UK: Disability Discrimination Update

Last Updated: 22 February 2005
Article by David Marshall

All personal injury lawyers need to have at least a passing familiarity with the employment protection provisions of the Disability Discrimination Act 1995. We all know that if your client is in employment and suffers an injury that prevents or restricts his ability to work, his prospects of eventually returning to employment are much greater if he does not lose his job.

‘Capability’ (or rather being incapable of doing the job) is, of course, a potentially ‘fair’ reason for a dismissal. However, the 1995 Act gave considerably greater protections to employees suffering from a disability. Disability for the purposes of the 1995 Act is defined as "a physical or mental impairment, which has a substantial and long term adverse effect on [the person’s] ability to carry out normal day-to-day activities". This impairment must have lasted 12 months, be likely to last more than 12 months, or be likely to be permanent. So far as mental illness is concerned, this must be "clinically well-recognised". Under the provisions of the 1995 Act an employer was not permitted to treat a disabled employee less favourably for a reason related to his disability. Employers were also required to make reasonable adjustments to working "arrangements", unless it was justified not do so.

There have been a number of problems with the 1995 Act. One issue has been the tortuous drafting, which has led to a great deal of case law on nearly every word in key provisions. Furthermore, the remedy is to bring employment tribunal proceedings and legal costs are not normally allowed on top of any compensation award which, as with other discrimination remedies which also depend on complex law, makes it difficult for clients who are not union members or who do not have the benefit of legal expenses insurance to enforce their rights. Furthermore, a number of occupations were excluded and small employers (those with fewer than 15 staff) were also excluded from the scope of the legislation.

On 1 October 2004 the Disability Discrimination Act 1995 (Amendment) Regulations 2003 came into force. Much of the public profile of these changes has been to do with amendments to Part III of the 1995 Act which relates to removing physical barriers to the provision of goods and services to disabled people. This is of course an important change, requiring business to much improve disabled access. However, in the period between 1996 and 2000, nearly nine thousand employment related disability discrimination claims were brought, but only 53 claims were brought under the goods and services provisions of the Act1. It seems unlikely that there will be a big increase in the number of civil claims brought to court for breach of the new provisions relating to removing physical barriers because of the likely level of compensation and the absence of orders for payment of legal costs in the small claims track to which most cases will be allocated.

However, a number of important improvements to the employment provisions were also brought in on 1 October 2004. The small employer’s exemption has been removed. The significance of this change should not be underestimated bearing in mind that just over 13% of the employed population in the UK (more than 3 million people) are employed in small businesses of whom about 9% will be disabled2. In determining the extent of the reasonable adjustments employers are required to make, the size of the business is to be taken into account and there are also additional protections for employers who employ people to work in their private household. Other amendments in the Regulations will catch most other ‘workers’ who may not technically be employees. The police, fire fighters, barristers and partners in firms are all now also brought into the scope of the DDA. With the single exception of the armed forces, who retain an exclusion, almost all workers are therefore now protected by the Disability Discrimination Act.

There are also improved protections for employees. Direct discrimination on the grounds of disability is now unlawful:

"A person directly discriminates against a disabled person, if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities are the same as, or not materially different from, a disabled person."

There are therefore now three distinct forms of discrimination – direct, disability-related and a failure to make reasonable adjustments.

This should end the "nice" legal arguments about whether discrimination is related to the disability and so unlawful or is in respect of the disability itself (and therefore previously not unlawful!). Direct discrimination should also catch stereotypical assumptions by employers about the disability and its effects.

So far as the failure to make reasonable adjustments is concerned, this previously applied only to "arrangements made by or on behalf of the employer" which place the disabled person at a substantial disadvantage. Although this had been given quite a wide interpretation by the higher courts, there were still arguments over its meaning. The amended Act now requires employers to consider changes to "criteria, provisions and practices" as well as arrangements. This should catch selection and interview procedures. It is also provided that after termination of employment it is unlawful to subject the employee to a detriment or to harassment.

Direct discrimination can never be ‘justified’ and the defence of justification has also been removed from the failure to make reasonable adjustments (although it is still available for disability-related discrimination).

Harassment has been given a free-standing definition of unwanted conduct which has the purpose or effect of "violating the disabled person’s dignity" or "creating an intimidating, hostile, degrading, humiliating or offensive environment for him." Instructing others to discriminate (even if the others refuse to carry this out) has also been made unlawful (although this kind of claim can only be brought by the Disability Rights Commission).

The Act also now follows the sex discrimination legislation by way of reversal of the burden of proof. If the complainant makes out a prima facie case of discrimination, the burden of proof shifts to the employer to show that he did not discriminate. And if he cannot do so, then the tribunal "must" find for the complainant. Case law under the sex discrimination legislation following reversal of the burden of proof has not been terribly encouraging as to whether this makes this significant practical difference. However, many sex discrimination cases still turn on opposing verbal evidence as to whether discrimination occurred. In the case of disability discrimination complaints it is instead more likely to be argued that the appropriate things were not done by the employer, so an absence of records together with the shifting of the burden of proof may well be of great significance for complainants.

