The Disability Discrimination Act 1995 makes it unlawful to discriminate against disabled persons in employment and other areas.

What constitutes a disability?
A person has a disability if he or she has a physical or mental impairment which has a substantial and long term adverse effect on his or her ability to carry out normal day-to-day activities.

It is a long-term effect if it has lasted or is expected to last at least 12 months; it is likely to last for the rest of the person’s life; or it is likely to reoccur if in remission.

It will affect normal day to day activities if it affects:

• mobility (for example difficulty going up or down stairs)
• manual dexterity (for example pressing buttons on keyboards extremely slowly)

• physical co-ordination (for example inability to place an object accurately without assistance or hard concentration)
• continence
• ability to lift, carry or move everyday objects
• ability to concentrate
• memory ability to learn or understand (for example incapability to remember names of familiar colleagues or customers etc.)
• perception of the risk of physical danger

The definition includes people who suffer cancer, multiple sclerosis, muscular dystrophy and HIV who may not have an existing impairment but medical evidence shows that their condition is likely to result in an impairment which will become substantial.

What does not constitute a disability?
• Addiction to alcohol, nicotine or any other substance
• A tendency to set fires or sexually/physically abuse others
• Exhibitionism and voyeurism
• Hay fever

Do I have to employ a certain number of disabled people?
No, but the emphasis is on ensuring that all procedures do not discriminate against disabled employees.

What areas might I be discriminating in?
It is unlawful to discriminate or have any procedures which discriminate from the moment a vacancy arises and then throughout employment.  Discrimination may arise in the following areas;

Prior to employment:
• job adverts
• job descriptions
• terms and conditions offered
• the offer itself

During employment :
• in the terms and conditions given to employees 
• in relation to opportunities, promotion, or other benefits, facilities or services
• the reasons for dismissal
• if, following a claim under the act, the employee is victimised

Do I have a duty not to discriminate against agency workers?
Self-employed workers, contract workers and seasonal workers are all awarded the same protection.

What constitutes discrimination?
An employer discriminates against a disabled person if he or she:

• treats them less favourably (direct discrimination) and/or
• fails to make reasonable adjustments (indirect discrimination)

Direct Discrimination
There are two types of direct discrimination claims that could be made under the Act.
*  Direct disability discrimination
*  Direct disability-related discrimination.

Direct disability discrimination
This occurs where a disabled person, with the same abilities as a non-disabled person, is treated less favourably purely because they are disabled and for no other reason.

For example, two applicants apply for the position of a Chef, and one has a facial disfigurement.  Both are perfectly able to carry out the job but the disabled applicant is refused the job because of the disfigurement.  This is direct disability discrimination.  Direct disability discrimination can never be justified.

Direct disability-related discrimination
This occurs when a person is treated less favourably, in like-for-like circumstances, than another person to whom that reason relating to a disability does not apply, was or would have been treated. The focus here is on the reason relating to the disability and how the disability manifests itself.

For example, a woman who applies for a job as a lorry loader for a large food chain has severe back pain and cannot bend or carry heavy objects - this is material to the circumstances as it substantially affects her ability to carry out the essential requirement of the job - packing and carrying heavy loads.  No possible adjustments can be made to remove the disadvantage and in these circumstances, refusal to employ her for a disability-related reason may well be justified.

Reasonable adjustments
It is also discrimination if the duty to make reasonable adjustments is not met. This requires employers to take reasonable steps to ensure that disabled persons are not placed at a substantial disadvantage. The law previously provided that it was possible for an employer to justify the failure to make reasonable adjustments. However, this is no longer the case and an employer can now only use the defence that it was not reasonable to make the adjustment in the first place (see below)

Do I have to make alterations to premises?
The Act imposes a duty to make reasonable adjustments to accommodate disabled people to help overcome the practical effects of their disability both in terms of applying for and completing a job. This duty is only imposed where an employer knows (or could reasonably be expected to know) that a person is disabled and is likely to be placed at substantial disadvantage. 

An employer must do all he could reasonably be expected to do to find out whether an employee is disabled so consider:

• using the application form and induction form for new joiners to specifically ask about disability requirements
• using appraisal systems to specifically provide employees with an opportunity to notify the employer in confidence of  any disability.

Reasonable adjustments: Alternations to working arrangements and physical premises
The duty is to take such steps as are reasonable to prevent any arrangements made by the employer, or any physical features of the employer’s premises from placing a disabled applicant or employee, at a substantial disadvantage compared to those applicants or employees who are not disabled. The disadvantage which the employee faces must be substantial, for example, a doorway need not be widened if there is an alternative route which is an easy alternative.

Examples of adjustments;
• adjustments to premises
• allocating work to someone else
• transfer to fill an existing vacancy
• alter working hours
• assign to a different place of work
• allow absence for treatment
• training
• acquire or modify equipment
• modify instruction or reference manuals
• modify procedures for testing
• provide readers or interpreters
• provide supervision

Reasonableness of the adjustment
There is no financial limit on the amount which an employer may have to spend on an adjustment, although cost will be an important factor in assessing the reasonableness of an adjustment.

There are several other factors which will determine whether or not it is reasonable to make any adjustments to the premises that might help a disabled person. Consideration should also be given to whether the adjustments will actually assist the employee, whether the changes are practical, and whether the business has resources available to make the changes.

What are the penalties?
A person may present a complaint to an employment tribunal.  If the claim is well-founded, the tribunal may:
• make a declaration as to the rights of the complainant
• order the employer to pay compensation (there is no upper limit and compensation may include compensation for injury to feeling)
• recommend that the employer take action appearing to the tribunal to be reasonable in the circumstances for the purpose of reducing the adverse effect on the complainant.

Doesn’t this only apply to big companies?
Small business (those employing 15 persons or less) used to be exempt from the Act.  However, new legislation in October 2004 removed this exemption.

Jonathan Exten-Wright is a partner in the Employment department of DLA Piper and Jessica Leather is a solicitor. jonathan.exten-wright@dlapiper.com / jessica.leather@dlapiper.com.


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