Disability discrimination: October 2004 changes

This week Amy Clark of Osborne Clarke begins a series of articles on recent and future changes to disability discrimination law, with a summary of the changes to the Disability Discrimination Act 1995 that came into force on 1 October 2004.

Introduction

On 1 October 2004, the Disability Discrimination Act 1995 (Amendment) Regulations 2003 were brought into force, and made major changes to the Disability Discrimination Act 1995. The changes affected employment and also the provision of goods, facilities, services and premises.

The changes were designed to implement the European Employment Framework Directive so far as it relates to disability discrimination. They also took into account recommendations from the Disability Rights Task Force's report From Exclusion to Inclusion - A Report of the Disability Rights Task Force on Civil Rights for Disabled People.

The new concept of direct discrimination

The Disability Discrimination Act 1995 (Amendment) Regulations 2003 introduced a new concept of direct discrimination. There are now four types of disability discrimination.

Direct discrimination: A person directly discriminates against a disabled person if 'on the grounds of the disabled person's disability, he [or she] treats the disabled person less favourably than he [or she] treats or would treat a person not having that particular disability whose relevant circumstances, including his [or her] abilities, are the same as, or not materially different from, those of the disabled person'.

This will cover a situation where the reason for the less favourable treatment is the disability itself.

Direct discrimination is always unlawful and can never be justified.

Discrimination for a reason related to a person's disability: A person discriminates against a disabled person if 'for a reason which relates to the disabled person's disability, he [or she] treats him [or her] less favourably than he [or she] treats or would treat others to whom that reason does not or would not apply'.

It is possible to justify disability-related discrimination provided that the reason for the treatment is both material to the circumstances of the particular case and substantial. This is an objective test. However, it will not always be possible to justify disability-related discrimination, even if there is a material and substantial reason for it, if the employer has failed to consider reasonable adjustments. It will be necessary to consider each case individually.

Failure to make reasonable adjustments: A failure to comply with the duty to make reasonable adjustments amounts to disability discrimination. It cannot be justified.

Victimisation: It is unlawful for an employer to victimise a person (whether or not he or she is disabled) because that person or another person has brought a complaint of disability discrimination.

Duty to make reasonable adjustments

Prior to 1 October 2004, an employer was under a duty to make reasonable adjustments where any 'arrangement imposed by the employer or physical feature of the employer's premises' placed a disabled employee at a disadvantage in comparison with a non-disabled employee.

The duty to make reasonable adjustments has been widened so that an employer now has a duty to make reasonable adjustments to any 'provision, criterion or practice' applied by the employer or to any physical feature of the employer's premises, if such provision, criterion, practice or physical feature places a disabled employee at a substantial disadvantage in comparison with a non-disabled employee.

The Disability Discrimination Act 1995 Code of Practice: Employment and Occupation (on the Disability Rights Commission website) makes it clear that the duty to make reasonable adjustments applies to all stages of the employment relationship from recruitment to termination. A failure to make reasonable adjustments can no longer be justified - the key issue now is whether the adjustment is 'reasonable'.

Harassment

The Disability Discrimination Act 1995 (Amendment) Regulations 2003 introduced a freestanding right to claim harassment. Previously a disabled person had to claim harassment on the basis that the treatment had 'subjected [him or her] to any other detriment', which was an unnecessarily complicated route to follow.

Harassment now arises where, for a reason relating to the person's disability, another person engages in unwanted conduct that has the purpose or effect of:

Harassment will arise if the conduct in question had one of the effects above even if the harasser did not intend the conduct to have that effect. The Disability Discrimination Act 1995 Code of Practice: Employment and Occupation gives an example of a woman suffering from depression whose manager often asks how she is feeling. She asks him not to do this in front of her colleagues, but he persists. This type of conduct could be harassment.

Removal of the small employer exemption

Prior to 1 October 2004, employers with fewer than 15 employees were exempt from the employment provisions of the Disability Discrimination Act 1995. However, the Disability Discrimination Act 1995 (Amendment) Regulations 2003 removed this exemption and the requirements of the Act now apply to all employers irrespective of size.

Former employees

Following the 1 October 2004 changes, the Disability Discrimination Act 1995 now specifically covers issues arising post termination of employment. It is unlawful once employment comes to an end for an employer to:

provided that such conduct arises out of the employment and is closely connected to it.

This will usually relate to an unfavourable reference (given due an employee's disability) or issues arising in relation to an internal appeal procedure. There is no time limit in relation to the obligation not to discriminate against former employees: the claim must be brought within three months of the discriminatory act but the act itself could take place some time after the dismissal.

The duty to make reasonable adjustments also applies to former employees. The Disability Discrimination Act 1995 Code of Practice: Employment and Occupation states that this may arise in relation to issues such as membership of a company's social club. If the club premises are such that it is impossible or unreasonably difficult for the person to attend due to his or her disability then the employer will have a duty to make reasonable adjustments.

Advertisements

The Disability Discrimination Act 1995 (Amendment) Regulations 2003 made it unlawful to publish a discriminatory advert, ie one that might reasonably be understood to indicate that an individual suffering from a disability would not be successful in applying for the position. An example of an unlawful advert would be one that states that a driving licence is required for a job where the job does not involve a great deal of driving. However, adverts will not be discriminatory if it is lawful to apply a certain criterion to a particular job, for example the requirement to hold a driving licence for a lorry driver position.

Only the Disability Rights Commission, and not individuals, can bring proceedings in respect of a discriminatory advert.

Burden of proof

The Disability Discrimination Act 1995 (Amendment) Regulations 2003 shifted the burden of proof in relation to disability discrimination to bring the Disability Rights Act 1995 into line with the other discrimination legislation on this point.

The claimant is required to prove that he or she suffers from a disability and that he or she has a prima facie case of disability discrimination. If the claimant can establish this, the tribunal 'shall' uphold the complaint unless the respondent proves that it did not act in the way set out by the claimant.

Other employment-related amendments

Other amendments to the Disability Discrimination Act 1995 on 1 October 2004 included the extension of disability discrimination protection to cover a number of previously excluded occupations, largely in the public sector. Members of the armed forces are still excluded, but the Act now protects remunerated office holders (including company directors), barristers, barristers' pupils and partners in partnerships.

The Disability Discrimination Act 1995 was also extended to apply to employees on vocational training and practical work experience.

A change to the definition of dismissal in the Act means that it now explicitly includes constructive dismissal.

Next week's article will consider forthcoming employment-related amendments to the Disability Discrimination Act 1995 by the Disability Discrimination Act 2005.

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