Redefining disability will be painful for employers

Changes to the Disability Discrimination Act 1995 are due to be introduced under the forthcoming Disability Bill between late 2005 and early 2006. It will extend the definition of ‘disability’, which will impact on employers and could lead to arguments in employment tribunals.

The terminology is a legal and cultural minefield. Currently, the Act protects all those who would normally be considered as being disabled – whether through a mental illness, physical impairment or other long-term health condition. However, the existing definition of disability is broad enough to cover people who may not be regarded as disabled in the everyday use of that term, for example, people with asthma. In each case the matter depends on the effects which the particular condition has on the individual.

This is because, under the current Act, a disabled person is defined as someone who has a physical or mental impairment which substantially and adversely affects their ability to carry out normal day-to-day activities. The extension to the definition of ‘disability’ which is due to be introduced will mean that those people with cancer, multiple sclerosis or who are HIV positive will be deemed to be disabled under the Act from the moment of diagnosis. Whereas previously these individuals might have been considered disabled if their condition affected their ability to carry out day-to-day activities, they will in the future be protected under the Act, even when they are not experiencing any effect on their ability to carry out these activities.

Morally, it seems right that people who face such diagnoses should be offered some form of protection from employers, who might seek to use that diagnosis as a reason for discriminating before or during employment. However, there is a risk that the forthcoming definition is so wide and subjective that individuals with much less serious conditions, or at least with less serious consequences – such as those who suffer from migraine – may fall under the protection of the Act, while a cancer sufferer who has (on the face of it) been treated successfully might not.

There will inevitably be the situation that an HIV patient or an MS sufferer will have no symptoms of illness – perhaps for years – but they will be afforded protection from discrimination under the Act. There is no known cure for HIV or MS and so one must assume that, once diagnosed, these individuals will be afforded protection under the Act indefinitely.

One risk is that they may receive unnecessary preferential treatment compared to their colleagues.

By way of example, if an employer has a redundancy pool of two broadly equal employees, one HIV-positive and one not, the employer may choose to retain the HIV-positive employee to reduce the risk of a claim of discrimination, even though the employee might not have manifested any symptoms of their HIV status. Given that these conditions will likely be kept private between the individual and the employer, this unexplained preference may cause friction with colleagues.

Similarly, at what point will an individual who has been diagnosed with cancer and subsequently treated be deemed not to be disabled, and therefore not benefit from the Act? The Act cannot list every condition which might be considered a disability, but does the fact that there are some specific conditions listed and not others, such as arthritis, mean that the latter might potentially be excluded?

Another area of concern for employers is the cost of implementing these rules, particularly now that the exemption for employers of less than 15 employees has been removed. While companies with large profits may have sufficient resources in terms of support staff and finances, some small employers may find that the costs of making reasonable adjustments, such as temporary (but regular) cover for employees absent at short notice, is simply unsustainable. This is particularly serious given the recent judgments in the House of Lords on the breadth of what the law considers reasonable in these circumstances.

That is not to say that these employees do not deserve protection. However, there will inevitably be a discord between the well-meaning intentions of the legislation, individuals who suffer from conditions which are not listed, and the reality of employers’ resources, financial or otherwise.

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