Employers are now required to answer a Disability Discrimination Act questionnaire within 8 weeks rather than the previous "reasonable period".

This legislation has come in advance of the date required for implementation of the European Union Equal Treatment Framework Directive3 which has to be implemented by member states by 2 December 2006. Further legislation in the form of the draft Disability Discrimination Bill is in progress which will deem certain conditions (including HIV, MS and cancer) as disabilities. Once the date for implementation of the Equal Treatment Framework Directive has passed there will be the added benefit of a European purposive approach to interpretation of the UK legislation.

As well as the recent legislative changes relating to disability discrimination, there have also been some important recent decisions of the higher courts. On 1 July 2004 the House of Lords handed down judgement in the case of Archibald v Fife Council4. Mrs. Archibald had been a road sweeper for Fife Council. Following a medical procedure she had been unable to return to manual work. She therefore sought redeployment to an office job. It was common ground that she was capable of the work required. The employer required Mrs. Archibald to undergo competitive interviews and she was unsuccessful, although she had applied for more than 100 posts within the Council.

The House of Lords held that the Disability Discrimination Act is different to other discrimination laws because in effect it is more focused on equality of outcome rather than on equality of treatment. The Act therefore requires an element of positive discrimination. Under the Act, by reason of the duty to make reasonable adjustments, the employer is not only permitted, but is obliged, to treat a disabled person more favourably than others. In this case, this meant transferring Mrs. Archibald to a vacant office-based position without the need for competitive interview. This was so even though the Local Government and Housing Act 1989 requires all staff engaged by local authority to be appointed "on merit".

Another recent helpful decision is that of the Court of Appeal in the case of Meikle v Nottinghamshire County Council5 handed down on 8 July 2004. Mrs. Meikle was a teacher employed by the Council who suffered from a visual impairment. As well as being printed in a font she was unable to read, the timetable required her to move from one end of the school to the other for consecutive lessons. She asked that her lessons be located in the same classroom or that she should be given extra time between lessons. The employer refused. They also admitted to a number of other failures to make reasonable adjustments requested by her and her union (including the printing of a timetable for her that she could read). As a result of the additional stress she was put under she went on long-term sick leave and eventually claimed a constructive dismissal and left employment. The employer’s contractual sick pay policy was full pay for six months and then half pay for six months.

This case has been mainly reported on the basis of establishing that a constructive dismissal amounted to a dismissal for the purposes of the 1995 Act (the 2003 Regulations amend the 1995 Act to make this clear for dismissals after 1 October 2004 in any event). It is perhaps surprising that this was argued and that it took 20 pages of the Court of Appeal judgement for the issue to be determined in favour of Mrs. Meikle. However, the Court of Appeal also held that because the reason for her extended sick leave had been the Council’s admitted failures to make reasonable adjustments, she was therefore entitled to full pay rather than half pay for the second six months of absence. Contractual sick pay was not excluded by section 6(11) of the Act which relates to pension schemes and the like. The Council was not allowed to plead justification.

It would seem that after a period of considerable difficulty in interpreting or using the Act, the pendulum has swung back in favour of the disabled employee, both by reason of the recent legislative changes and interpretation by the courts. The wording of the Act remains somewhat labyrinthine. The Disability Rights Commission has published two new Codes of Practice relating to employment and the provision of goods and services which are available free of charge from their web-site (www.drc-gb.org). Although not of statutory force, employers, courts and tribunals must take them into account and they are very user-friendly.

Personal injury lawyers should be alive to the additional remedies the amended Act may give their clients. It may only be a matter of time before failure to enforce rights under the Act is pleaded by Defendants as an allegation of a failure to mitigate loss. Reasonable adjustments may often be taken to include changes to the nature of the job, redeployment to other suitable employment or flexible or part-time working, all of which may be appropriate for a client who has suffered personal injury, whether or not as a result of this employer's negligence. Obviously, it is important to ensure that the client is properly advised as to his employment rights. And if the lawyer acting in the personal injury case is unable to give such advice he should refer on within the firm or to another specialist agency. The usual time limit for employment tribunal claims remains three months from the act of discrimination (although a claim arising from a continuing course of discrimination might sometimes be dated from the last such act) – but specialist advice must be sought for individual cases!

Notwithstanding the current emphasis on rehabilitation and getting those injured in accidents back to work, there is in an undoubted reluctance on the part of many employers to put this into practice. There is a strong cultural bias in the United Kingdom against employing disabled people, perhaps fuelled by our macho long-hours culture. If the injured person is in employment and can keep his job (even if he is not necessarily receiving sick pay) the 1995 Act (as amended) does provide a statutory framework for getting the client back into work, even if it is not in exactly the same job or working the same hours. Of course achieving a cultural change will take time, but it will also take efforts on the part of those advising disabled people to ensure that these new rights are properly used in all appropriate cases.

Footnotes

1. Income Data Services 2. Regulatory Impact Assessment 3. No 2000/78 4. [2004] UKHL 32 5. [2004] EWCA Civ 859

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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