Since the introduction of the Disability Discrimination Act (DDA) in 1996 the law has continued to evolve. Not only have the original provisions of the Act been subject to judicial interpretation, but major changes have been made to the legislation itself.
In October 2004 the Act was extended significantly and now all employers irrespective of size must not discriminate directly or indirectly against disabled persons and must also ensure they make all reasonable adjustments that will enable those with disabilities to do their job. But with disabled people still twice as likely to be out of work and likely to earn less than able-bodied colleagues there is still a long way to go to remove discrimination.
The scope of disability however is becoming more far reaching. The definition of a disabled person is someone who has a physical or mental impairment which has an effect on their ability to carry out normal day-to-day activities. The effect must be substantial, adverse and long-term. Until recently it has been necessary for less visible conditions to be ‘clinically well recognised’ for example mental illness or mental health problems. However, it is likely from the end of 2005 that a clinical definition will no longer be required, just evidence that the condition prevents the individual from carrying out normal day-to-day activities.
In all circumstances, employers must consider reasonable adjustments if they know or could reasonably be expected to know that an employee has a disability. The latter would be the case if an employee who sometimes cries at work suffers from depression. If the employer makes no attempt to find out if the employee is disabled and even disciplines them without giving any opportunity to explain that the problem arises from a disability, the employer may be in breach of a duty to make reasonable adjustments.
In a recent case an employee suffering from diabetes was found to be discriminated against when he was placed on poor attendance procedures for being absent from work with a number of viral infections, as the employer didn’t take into account that diabetes sufferers are more prone to general viruses and infections. In another case a fork lift truck driver won an unfair dismissal case on the basis of disability discrimination because his employer did not make reasonable adjustments for his ‘borderline learning difficulties’.
An even more significant case concerned a road sweeper who injured her back whilst working for the Fife Council and applied unsuccessfully for a number of office positions. In line with the policy that all jobs were advertised on a competitive basis the tribunal, in this instance, ruled that a reasonable adjustment would have been to recruit her to one of the roles even though she may not have been the best candidate.
Employers need to ensure that their managers are given proper training in disability discrimination so they are able to deal effectively with disability issues to the benefit of the business.