EMPLOYMENT - Disability Discrimination
New Regulations
There are two major pieces of legislation relating to disability discrimination which employers must be aware of.
The first is the Disability Discrimination Act 1995 (amendment) Regulations 2003 which come into force in October 2004. The second is the draft disability bill.
From October 2004, a number of changes will be taking place in terms of disability discrimination law and the obligations on the employer. At present, if an employer has less than 15 employees, it is exempt from the provisions of the Disability Discrimination Act 1995. As from October 2004, this exemption will no longer apply and ignorance of the law is no excuse!
The definition of disability discrimination is the less favourable treatment relating to a disabled person’s disability when compared to a non-disabled person. For example, if an employer doesn’t employ somebody in a wheelchair because of the inconvenience and opts for a similarly qualified non-disabled person.
From October 2004, disability discrimination can either be direct or indirect. Direct discrimination is where on the grounds of a person’s disability they are treated less favourably when compared to a non-disabled person. For example, an employer does not take on a person as a typist because they have arthritis. There is no defence to this type of discrimination.
Indirect discrimination is where the less favourable treatment is related to a person’s disability. For example, in order to be successful for the typing job, the candidate has to pass a test. The typist with arthritis fails because of her condition. Not employing her is indirect discrimination because her failure relates to her condition. However, the employer does have the defence of justification to indirect discrimination. (NB an employer must, in these circumstances, look at whether there are reasonable adjustments s/he could make to the test in order to succeed with this defence.
From October 2004, there will also be a new statutory definition of harassment. Under this definition, there may be harassment of a disabled employee even if there was no intention to harass.
The Disability Discrimination Act 1995 imposes a duty on employers to make reasonable adjustments to allow a disabled person to carry out his or her work. This is intended to create a level playing field for disabled employees. There are obvious physical adjustments, for example, to premises or work stations but less obvious ones. For example, allowing longer/more frequent breaks for a diabetic employee. This duty is, at present, triggered where there are any arrangements or physical features which place a disabled person at a substantial disadvantage when compared to a non-disabled person. The duty, however, is to be expanded to include “provision, criteria or practice”.
At present, there is a defence of justification in these circumstances. However, from October 2004, this will no longer exist. If an employer is under such a duty, they must make reasonable adjustments.
In terms of constructive dismissal, case law was undecided as to whether it applies to a disabled person under the meaning of the 1995 Act. From October 2004, the new regulations will make sure that it does.
Disability discrimination will also apply after employment has ended. For example, in relation to the giving of references.
In order to avoid disability discrimination, it is essential that an employer does the following:-
- Check they have all the correct policies and procedures in place. For example, to flexible working arrangements, redundancy, selection criteria, sickness absence scheme and bullying and harassment policies.
- Ensure that all employees are aware of their rights and obligations in terms of anti-discrimination policies and that any breach of these will result in disciplinary action.
- Providing training to employees on disability awareness.
- Regularly review any reasonable adjustments which the employer has made for disabled employees to ensure their effectiveness.
September 2004
