DRC Code of Practice on Employment
The final version of the Disability Rights
Commission's (DRC) revised Code of Practice on Employment and Occupation* was
laid before parliament on
The Code takes account of the important changes to the Disability Discrimination Act (DDA), which come into force on 1 October 2004 (see New Discrimination Regulations: An EOR guide), as well as developments since the last Code of Practice was published in 1996 (EOR 69).
New definitions of discrimination
The most important change to this part of the DDA is the addition of a new definition of unlawful discrimination covering direct discrimination "on the ground of" a disabled person's disability. This now sits alongside the two other definitions of discrimination in the DDA - less favourable treatment for a reason relating to disability and failure to make a reasonable adjustment.
In New Discrimination Regulations: An EOR guide, we suggested that the DRC's consultative draft Code was not as clear as it could be on explaining the new definitions of disability discrimination and the likely distinctions between them. The final revised Code makes major, and helpful, changes to that key part of the Code.
To recap on the statute, what was s.5(1) of the DDA becomes s.3A(1), but its wording is exactly the same: "an employer discriminates against a disabled person if -
(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment in question is justified."
The Code of Practice now terms this "disability-related" discrimination.
"Direct discrimination" is defined in s.3A(5) as follows: "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, those of the disabled person."
Unlike disability-related discrimination, direct discrimination cannot be justified by an employer. The Code explains the distinction between the two concepts: "In general, direct discrimination occurs when the reason for the less favourable treatment in question is the disability, while disability-related discrimination occurs when the reason relates to the disability but is not the disability itself."
* Available from The Stationery Office. The DRC has also published a revised Code of Practice for Trade Organisations and Qualifications Bodies.
Direct discrimination
Direct discrimination is the new concept. Whether treatment of a disabled person is "on the ground" of their disability raises a question of causation. The Code points out that this means that treatment is on the ground of disability if a disabled person would not have received it but for his disability. "However, disability does not have to be the only (or even the main) cause of the treatment complained of - provided that it is an effective cause, determined objectively from all the circumstances."
The Code identifies three main circumstances that are likely to amount to direct discrimination. The first is "if the less favourable treatment occurs because of the employer's generalised, or stereotypical, assumptions about the disability or its effects". This is direct discrimination because an employer would not normally make such assumptions about a non-disabled person, but would instead consider their individual abilities. An example of direct discrimination would be an employer operating a blanket ban on anyone who has had a mental illness, without consideration of their individual abilities.
The second form of direct discrimination covers "less favourable treatment which is disability-specific, or which arises out of prejudice about disability (or about a particular type of disability)". An example is an employer that turns down a disabled applicant with a severe facial disfigurement for a post solely on the ground that other employees would be uncomfortable working alongside him.
Direct discrimination may also occur where "an apparently neutral reason for less favourable treatment of a disabled person may, on investigation, turn out to be a pretext" for discrimination.
Different forms of discrimination: examples
The Code illustrates the way in which the main forms of discrimination operate in practice by using the following examples:
"A woman with arthritis applies for a secretarial job in a local business. There is a question on the application form about disability, and she indicates that she has arthritis but that it does not affect her typing. The employer rejects her application because it nevertheless wrongly assumes that she will not be able to carry out the job due to her arthritis. This is direct discrimination.
"In the situation described above, the woman instead declares on the application form that her arthritis does affect her ability to type. She is called for an interview and is told that a typing test forms part of the selection process. She tells the employer that she will need to use an adapted keyboard in order to take the test, but this is not provided on the day of the interview, and the woman fails the test as a result. As a consequence of failing the test, she is turned down for the job. This is not direct discrimination, as the reason for the employer's rejection of the woman was not her disability, but was the fact that she failed the typing test.
"However, in such circumstances the employer has a duty to make reasonable adjustments to its selection arrangements. Depending on the circumstances, it may be a reasonable adjustment for the employer to provide the adapted keyboard or allow the woman to use her own keyboard in order that she is not placed at a substantial disadvantage by the test. If this is the case, then the employer will be unlawfully discriminating against her by failing to make the adjustment.
"Although there is no direct discrimination, the employer has still treated the woman less favourably for a reason relating to her disability (namely the fact that she failed the typing test). This will be disability-related discrimination unless the employer can show that it is justified - and the employer will be unable to show this if it would have been reasonable for it to provide her with an adapted keyboard or allow her to use her own in order to take the typing test."
Reasonable adjustments
A number of
significant changes to the duty on employers under s.6 to make reasonable
adjustments in relation to disabled people take effect from
The DRC Code reminds us that: "'provisions, criteria and practices' include arrangements, for example, for determining to whom employment should be offered, and terms, conditions or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded. The duty to make reasonable adjustments applies, for example, to selection and interview procedures and the premises used for such procedures, as well as to job offers, contractual arrangements and working conditions."
The Act sets out some specific examples of adjustments that an employer might have to make. The Code points out that it might be reasonable for employers to have to take other steps, which are not given as examples in the Act. In the consultative draft, six possible other steps were set out. This has now been increased to eight potential steps:
conducting a proper assessment of what reasonable adjustments may be required;
permitting flexible working;
allowing a disabled employee to take a period of disability leave;
participating in supported employment schemes, such as Workstep;
employing a support worker to assist a disabled employee;
modifying disciplinary or grievance procedures;
adjusting redundancy selection criteria; and
modifying performance-related pay arrangements.
The new steps are those relating to an assessment of reasonable adjustments and disability leave. The assessment suggestion reflects the view of the Employment Appeals Tribunal in Mid Staffordshire General Hospitals NHS Trust v Cambridge (EOR 125) that a proper assessment of what is required to eliminate a disabled person's disadvantage is a necessary part of the duty imposed by s.6(1), since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done.
The Code's suggestion relating to an adjustment of disability leave is illustrated by an example: "An employee who has cancer needs to undergo treatment and rehabilitation. His employer allows a period of disability leave and permits him to return to his job at the end of this period."
More controversially, the new example for adjusting redundancy selection criteria comes close to suggesting that an employer may have a duty of reasonable adjustment not to take account of absences that are disability-related. The example states: "A woman with an autoimmune disease has taken several short periods of absence during the year because of the condition. When her employer is taking absences into account as a criterion for selecting people for redundancy, he discounts these periods of disability-related absence." Whether there is such a duty generally is one of the great unresolved questions of disability discrimination law.
