of the current one (running to 196 pages), is open to question.

However, the new draft is more comprehensive. It includes advice and
guidance on implementing anti-discrimination policies and practices, auditing
policies and procedures, and a section on managing disability and ill-health
absence, redundancy selection and the DDA’s impact on occupational pensions and
group insurance services.

In addition, the guidance on reasonable adjustments (likely to become
essential reading for HR professionals), recruitment, direct discrimination and
justification, has been revised in light of experience and case law
developments since 1996.

More problematic (and at times debatable) is the draft code’s interpretation
and analysis of the law. It is "intended to help lawyers when advising
their clients, and to assist courts and tribunals when interpreting novel legal
concepts".

This is all very worthy, but it is potentially confusing for HR
professionals who will have to get to grips with the distinction between direct
discrimination (which is new) and "residual less favourable
treatment" (which is not) if the code remains in its current form.

The code suggests the former will be the more important of the two, but in
practical terms, the latter will remain important in cases where an employer is
able to avoid liability for direct discrimination. Perhaps it would be clearer
if the code simply referred to two types of direct discrimination, rather than
terminology such as "residual less favourable treatment".

It includes many examples of conduct that is and is not likely to be
unlawful. This is helpful for making reasonable adjustments, but may confuse
some readers due to the DRC’s interpretation of the law.

For example, in the section on harassment, it suggests a manager who
constantly asks a woman suffering with depression whether she is alright could
be guilty of unlawful harassment. But clearly much would depend on the
circumstances, including his motives, the regularity of the questioning and the
victim’s reasonable perception.

The draft code deals with the thorny issue of asking about disability at the
recruitment stage. Such questions may be justified in terms of the duty to make
reasonable adjustments, but not normally otherwise.

All in all, there is a lot of food for thought. The consultation period ends
on 30 November. You can respond by completing a DRC questionnaire, writing in,
or e-mailing the organisation at www.drc-gb.org

By Anthony Korn, Barrister, 199 Strand Chambers

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