Issues relating to disability discrimination have been regularly hitting HR for some time. With the recent arrival of the Disability Discrimination Act 2005 (DDA), which received Royal Assent on 7 April, employers are faced with yet more changes – among others, the workplace treatment of HIV-positive men and women, and of people with potentially progressive conditions.
The new Act
Potentially, the impact of the new provisions will be among the most far-reaching yet. The new measures, which will affect the employment relationship, include:
- Those who are HIV-positive, or have multiple sclerosis (MS) or certain forms of cancer will be viewed as automatically disabled for the purposes of the DDA. The government has reserved the right to make regulations to exclude certain ‘minor’ cancers which do not require substantial treatment from the scope of the DDA
- The requirement that a mental impairment must be ‘clinically well recognised’ to be covered by the DDA will be removed
- A new positive statutory duty will be placed on public authorities requiring them to, when exercising their functions, have regard to the need to eliminate unlawful discrimination against, and harassment of, disabled persons, and to promote equality of opportunities for such persons.
Traditionally, there has been some confusion about the level of protection offered to those suffering from progressive conditions. It was initially thought by some groups that automatic protection had been granted under the DDA. However, following the Employment Appeal Tribunal decision in Mowat-Brown v University of Surrey  IRLR 235, it was established that the fact that an individual had a progressive condition – in this set of circumstances MS – was not in itself sufficient to bring the individual within the statutory definition of disability without medical evidence of the future likely effects of the condition on the individual.
Those who were HIV-positive, or had MS or cancer, were clearly at a disadvantage in bringing DDA claims. Campaigning groups supporting those who were ill with such diseases placed the government under substantial pressure to make changes that would remove hurdles to bringing claims and obtaining relief. As a result, the principle of automatic protection for certain groups is to be established. This means employers will have to proceed with caution when dealing with employees who have such conditions.
Employers will automatically need to consider whether their actions could be deemed less favourable treatment and/or an act of direct discrimination, and/or whether they are under a duty to make reasonable adjustments. Given the fact that the small employers’ exemption was abolished from 1 October 2004, this potentially represents a significant burden for all employers.
Until recently, a person claiming they had a mental impairment had to establish that the impairment was clinically well recognised, although such a requirement did not apply to those claiming a physical impairment. Mental health groups viewed this as an extra obstacle to overcome for people with mental health issues in bringing claims in employment tribunals.
The central argument of mental health groups is that, not all mental health conditions are clinically well-recognised by a recognised body of medical opinion. With this in mind, the joint committee of the House of Lords and the House of Commons, which dealt with the draft bill that has now become DDA 2005, wanted to take protection for those with mental health conditions a step further, and was disappointed that the draft bill did not delete the requirement that the mental condition must be long term. It argued that many mental impairments have short-term impact but may repeat at various stages.
While this is sometimes taken into consideration by employment tribunals, the joint committee was keen to remove the long-term requirement to provide greater protection to those suffering from a mental impairment. The UK government was not prepared to agree to this proposal.
A central point of attack for an employer has often been to request a medical report which will seek to challenge whether a mental impairment is a medically-recognised condition – the objective being to have the claim struck out at an early stage. The removal of the requirement for the condition to be medically-recognised will put employers in a defensive position. The person with a mental impairment may find it far easier to come within the statutory definition of a disability and, ultimately, be successful at a tribunal.
To prepare for the changes, the lessons for employers are clear. Careful attention to an employee’s condition, whether pronounced or not, must be given throughout the employment relationship. Employers should address any problems that an employee expresses in relation to mental health issues. The employer should be alert to signs of mental distress or problems including serious mood swings, difficulties in concentrating, taking instructions or giving instructions and/or irregular absences from work. An employer cannot, and will not, be expected to become a psychiatrist or a medical expert. However, a tribunal will expect an employer to reasonably investigate where it is clear that an employee is having problems.
In terms of the changes facing public authorities in disability discrimination issues, the DDA imposes some of the same central provisions of the Race Relations (Amendment) Act 2002 on disability discrimination legislation. This legislation required public authorities to promote race relations as a central part of their equal opportunities policy, and the DDA is expected to have a very similar effect.
What should HR be doing?
Changes following the implementation of the Disability Discrimination Act 1995 (Amendment) Regulations 2003 last October are starting to show signs of effect, particularly by bringing small employers within the provisions of disability discrimination legislation. The Regulations also inserted a definition of harassment into the legislation. Attitudes and comments of a derogatory nature within the workplace, which could create an oppressive workplace environment, may enable a disabled employee to bring a claim.
Further, the new provisions outlined in the DDA will substantially take forward the rights and interests of disabled people. Areas where there have been clear gaps in the protection afforded to disabled people are now being addressed by statute. Consequently, HR should:
- Review equal opportunities policies and ensure reference is made to the new areas of protection outlined above
- Review disciplinary and grievance procedures so it is made clear that discriminating against people who are HIV-positive, have MS, certain forms of cancer and/or harassing people with disabilities, is a disciplinary offence. Grievance procedures should make clear that people with disabilities who suffer discrimination in relation to the above, should utilise the grievance procedure
- Undertake staff training on the changes and ensure this is monitored and reviewed
- Keep up-to-date with case law to be aware of how employment tribunals are dealing with the new issues.
David Gibson is an associate at Dickinson Dees
The Disability Discrimination Act 1995 (the DDA) came on to the statute books in 1996.
Challenges to the DDA’s provisions have come from within the UK and the European Union, most notably in the form of the General Framework Directive, which has required the UK government to implement a number of changes.
Some such changes came into effect on 1 October 2004 under the provisions of the Disability Discrimination Act 1995 (Amendment) Regulations 2003, to be followed just six months later by the latest revision – DDA 2005.