New draft disability code may confuse HR workers

The extensive revision of the Disability Rights Commission's code on employment and occupation may confuse HR professionals due to its interpretation of the law. By Anthony Korn, Barrister, 199 Strand Chambers.

The Disability Rights Commission (DRC) recently published a new draft Code of Practice on Employment and Occupation (along with a separate new draft Code on Trade Organisations and Qualifications Bodies).

Both codes are likely to come into force in October 2004, when changes to the law brought about by the Disability Discrimination Act (Amendment) (DDA) Regulations come into force. Among other things, the new DDA regulations will:

- Amend the statutory definition of direct discrimination

- Make important changes to the duty to make reasonable adjustments

- Introduce specific protection against harassment for a reason relating to a disability

- Alter the burden of proof in disability discrimination cases

- Extend the DDA to contract staff, office holders and even barristers

The imminent prospect of these changes is one reason why the Secretary of State for Work and Pensions invited the DRC to update the code on employment and occupation. Whether the changes justify a draft code almost three times the length of the current one (running to 196 pages), is open to question.

However, the new draft is more comprehensive. It includes advice and guidance on implementing anti-discrimination policies and practices, auditing policies and procedures, and a section on managing disability and ill-health absence, redundancy selection and the DDA's impact on occupational pensions and group insurance services.

In addition, the guidance on reasonable adjustments (likely to become essential reading for HR professionals), recruitment, direct discrimination and justification, has been revised in light of experience and case law developments since 1996.

More problematic (and at times debatable) is the draft code's interpretation and analysis of the law. It is "intended to help lawyers when advising their clients, and to assist courts and tribunals when interpreting novel legal concepts".

This is all very worthy, but it is potentially confusing for HR professionals who will have to get to grips with the distinction between direct discrimination (which is new) and "residual less favourable treatment" (which is not) if the code remains in its current form.

The code suggests the former will be the more important of the two, but in practical terms, the latter will remain important in cases where an employer is able to avoid liability for direct discrimination. Perhaps it would be clearer if the code simply referred to two types of direct discrimination, rather than terminology such as "residual less favourable treatment".

It includes many examples of conduct that is and is not likely to be unlawful. This is helpful for making reasonable adjustments, but may confuse some readers due to the DRC's interpretation of the law.

For example, in the section on harassment, it suggests a manager who constantly asks a woman suffering with depression whether she is alright could be guilty of unlawful harassment. But clearly much would depend on the circumstances, including his motives, the regularity of the questioning and the victim's reasonable perception.

The draft code deals with the thorny issue of asking about disability at the recruitment stage. Such questions may be justified in terms of the duty to make reasonable adjustments, but not normally otherwise.

All in all, there is a lot of food for thought. The consultation period ends on 30 November. You can respond by completing a DRC questionnaire, writing in, or e-mailing the organisation at www.drc-gb.org