The Law on Disability Discrimination
1 This is the second in a series of five brief guides to discrimination in employment. They are intended as introductory handouts for trade union representatives and people in the workplace. Their aim is to set out the main provisions which protect and enhance the equal treatment of men and women at work. Since discrimination law has become increasingly complex, the particular circumstances of a case may have a significant impact on the prospects of success and these Guides are not a substitute for legal advice except in the clearest of cases.
2 Often driven by legislation from Europe, the law now regulates discrimination by age (Guide 1), disability (Guide 2), race (Guide 3) and sex (Guide 4) as well as sexual orientation and religion or belief (Guide 5). It includes maternity and parental rights, gender assignment and marital status.
3 The increasing emphasis on eliminating discrimination is underlined by the fact that in October 2007 a single equality body, the Commission for Equality and Human Rights, took over the functions of the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission. The new Commission has wide powers to monitor the law, conduct inquiries and investigations, issue codes of practice, enforce compliance of statutory duties and will also assume new powers over age, religion and belief and sexual orientation.
4 Whilst these guides are restricted to discrimination in employment, the legislation also deals with discrimination more widely in education, planning, by public authorities and in the provision of goods, facilities, services and premises.
5 The following Acts of Parliament are the most prominent of those that make discrimination unlawful and either prohibit activities or create rights to achieve that aim.
a) Equal Pay Act 1970 (“EPA”)
b) Sex Discrimination Act 1975 (“SDA”)
c) Race Relations Act 1976 (“RRA”)
d) Disability Discrimination Act 1995 (“DDA”)
e) Employment Equality (Religion or Belief) Regulations 2003 (“RBR”)
f) Employment Equality (Sexual Orientation) Regulations 2003 (“SOR”)
g) Civil Partnership Act 2004 (“CPA”)
h) Employment Equality (Age) Regulations 2006 (“AR”)
6 Many of these statutory requirements came into force later than the date they were enacted and others have been amended, often extensively, since their introduction. The Acts are referred to in the Guides by their initials.
7 There are some important distinctions between these Acts in the way they regulate discrimination but generally the legislation prohibits in four main ways:
a) Direct discrimination
b) Indirect discrimination
8 In addition, for instance, the DDA imposes obligations on employers to make reasonable adjustments for people with disability and the SDA and AR make it unlawful to treat anyone less favourably if they refuse an instruction to discriminate on grounds of age.
9 And whereas under the SDA and RRA there can be no justification of direct discrimination, the AR does permit the justification of direct discrimination.
10 These and other matters are dealt with more fully within each Guide.
11 As to jurisdiction, cases concerning discrimination in employment can only be brought in Employment Tribunals.
12 The remedies for unlawful discrimination are similar under all the relevant legislation. Where a complaint is upheld, and it is just and equitable to do so, an employment tribunal must make:
a) a declaration about the rights of the complainant;
b) an order to pay compensation;
c) a recommendation that the respondent takes action to reduce the adverse effect of its discriminatory treatment.
13 There is no cap to the damages that an employment tribunal can award in discrimination cases and may include past loss (of earnings, benefits and pension for example), future loss, injury to feelings, personal injury, aggravated damages, exemplary damages and interest.
14 With some exceptions, the statutory dispute resolution procedures apply to all discrimination cases and a failure to comply with them by either the employee or the employer may lead to an award being decreased or uplifted by anything up to 25%.
15 The Human Rights Act 1998 (“HRA”) gives domestic effect to the European Convention on Human Rights (“ECHR”) and makes it unlawful for public authorities to act in a way that is incompatible with a convention right. Therefore courts and employment tribunals must, so far as possible, interpret all legislation compatibly with such convention rights. It may be possible in certain circumstances to bring an action against a public authority directly for acting incompatibly with the ECHR. Article 14 ECHR prohibits discrimination but its protection is limited since it only applies to discrimination connected with other ECHR rights. These include the prevention of inhuman and degrading treatment (Art 3); respect for private and family life (Art 9), freedom of thought, conscience and religion (Art 9) and freedom of expression (Art 10).
This Guide is only concerned with disability discrimination in employment.
Disability Discrimination Act 1995 (DDA)
Disability Discrimination Regulations 2005 (DDR)
Disability equality legislation has been in force for over 10 years. Its purpose is to integrate disabled people in society and unlike other discrimination laws, the legislation not only prohibits discrimination, it also creates individual rights for people with a disability. In 2004, the legislation was amended substantially and as well as the workplace, it seeks to enhance access to education, transport, vocational training, goods, services and facilities and regulates discrimination in public authorities (covering all their functions), the disposal of premises and advertising.
