briefing1

DISABILITY DISCRIMINATION ACT 1995

Introduction
T his briefing looks at the new law relating to the employment of disabled people and what union representatives need to know in order to help eliminate discrimination against disabled workers.

There are 3.8 million disabled people of working age in Great Britain. Only 1.2 million of those are in employment. This is an employment rate of 32% compared with 76% of non-disabled workers.
The Disability Discrimination Act 1995 (DDA) came into force on 2 December 1996. It represents a fundamental change in the law relating to the employment of disabled workers. However it has not met the standards demanded by trade unions.
The previous law relating to disabled workers has been repealed.
This means that the quota scheme for the employment of disabled workers no longer exists.

What Is Disability?
Section 1(1) DDA says that a person has a disability "if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities"

Long-term affects
The effect of an impairment is long-term if it has lasted or is likely to last for at least 12 months, or is likely to last for the rest of the person's life. This would cover someone in the final stages of a terminal disease such as cancer or AIDS.

Impairment
The legislation does not define impairment although a mental impairment must be a recognised medical condition. There are, however certain exceptions:

Addictions to alcohol, tobacco or non-prescribed drugs. The effects of an addiction may be a disability though.
Some personality disorders such as a tendency to start fires, to steal or to physically or sexually abuse of others.

Severe Disfigurement
Severe disfigurement is included as a disability except when caused by tattoos and body-piercing.

Normal day-to-day activities
An impairment is only taken to effect a person's ability to carry out normal day-to-day tasks if it affects one of the following:

Mobility.
Manual dexterity.
Physical co-ordination.
Continence.
Ability to lift, carry or move everyday objects.
Speech, hearing, eye sight.
Memory, ability to concentrate, learn or understand.
The perception of risk or physical danger.

Substantial Effect
The effect of the disability must also be substantial - i.e. not trivial. Someone with moderate dyslexia may be covered because the effect could be substantial.

Progressive Diseases
Those with progressive diseases such as HIV+ only become disabled when they show symptoms of the disease. Thus the stigma of having the disease is not covered.

Who Can Use This Act?
Only a disabled person, including an employee and job applicant, can bring proceedings under the Act (except for the victimisation provisions). This means that an employer may discriminate in favour of a disabled worker because non - disabled people cannot use the Act. Complaints against employers go to Industrial Tribunals.

Small Employers
One of the most controversial aspects of the Act is the fact that employers who employ less than 20 workers are excluded from the Act. This element of the legislation is one that might be amended by an incoming Labour Government. Codes of Practice and Guidance notes will cover small employers but are not legally enforceable.

Employees Who Became Disabled
There is one very important point that should be borne in mind by employers and the union reps. Any existing employee may become disabled whilst in employment. In the past many such people faced more-or-less forced retirement on medical grounds but the DDA requires a different response - the employer will have to consider making adjustments to the work place.

Forms Of Discrimination
There are two forms of discrimination, both of which the employer may be able to justify.

1. Less Favourable Treatment
Under s.5 DDA a person discriminates against a disabled person if "for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and cannot show that the treatment in question is justified."

A reason which relates to a disability might be objection to the use of a wheelchair.

2. Failure to comply with duty to make adjustments
Under s.6 DDA an employer discriminates against a disabled person if he fails to make adjustments imposed on him in relation to the disabled person.

Justified Discrimination
Less favourable treatment and a failure to comply with the duty to make adjustments can only be justifies if the reason for it is both material to the circumstances of the particular case and substantial.

Reps should appreciate that the circumstances of the particular case refer not only to the job but also to the individual. A similar disability may affect different people in different ways. Employers are not entitled merely to consider in general terms whether someone with a particular disability could carry out certain work but must actively consider the ability of the individual to do the work in question. A failure to do so may involve a breach of the Act.
Materiality refers to the employer's need to carry out the work safely and effectively.
The reason must also be substantial. In other words there must be some basis in fact provable by evidence for the justification. Unsubstantiated theories or opinions are not enough. Reps should ask for the evidence necessary.

Duty On The Employer To Make Adjustments
This is potentially the most far-reaching part of the Act and the one which reps should become familiar. Section 6 imposes on employers the duty to consider making adjustments to cater for a disabled person. Reps will have the opportunity to monitor this and make representations etc.

EXAMPLES

An employer could probably not justify dismissing a disabled worker because they are sometimes off work due to their disability, if the amount of time is little more than what the employer accepts as sick leave for other employees.

An employer could not justify refusing to promote an employee who uses a wheelchair, solely because that person's workstation would not be wheelchair accessible, if by rearranging the furniture the work station could be made accessible.

There are two elements to the duty. The first concerns arrangements made by an employer in respect of the organisation of work, or second any physical feature of the premises which places the disabled person at a substantial disadvantage.

Section 6(3) of the Act gives some examples of the employer's duty:

making adjustments to premises - e.g. widening a doorway for wheelchair access.
Altering the disabled person's working hours.
Assigning the person to a different place of work.
allowing the person to be absent for rehabilitation, assessment or treatment.
Acquiring and modifying equipment.

Performance-Related Pay
Regulations under the Act make special provision for those working under a performance-related pay scheme such as a piece-rate scheme.

Providing the scheme is applied equally to all workers the employer is under no obligation to adjust the scheme itself in favour of the disabled person.

The duty does apply if the arrangements or physical features causes reduced performance by the disabled person.

Trade Unions
Reps should be aware that the Act will apply to trade unions. It makes it unlawful to discriminate against a disabled person in respect of:

Acceptance for membership.
Access to benefits.
Deprivation of membership.
Any other detriment.

CHECK LIST FOR REPS

Does the employer's Equal Opportunities policy include disability?

Does the policy address the needs of disabled workers, regardless of whether they fit the tight definition of the Act?

Does the employer have a proper auditing system? Remember that it is for the individual to decide whether he/she is disabled - not for the Rep.

Does the employer have proper monitoring procedures?

Do training courses include disability awareness?

Does the employer allow leave for rehabilitation?

For further information about redundancy contact your union office

A service from The General Federation of Trade Unions
Central House
Upper Woburn Place
London WC1H OHY