Disability discrimination: frequently asked questions

This week Amy Clark of Osborne Clarke answers some frequently asked questions on disability discrimination and the recent and forthcoming changes to the law.

One of our employees has been diagnosed with cancer, but is not suffering from any symptoms at this stage. Is she covered by the Disability Discrimination Act 1995?

She will be covered by the Disability Discrimination Act 1995 at the moment only if she can establish that her condition has a substantial adverse effect on her ability to carry out normal day-to-day activities and is likely to last for 12 months or more, which is unlikely if she is not suffering from any symptoms.

However, it is likely that she will be covered from 5 December 2005 as this is the commencement date for the Disability Discrimination Act 2005, section 18, which extends the scope of 'disability' to cover most forms of cancer, HIV and multiple sclerosis from the point of diagnosis.

It will no longer be necessary for an employee to show that he or she is suffering from any symptoms or that the condition has a substantial adverse effect on his or her daily activities. In order to decide whether this particular employee will be covered it will be necessary to find out from what type of cancer she is suffering as some types of cancer that do not require substantial treatment will not be covered.

One of our employees has been signed off work suffering from depression, which he states is caused by work-related stress. Is he covered by the Disability Discrimination Act 1995?

At present, for the employee to be covered by the Disability Discrimination Act 1995 he would need to show that he was suffering from a 'clinically well-recognised' condition. There are guidelines for doctors to consider when diagnosing a patient with 'clinical depression'. In order for it to be covered by the Act it would also be necessary for the employee's condition to have a substantial and long-term adverse effect on his daily activities.

However, the Disability Discrimination Act 2005 removes the requirement for a mental illness to be clinically well recognised. Therefore, it will be easier for employees to succeed in disability discrimination claims in relation to depression from 5 December 2005, although they will still need to show that their condition has a substantial adverse effect on their daily activities and is likely to last for 12 months or more.

An employee has made inappropriate comments to another employee because her husband is disabled with the result that she is threatening to claim disability discrimination. Can she do this?

No. The employee in this situation is not covered by the Disability Discrimination Act 1995. While the Government considered extending protection to a person associated with a disabled person via the Disability Discrimination Act 2005, after debate and consultation it rejected this proposal.

You do, however, have the normal duty of trust and confidence towards the employee and, as part of this, should take steps to prevent the other employee making further inappropriate comments. Otherwise the comments could form the basis of a grievance or a constructive unfair dismissal claim.

We advertised for an administrative assistant, a position which involves using a computer. One of the applicants was blind and we did not offer her the job because we assumed that she could not use a computer. Can she claim disability discrimination?

Yes. The applicant suffered less favourable treatment due to your assumption that she could not use a computer. This is likely to be direct discrimination because the reason that the assumption was made was on the grounds of the applicant's disability. Without such an assumption, you would have considered the applicant's individual abilities.

Is it possible to justify disability discrimination?

The changes to the Disability Discrimination Act 1995 that came into force in October 2004 changed the law relating to justification. Whether or not less favourable treatment can be justified depends on whether it is direct discrimination or disability-related discrimination.

Direct discrimination occurs where a person suffers less favourable treatment 'on the ground of' his or her disability. It is never possible to justify direct discrimination and it will always be unlawful. Disability-related discrimination occurs where the reason for the less favourable treatment is 'related to' the individual's disability. It is possible to justify disability-related discrimination where the reason for the less favourable treatment is material and substantial to the circumstances of the case (although it is not possible to justify less favourable treatment if it arises because the employer has a duty to make reasonable adjustments, but fails to comply with that duty).

A useful way of establishing what kind of discrimination an individual may have suffered is to focus on the person with whom the disabled person should be compared in considering whether he or she was treated less favourably. When considering whether a disabled person has suffered direct discrimination his or her treatment must be compared with that of someone who does not have the same disability. This could be either a non-disabled person or a person with a different disability. In determining whether a person has been discriminated against for a 'reason related to' his or her disability the employer's treatment of the disabled person must be compared to its treatment of a person to whom the disability-related reason does not apply. The comparator may be disabled or non-disabled.

