UK: Disability Discrimination Legislation Broadened

One of the most significant changes will be the amendment of the definition of "disability" under the Disability Discrimination Act. The effect will be to enhance protection for progressive conditions such as HIV, MS, and certain types of cancer from effectively the point the employee is diagnosed. This means that people who have been diagnosed with these conditions will be protected from being discriminated against even when they are not experiencing any adverse effect on their daily activities.

In addition, the requirement that a mental illness be "clinically well recognised" will be removed, thus making it easier for those with a mental impairment to bring Disability Discrimination Act claims. This is one of the most significant amendments for employers. There has never been a requirement that a physical disability be clinically well recognised, and it has long been argued that there is no reason why a mental impairment must arrive from a mental illness which is clinically well recognised. Many people with a mental health impairment may not therefore think of themselves as disabled and they may now have rights supported by the Disability Discrimination Act.

Whilst in some respects it is going to be easier for an employee to bring a claim, relying on the new definition of a mental impairment, it must be remembered that the Disability Discrimination Act still requires that the mental impairment must have a substantial effect on day-to-day activities. Employers should therefore be aware of the broadening of disability discrimination and, in particular, whether they are under any obligation to make "reasonable adjustments" for employees whom they previously did not consider as "disabled".

There are further amendments to the Disability Discrimination Act which include making third party publishers (e.g. newspapers) liable for publishing discriminatory adverts. Significantly, for public bodies, a further amendment will come into force in December 2006 imposing a duty to promote equality of opportunity for disabled persons.

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