Disability discrimination: forthcoming changes
This week Amy Clark of Osborne Clarke continues her series of articles on recent and future changes to disability discrimination law with a look at some of the changes to be introduced by the Disability Discrimination Act 2005.
Last week's article set out a summary of the changes to the Disability Discrimination Act 1995 that were brought into force on 1 October 2004. However, a further Disability Discrimination Bill was published in draft form in December 2003 and was then subject to scrutiny by a joint cross-party committee, which reported in May 2004. Some of the recommendations in this report were incorporated into a further piece of disability discrimination legislation, the Disability Discrimination Act 2005, which will be brought into force in stages, beginning on 5 December 2005.
Changes relevant to employment
The Disability Discrimination Act 2005 amends the Disability Discrimination Act 1995 in a number of important ways that will impact on employers. These include:
the provision of protection for people who have HIV, multiple sclerosis and cancer from the date of diagnosis, rather than from the point that the disease has an effect on their ability to carry out day-to-day activities;
the removal of the requirement that a mental illness be 'clinically well recognised';
making it unlawful for third parties such as newspapers to publish or cause to be published a discriminatory advertisement inviting applications for a job, training or other relevant benefit;
the creation of a new duty to promote disability equality for the public sector, paralleling the existing race equality duty.
The remainder of this article concentrates on the issues of point of protection diagnosis and mental illnesses.
Point of diagnosis protection
The Disability Rights Commission estimates that extending the Disability Discrimination Act 1995 to cover people with HIV, multiple sclerosis and cancer from the point of diagnosis, combined with the removal of the requirement that a mental illness be clinically well recognised (see below), will bring at least an additional 175,000 people within the coverage of the Act.
The rationale for this change is that HIV, multiple sclerosis and cancer can stigmatise sufferers from the point of diagnosis, and that diagnosis of one of these conditions is also likely to have a massive personal impact on the affected individual.
The Government has, however, retained the power to make regulations prescribing that certain cancers that are relatively minor and easily treatable will not attract protection from the point of diagnosis. It has suggested that it will use these powers to restrict coverage in respect of people diagnosed with: basal cell carcinomas; most squamous cell carcinomas of the skin; Bowen's disease; in situ skin cancers; and in situ cancer of the cervix uteri. The Disability Rights Commission disagrees with these proposals on the basis that stigmatisation and discrimination can follow from the point of diagnosis of any cancer. It also asserts that even nominally minor cancers can have very significant consequences for people's lives and that these exclusions will add an unwelcome element of uncertainty for sufferers of these cancers. However, the Government has rejected this viewpoint and retained its exclusion powers.
Mental illnesses
Removal of 'clinically well-recognised' requirement: The removal of the 'clinically well-recognised' requirement has caused much debate, and is probably the one that alarms employers most.
For many employers the amendment raises visions of disgruntled employees alleging that they are stressed and therefore have a disability, with the employer having no form of defence because stress cannot be disproved. If a person says that he or she is stressed, and suffering from a lack of concentration, poor memory, etc, it seems that there is little that can be said to counter this.
However, the joint committee recommended this change, and it is backed by the Disability Rights Commission and by support groups for mental health service users such as Mind.
The Disability Rights Commission states that people with serious, even life-threatening, mental conditions, have been excluded from coverage under the current test by the requirement that a condition be clinically well recognised. Mental health disorders frequently defy conventional diagnoses, so a person's life may well be very significantly disrupted by a disorder, but he or she may still not be able to prove that it is a clinically well-recognised disease.
Sufferers themselves may not wish to have a formal diagnosis, feeling that they will then be burdened with a label leading to stigmatisation and discrimination. Medical practitioners may also take some time to diagnose a mental condition formally, for a whole variety of reasons. A diagnosis may also change over the course of time. As a result, sufferers can have major problems showing that they meet the current requirements. It is also argued that the requirement that a mental health condition be clinically well recognised before a sufferer can fall within the definition of 'disabled' places a more onerous burden on those with a mental impairment than those with a physical disability, and that this in itself is discriminatory.
Having heard all the arguments, the Government has decided to go ahead and remove the requirement that a mental impairment be clinically well recognised. However, a sufferer will still have to show that the condition has a substantial and adverse effect on his or her day-to-day activities, and the effect has lasted or is likely to last for 12 months or more. Case law will show exactly how the courts go on to interpret this, but worried employers can take comfort from the 'substantial' and 'long-term effect' requirements. Short-term stress over a particular incident will still not qualify as a disability.
Depression: There was a recommendation that people experiencing separate periods of depression totalling six months over a two-year period should be considered to meet the 'long-term' requirement in the definition of disability. This recommendation was made on the basis that bouts of depression usually last for up to six months rather than 12 - indeed the International Classification of Diseases states that the median length of a depressive episode is six months. However, the Government has rejected this recommendation. As a result depression will still have to satisfy the 12-month duration requirement, although there will no longer be the need to show that it is a clinically well-recognised condition.
Review of definition of disability: The joint committee also recommended that the list of normal day-to-day activities in the Disability Discrimination Act 1995, Schedule 1 should be amended to incorporate issues such as 'the ability to care for oneself', 'the ability to communicate and interact with others' and 'perception of reality'. At the moment people with a mental health condition have to show that it affects their 'memory or ability to concentrate, learn or understand' or their 'perception of the risk of physical danger'. These are the only activities listed in Schedule 1 that relate specifically to mental conditions.
It is felt by many that this is too restrictive and creates unnecessary difficulties for those genuinely affected by a mental health condition that does not fall neatly within these boundaries. The Disability Rights Commission also thinks that the focus of the definition of disability should change to include the negative treatment and barriers that disabled people face. In response to these and other concerns, the Government is reviewing the statutory guidance on the definition of disability. The Disability Rights Commission has also been asked to consider and consult on the current definition of disability, and to determine whether changes are required.
Next week's article will answer frequently asked questions on disability discrimination and the changes being brought into force.
Amy Clark is solicitor in the employment department at Osborne Clarke (Amy.Clark@osborneclarke.com)
Further information on Osborne Clarke can be accessed at www.osborneclarke.com
