1 October 2004 is a date which employers are probably anticipating with a mixture of uncertainty and concern. A good deal of employment legislation is coming into effect on this date, not least of which is that relating to disability discrimination. The Disability Discrimination Act 1995 (Amendment) Regulations (“the Regulations”) make some significant changes to the law in this area, and a lack of awareness of these changes could cost an employer dear…..
The current obligations on employers under the Disability Discrimination legislation
The Disability Discrimination Act 1995 (the “DDA”) provides the framework governing employers’ responsibilities in this area, most of which has been in force since 1996. The basic position at present is that it is unlawful for employers with more than 15 employees to discriminate against employees suffering from a disability. Both applicants for jobs and existing employees are entitled to protection from discrimination on the grounds of disability, so employers must take care when advertising and recruiting for jobs, ensure they monitor the way in which they treat their employees during the life of the employment contract, and consider the reasons for which, and manner in which, they dismiss employees.
The obligation not to discriminate is broken down into two discrete unlawful acts. The first is that if an employee has received “less favourable treatment” for a reason connected with his disability then he may have a claim. In order to defeat this claim, the employer must then show that the less favourable treatment was justified by a reason which was material to the circumstances and substantial (for example not hiring a person with epilepsy to fill a position involving the operation of dangerous machinery). If the employer cannot justify the treatment then it will constitute unlawful discrimination.
The second duty on an employer relates to making changes in order to accommodate the disabled employee. If any arrangements or physical features of the employer’s premises place the disabled employee at a substantial disadvantage in comparison to his colleagues who do not have that disability, then the employer is under a duty to make reasonable adjustments to remove that disadvantage for the disabled employee. If the employer fails to comply with this duty, he will be unlawfully discriminating against the employee, unless, as above, he can justify the failure to make those adjustments for a reason which is material to the circumstances and substantial.
The Changes due to come into force on 1 October 2004
The Regulations which are coming in at the beginning of October will make substantial changes to an employer’s duties:
Removal of the exemption for small businesses – the obligations detailed above will apply to all employers, not only those employing more than 15 people. Small businesses will need to ensure that they are fully up to speed with their responsibilities and have made any necessary changes to their premises and procedures.
Removal of the justification defence for direct discrimination – As the law currently stands there is no distinction drawn between direct discrimination and indirect discrimination. An example of direct discrimination would be not interviewing someone for a job purely because they were dyslexic. An example of indirect discrimination, on the other hand, is disciplining an employee who has had to take time off work to attend treatment for breast cancer – the reason for the disciplinary would not be the cancer but the absence from work. The new Regulations provide an explicit definition of direct discrimination and make it automatically unlawful (it will no longer be permissible to raise the justification defence to a claim for direct discrimination). However, it will still be possible to justify indirect discrimination if the reason an employer gives is material and substantial. Employers, however, will have to tread more carefully, for if they are faced with claims of direct discrimination from October, their only way to defeat the claim will be to show the discrimination did not occur.
Changes have taken place with regards to the enforcement of the DDA – the Regulations amend the section of the DDA relating to the burden of proof. From October, if an employee can prove facts which set out a case of disability discrimination, the onus is then on the employer to satisfy the tribunal that the treatment was not discriminatory. Once the employee has made his case, therefore, the employer is effectively guilty unless he can prove himself innocent.
The Duty to make adjustments has been extended – Whereas now the duty to adjust only applies to “arrangements” put in place by the employer which place a disabled employee at a disadvantage, come October the duty will apply to any “provision, criterion or practice” applied by or on behalf of an employer. This clearly widens the scope of the duty, and employers will be more at risk of discriminating purely because more of their procedures and practices will be under the microscope.
The scope of the DDA will be extended – for example it will now apply to partners (in relation to a partnership), to barristers, the police, prison officers, and employees who work wholly outside Great Britain (if certain criteria are fulfilled).
There are various other changes to be implemented by the Regulations, including:
* a definition of harassment has been introduced and harassment on the grounds of disability will now be expressly prohibited in the legislation;
* an 8-week time limit for employers to complete a Disability Discrimination Questionnaire will be implemented, after which a tribunal may draw adverse inferences; and
* discrimination on the grounds of disability against an employee after the termination of his employment will be unlawful.
The changes have the effect of bringing disability discrimination legislation in line with similar provisions in the legislation relating to sex and race discrimination.
These changes will go live in a week’s time. At the same time, any organisations providing services to the public come under a duty to take steps to remove features of their premises which hinder a disabled person using their services. And looking ahead, on the horizon are more proposed developments, in the form of the draft Disability Discrimination Bill,. These cover such issues as the inclusion of people with HIV, cancer and multiple sclerosis in the definition of “disabled” from the point of their diagnosis, an obligation on the public sector to promote equality of opportunity for disabled people, and the outlawing of discriminatory advertisements.