From 2005 the DDR imposed specific duties on public authorities to publish and implement a Disability Equality Scheme to, for example, promote equality of opportunity and eliminate harassment.
Code of Practice
The Disability Rights Commission (“DRC”) issued Code of Practice – Employment and Occupation, in 2004. Its publication was a statutory requirement and although failure to follow its provisions is not unlawful, it is admissible as evidence in employment tribunals where express reference should be made to any relevant provisions.
Who is protected?
The DDA applies to anyone with a disability and to those who have had a disability in the past. The sole exception is the armed forces.
The legislation makes it unlawful for anyone to discriminate against the disabled by treating them less favourably or for a reason that relates to their disability or where they fail to make reasonable adjustments. This can include a situation where the Claimant himself is not disabled but, for example, cares for a disabled child.
When are they protected?
The law regulates discrimination by employers, partnerships, trade unions, trade organisations, occupational pension schemes, employment agencies, qualification bodies and providers of work experience and vocational training. Protection begins during the recruitment process and covers all aspects of employment. The employment relationship must be covered by a contract (although not necessarily in writing).
Ex-employees may have protection where the employer retaliates following a complaint of discrimination.
What is protected?
For disabled job applicants, protection includes:
arrangements for determining who is offered employment;
the terms on which employment is offered;
refusing or deliberately not offering someone employment.
For disabled employees, protection includes:
the terms of employment s/he is afforded;
refusing or not giving the same opportunities for transfer, training or promotion;
giving fewer or less favourable benefits, facilities or services;
dismissal (including the expiry of fixed term contracts);
subjecting them to any other detriment.
Knowingly aiding someone else to commit an unlawful act is unlawful. It is also unlawful to instruct or pressure someone else to discriminate, to engage in discriminatory practices or to publish discriminatory advertisements but proceedings can only be brought by the Disability Rights Commission.
What is not protected?
People with addictions to alcohol, nicotine or any other substance are not treated as disabled unless the addiction originally resulted from the administration of medically prescribed drugs.
What is discrimination?
The concept of discrimination under the DDA is wholly different to its equivalent under the SDA and RRA and whilst the definition of disability discrimination is broadly similar to the protection given, for say, race and sex, there are very significant differences.
To secure a level playing field for people with disabilities, the DDA is based on securing their rights by imposing obligations on employers to make reasonable adjustments and a definition of discrimination which ‘relates’ to (or takes account of) their disability
The meaning of ‘disability’ and ‘disabled person’ is someone with a physical or mental impairment which has a long-term adverse effect on the ability to carry out normal day-to-day activities.
It is for the complainant to prove their disability and in this context:
substantial means the effect must be more than minor or trivial;
long-term means that the effect of the impairment has lasted or is likely to last for at least 12 months or it is likely to last for the rest of the affected person’s life, or it is likely to recur if it is in remission.
normal day-to-day activity must be affected by one of the following: mobility, manual dexterity, physical co-ordination, continence, ability to lift or carry, speech, hearing or eyesight, memory or ability to concentrate, learn or understand or perception of the risk of physical danger.
As for mental or physical impairment, certain personality disorders do not amount to impairments including kleptomania and exhibitionism; conditions amounting to an impairment have included, chronic fatigue syndrome, asthma, epilepsy, dyslexia and depression and HIV, cancer and multiple sclerosis are deemed as disabilities from the moment of diagnosis.
In accordance with the DDA, guidance on the definition of disability has been issued and the most recent came into force in 2006. There are five categories of disability discrimination.
Direct disability discrimination is less favourable treatment of a disabled person on the grounds of their disability compared to the treatment of someone without that disability but whose relevant circumstances, including their abilities, are the same or not materially different from the disabled person.
Less favourable treatment is widely defined but must be treatment that is different to that afforded to someone who does not have that particular disability but is in the same or comparable circumstances.
Determining discrimination therefore involves a comparison of how the complainant was treated against the treatment of another worker in similar circumstances. Although the ‘comparator’ must not have the same disability as the complainant, they could have a different disability or no disability at all.
For a claim to succeed, the complainant must establish the less favourable treatment and the tribunal must satisfy itself that the reason for that treatment was on the grounds of the complainant’s disability and not some other reason.
