The DDA has been in place since 1996 but it is only on 1 October 2004 that some of its final provisions come into force. These deal with both property and employment issues.
The new property provisions stated that where a physical feature makes it impossible or unreasonably difficult for disabled persons to make use of a service, the service provider has a duty to take such steps as is reasonable in all the circumstances either to:
- Remove the feature;
- Alter it so that it no longer has that effect;
- Provide a reasonable means of avoiding it or
- Provide a reasonable alternative method of making the service available.
The Disability Rights Commission has produced a Code of Practice which recommends removal or alterations so that wherever possible, disabled people can use services or obtain goods in the same way as other customer.
The reason for the long period of time between the Act coming into force and these provisions taking effect was to encourage service providers to be pro-active and to prepare for these new obligations eg carrying out access audits. Whilst call an access audit, it does not just cover access for wheelchair users. It also covers access for visual and hearing impaired and other disabilities. People often assume that disabled people are wheelchair users but this accounts for a very small percentage of disabled people.
The new property provisions only relate to service providers. A company, individual or other organisation is a service provider if it is concerned with the provision of services, goods or facilities to the public. The size of the organisation is irrelevant as is whether the services are provided for payment or not.
Service providers are only required to deal with what is reasonable. The Code states that what is reasonable will vary according to the type of service being provided, the nature of the service provider, its size and resources and the effect of the disability on the individual disabled person.
The duty is subject to the qualification ‘without justification’. However, the grounds on which a service provider can justify non-compliance are very limited.
If a service provider fails to comply with its duty to take reasonable adjustments, it risks legal action.
There are also changes in the obligations of employers. At present, if an employer has less than 15 employees, it is exempt from the provisions of the Act. This exemption will no longer apply.
Discrimination under the Act is the less favourable treatment for a reason relating to a disabled person’s disability when compared to a non-disabled person. For example, an employer doesn’t employ a wheelchair user because of the inconvenience and chooses a similarly-qualified non-disabled person. At present, there is a defence of justification to such direct discrimination fur the new provisions alter this.
There will 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 Act 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 equal opportunities for disabled employees. There are obvious physical adjustments that can be made eg to premises or work stations. However there are less obvious ones eg allowing longer/more frequent breaks for a diabetic employee. The circumstances in which this duty is triggered are to be increased. At present, there is again a defence of justification but from October 2004, this will no longer exist.
Obligations will also apply after employment has ended eg in relation to the giving of references.
To avoid falling foul of the DDA, it is essential that employers:
- Check they have all the correct policies and procedures in place eg flexible working arrangements, redundancy selection criteria, sickness absence and bullying and harassment policies.
- Ensure that all employees are aware of their rights and obligations in terms of anti-discrimination policies and it is clear that any breach of these will result in disciplinary action.
- Provide training to employees on disability awareness.
- Regularly review any reasonable adjustments which the employer has made for disabled employees to ensure their effectiveness.
August 2004
Jo Thirsk is a partner specialising in commercial property. Georgina Brennan qualified as a barrister in 1989 and specialises in employment as a legal consultant.
email jo.thirsk@raworths.co.uk
