LOW PAY UNIT - ADVICE LEAFLET

Employment and the Disability Discrimination Act

The Disability Discrimination Act 1995 protects 8.5 million people with disabilities against discrimination in many areas of their lives from the provision of goods and services to employment. This leaflet explains how the Act applies in employment situations.

The DDA makes it unlawful for an employer with 15 or more staff to discriminate against employees or job applications because they are disabled.

Who is covered?

Unless your are complaining about discrimination by way of victimisation, you must have a disability to be covered by the DDA. Disability is given a specific definition in the DDA:a physical or a mental impairment which has a substantial, long term, adverse affect on a person's ability to carry out normal day to day activities.

Some conditions such as a tendency to set fires, steal or abuse others, or addictions not caused by taking prescribed drugs can never a disability under the DDA Act. For other conditions it will depend simply on how the condition affects your ability to carry out normal day to day activities. Conditions such as asthma, or depression for which you are receiving treatment, have been found by employment tribunals to be disabilities, but they will not necessarily be so in every case.

To be covered, your condition must have an impact on one or more of the following: your mobility; manual dexterity; physical co-ordination; continence; ability to lift, carry or otherwise move everyday objects; speech, hearing or eyesight, memory or ability to concentrate, learn or understand, or your perception of risk or physical danger.

Exclusions

Even if you have a disability, the DDA does not apply if:

• your employer has fewer than 15 employees;
• you are employed as a police or prison officer, a fire fighter or in the armed services; or
• your employer does not know, and could not be expected to know, that you have a disability.

What does the DDA cover?

If you have a disability and the exclusions above do not apply, it is unlawful for an employer to discriminate against you in:

• the arrangements for selecting applicants for jobs
• the decision to employ or the terms on which employment is offered;
• the opportunities for training, promotion, a transfer or any other benefits; or
• dismissal or subjection to any other detriment.

This discrimination can take three forms: less favourable treatment, a failure to make reasonable adjustments and victimisation.

Less favourable treatment

An employer discriminates against you as a disabled person if, for a reason related to your disabiliity, your are treated less favourably than others who are not affected by that reason, and the difference in treatment cannot be justified.

You do not need to compare yourself to an able-bodied emplyee who has been treated differently. Instead you can compare your treatment with that of a person who would not find the same treatment less favourable. This might be an able-bodied person, or a person with a different impairment.

The difference in treatment can only be justified if there is a good reason for it that is related to the particular circumstances. General reasons based on assumptions about people with a particular condition will not justify differences in treatment. The resources available to the employer can be taken into account in deciding what action they should have taken

Failure to make adjustments

The DDA places a positive duty on employers to take reasonable steps to ensure that the environment and practices of the business do not place disabled people at a disadvantage. This duty covers job applicants as well as employees.

It will be discrimination if your employer, or prospective employer, does not take action to eliminate these barriers, and this failure cannot be justified. To comply with the duty the employer may need, for example, to modify their premises, acquire or modify equipment, or provide you with training, alter your working hours, or allow you time off for rehabilitation, assessment or treatment.

What will be 'reasonable' will depend on the circumstances. Once again, employers will find it difficult to justify their failure to take action if their reasons are not substantial and releveant to the particular circumstances.

Victimisation

It is unlawful discrimination for your employer to ttreat you less favourably that another employee because you have, or intend to, take any action under the DDA. This includes assisting another person to make a claim under the DDA, and so applies whether or not you have a disability.

Remedies

If you feel you have been discriminated against, then you should make your complaint to an employment tribunal. You must do this within three months of the discrimination you allege.

You can obtain further information to assist you with your claim, or to help you decide if you have a claim by serving a questionnaire on the employer. A standard form for the questionanaire is available from the Disability Rights Commission and the answers are admissable in a tribunal hearing. The employer is not obliged to answer the questions, but a tribunal can draw inferences if they fail to answer questions that are relevant, or give evasive answers. Serving a well thought out questionnaire can be a good way of gaining the initiative in a claim.

If you are successful the employment tribunal can make the following orders:

• financial compensation
• a declaration about your rights in relation to the complaint;
• a recommendation that within a specified period the emplyer takes reasonable action to remove or reduce the barriers you experienced.

Codes of Practice

The Secretary of State has drawn up a Code of Practice containing practical guidance on implementing the DDA with a view of elimination of discrimination against disabled people and encouraging good practice. The Code is not legally binding, but a tribunal can take it into account in deciding, for example, what action it would have been reasonable for your employer to take.

Disability Rights Commission

The Disability Rights Commission has been established by statute to provide guidance on how the DDA should be implemented and to investigate alleged breaches of the Act. It is an excellent source of information and advice and can be contacted at:




Disability Rights Commission
FREEPOST MID 02164
Stratford upon Avon
Warwickshire
CV37 9BR

Telephone 08457 622 633
Textphone 08457 622 644
Fax: 08457 622 611
Email: enquiry@drc-gb.org
or visit their website

July 2001

---

© Low Pay Unit   July 2001

For further details contact:

ERAS
Low Pay Unit
9 Arkwright Road
London NW3 6AB
  Advice line: 020 7431 7385

See our links section for other sources of advice.