The test for less favourable treatment is objective; the question is whether the employee would have been treated differently, and more favourably, had it not been for their disability.
In disability discrimination cases, direct discrimination cannot be justified.
Disability related discrimination occurs when an employer, for a reason which relates to the disabled person’s disability, treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and the employer cannot show that such treatment is justified.
To establish the defence of justification under the DDA, the employer must show that the reason for the treatment of the disabled person is both ‘material’ to the circumstances of the particular case and ‘substantial’. The test focuses on whether the employer was entitled to consider the treatment material (a reasonably strong connection between the reason and the circumstances of the case) and substantial (it must carry real weight and be of substance). The employment tribunal is not permitted to substitute its own view.
Failure to make adjustments is discriminatory and arises where a provision, criterion or practice applied by an employer, or any physical features of premises occupied by the employer, place a disabled person at a substantial disadvantage in comparison with someone who is not disabled. The employer’s duty is to take such steps as it is reasonable, in all the circumstances of the case, to prevent the provision, criterion or practice, or feature having that effect.
The existence of the duty is a question of fact for the employment tribunal. There is no such duty where the employer does not know and could not be reasonably expected to know that the person is disabled and likely to be at a substantial disadvantage. However, it is reasonable to expect the employer to find out.
The steps which may need to be taken by an employer to comply with this positive duty are set out in the DDA:
making adjustments to premises;
allocating some of the disabled person’s duties to someone else;
transferring them to fill an existing vacancy;
altering their hours;
assigning them to a different place of work or training;
allowing absence for rehabilitation, assessment or treatment;
giving or arranging for training or mentoring;
acquiring or modifying equipment;
modifying instructions or reference manuals;
modifying procedures for testing or assessment;
providing a reader or interpreter;
Whether it is reasonable for an employer to take such steps, regard must be had to factors such as the extent to which the discriminatory effect would be prevented, practicability, the cost incurred, the disruption, the employer’s financial and other resources, the availability of financial and other assistance, the nature of the employer’s activities and the size of its undertaking.
A claim that an employer failed to make reasonable adjustments is free standing.
There is no justification defence for an employer that fails to comply with the duty to make reasonable adjustments.
Victimisation occurs when anyone, with or without a disability, is treated less favourably than others because in good faith they assert rights (or do a ‘protected act’) under the DDA.
This includes people making complaints or allegations about discrimination, bringing discrimination proceedings or acting as witnesses in such proceedings.
Establishing less favourable treatment requires a comparison between the complainant and a real or hypothetical person in the same circumstances who has not done the protected act.
Harassment occurs when a job applicant or an employee is subjected to unwanted conduct for a reason related to the person’s disability which has the purpose or the effect of:
violating the disabled person’s dignity
creating an intimidating, hostile, degrading, humiliating or offensive environment for them
In employment cases there is no requirement for a comparator to prove harassment.
Burden of proof
Given the employers’ duty to make reasonable adjustments and the need to justify any less favourable disability-related treatment, the burden on the employer is very different to that in other areas of discrimination law. Even so, a change to the burden of proof was introduced into disability discrimination cases in 2004 and implements a European Directive.
This means that once a complainant establishes facts from which the Tribunal can conclude there has been discrimination, and without an adequate explanation from the employer, an employment tribunal will have to make a finding of discrimination unless the employer proves that s/he did not commit that act of discrimination.
This is called the reversal of the burden of proof since the burden of proof in disability discrimination cases shifts to the employer.
In the context of disability discrimination, this reversal applies to the failure to make reasonable adjustments (as well as disability related discrimination) although the burden does not automatically shift when a request for an adjustment is made; it only reverses if a tribunal finds that an adjustment could reasonably have been made.
Hence, the Tribunal must make its primary findings of fact and determine whether there is direct evidence that a reasonable adjustment could have been made or that there is evidence of disability related discrimination or what inferences could be drawn from the facts. This can include any inferences that it is just and equitable to draw from evasive or equivocal answers to a disability discrimination questionnaire. If facts are proved from which inferences could be drawn that the complainant was treated less favourably on grounds of disability, the onus then passes to the Respondent to show that the discriminatory treatment was in no sense whatsoever on the grounds of disability. This means that disability was not any part of the reasons for the treatment concerned.
Unlike other discrimination laws, the DDA does not prohibit discrimination in favour of disabled people and requires that steps be taken in respect of disabled people’s needs. This can include more favourable treatment to remove a disadvantage.