The example used in the Disability Discrimination Act 1995 Code of Practice: Employment and Occupation (on the Disability Rights Commission website) is a disabled man who is dismissed for taking six months' sick leave as a result of his disability. The employer has a policy of dismissing all employees after six months' sick leave. The comparator for direct discrimination would be a person not having the particular disability, but who has taken six months' sick leave. As such a person would also have been dismissed, there is no direct discrimination.

In respect of disability-related discrimination the disability-related reason for the less favourable treatment of the disabled person is the fact that he has taken six months' sick leave. The correct comparator is a person to whom that reason does not apply, ie someone who has not taken sick months' sick leave. Unless the employer can show that the less favourable treatment is justified, it will amount to disability-related discrimination because the comparator would not have been dismissed.

When does the duty to make reasonable adjustments arise?

An employer has a duty to make reasonable adjustments where a 'provision, criterion or practice' applied by or on behalf of the employer or a physical feature of the employer's premises places a disabled person at a substantial disadvantage in comparison to a non-disabled person.

A 'provision criterion or practice' includes selection and interview procedures, and the terms, conditions or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or provided to employees. The Disability Discrimination Act 1995 Code of Practice: Employment and Occupation (PDF format, 773K) (on the Disability Rights Commission website) sets out a number of examples, including making an offer of employment on a full-time basis only and providing car parking spaces to senior managers only.

Is it possible to justify a failure to make a reasonable adjustment?

No. The changes made to the Disability Discrimination Act 1995 in October 2004 removed the ability for an employer to justify not making a reasonable adjustment where the duty arises. Instead, it is necessary to consider which adjustments would be 'reasonable'.

Issues that will be taken into account when considering whether an adjustment is reasonable include the effectiveness of the step in preventing the disadvantage, the size and nature of the business, the financial implications for the business and the availability of financial or other assistance with respect to taking the step in question.

What type of adjustments should be made?

The type of adjustments employers may have to make include, but are not limited to, making adjustments to premises, reallocating duties, altering the hours or place of work, arranging additional training (for both disabled and non-disabled employees), allowing the disabled person to be absent during work for treatment, rehabilitation or assessment, acquiring or modifying equipment and providing supervision or any other support.

A common misunderstanding is that an employer must create an alternative position for a disabled employee as part of the duty to make reasonable adjustments. However, the employer must consider whether the employee could fill a current vacancy (even if this involves additional training or a demotion), particularly if there are no other reasonable adjustments that could be made to allow the employee to remain in employment. If such adjustment is not made, the employer would need to show that it was not reasonable in the circumstances.

Does an employer need to be aware of an employee's disability in order for the employee to be covered by the Disability Discrimination Act 1995?

It is usually the case that direct discrimination will occur only where the employer is aware that a person is suffering from a disability. However, it can sometimes occur even though the employer is unaware of the person's disability. The Disability Discrimination Act 1995 Code of Practice: Employment and Occupation (on the Disability Rights Commission website) provides an example where an employer advertises a promotion internally to its workforce. The job description states that people with a history of mental illness would not be suitable for the post. An employee who would otherwise be eligible for promotion has a history of mental illness but the employer is unaware of this. The employee would be able to claim direct discrimination in relation to his promotion opportunities.

An employer has a duty to make a reasonable adjustment only if it knows or could reasonably be expected to know that the employee has a disability and is likely to be placed at a substantial disadvantage by its working practices.

A difficult situation often arises if an employee tells the employer's occupational health department that he or she suffers from a disability but asks that the information be kept confidential and not be disclosed to management. In a recent case, Hartman v South Essex Mental Health and Community Care NHS Trust [2005] IRLR 293 CA, the Court of Appeal held that disclosure to an occupational health department in such circumstances did not fix the employer with knowledge of the disability. However, it would be necessary to consider the facts of each individual case, particularly as the Disability Rights Commission has suggested that disclosure to an occupational health department can fix the employer with knowledge of the person's disability.

Next week's article will be a case study on disability discrimination.

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