New Discrimination Regulations: An EOR guide: Part 3: Disability

Michael Rubenstein offers an in-depth analysis of proposed changes to the law on disability, which include a right to complain of post-employment discrimination, and a change in the burden of proof.

The government laid Regulations amending the Disability Discrimination Act¹ (DDA) before Parliament on 8 May 2003. At the same time, it laid a series of Regulations amending the Race Relations Act and implementing the new rights not to be discriminated against on grounds of religion or belief, and sexual orientation.

In Part one, we looked at the key concepts that span race, religion or belief, and sexual orientation. In Part two , we focused on the "strand-specific" issues in the new Regulations relating to race discrimination, religion and belief, and sexual orientation. This edition examines the changes that will be made to the DDA. These amendments take effect from 1 October 2004. The Regulations implement the disability discrimination strand of the EU Framework Employment Directive 2000/78.

On 1 September, the Disability Rights Commission (DRC) published the consultative version of its Draft Code of Practice - Employment and Occupation², to take account of the changes to be made in October 2004 and developments since the last Code of Practice was published in 1996 (EOR 69). The new Code represents a major expansion on the original Code, with much more detailed discussion of practical issues arising under the legislation and a wealth of examples. The draft Code also sets out the DRC's provisional views on how the DDA will work once the amendments take effect. At the same time, the DRC has published a Draft Code of Practice - Trade Organisations and Qualifications Bodies.

New definitions of discrimination

In addition to the existing definitions of discrimination in the DDA - less favourable treatment for a reason relating to disability, failure to make a reasonable adjustment and victimisation - another definition is added by the Regulations: less favourable treatment on the ground of a disabled person's disability.

The Framework Directive specifies that "there shall be no direct or indirect discrimination whatsoever" on the "ground" of disability. Direct discrimination is defined as occurring "where one person is treated less favourably than another is, has been or would be treated in a comparable situation" on grounds of disability. This is essentially the same definition as currently found in the Sex Discrimination and Race Relations Acts.

Section 5(1) of the DDA, as currently in force, specifies that:

"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."

This is a broader definition than that in the Directive because it covers discrimination that is not just on the "ground" of disability as such, but also discrimination that "relates" to the person's disability. However, as limb (b) makes clear, this discrimination can be "justified" by the employer, whereas the Directive makes no provision for discrimination on the "ground" of disability to be justified, except where genuine occupational requirements apply. There is, of course, a well-developed body of case law on the principles for determining when disability discrimination is justified, most notably the Court of Appeal's decision in Clark v TDG Ltd t/a Novacold (EOR 85).

The way the government decided to reconcile these two definitions was to include them both in the revised DDA. Section 5(1) will remain exactly the same and will become s.3A(1). As is the case with the existing definition, new s.3A(3) provides that treatment is justified for the purposes of s.3A(1)(b)

"if, but only if, the reason for it is both material to the circumstances of the particular case and substantial."

However, new s.3A(4) states:

"But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5)."

Direct discrimination is then defined in s.3A(5) as follows:

"(5) 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."

What is the distinction between these two definitions and when will each apply? The government's explanatory memorandum says: "The intention of the changes is to outlaw, for example, prejudicial treatment imposed simply because a person is disabled, such as a 'blanket ban' on the employment of persons with a disability. Justification of such treatment has always been unlikely, but the subsections now make this explicit."

The DRC, in its draft Code, is anxious to emphasise the importance of "direct" discrimination as compared with what it terms "residual less favourable treatment". "Direct discrimination", it unequivocally states, "is the more important of the two". This is understandable from the DRC's perspective, since direct discrimination is incapable of justification, thereby circumventing the restrictions imposed by Clark v Novacold.

The DRC goes on to say: "If an employer treats a disabled person less favourably than it treats (or would treat) other people because of the employer's generalised assumptions about the disability or its effects, the treatment is likely to be 'on the ground of' the disability. This is because an employer would not normally make generalised assumptions about a non-disabled person's ability to do the job, but would instead consider his individual abilities."

There is clearly a conceptual distinction between discrimination on the ground of a person's disability as such, and discrimination for a disability-related reason. However, it is hard at this stage to see a bright line between the two. For a start, there is an issue as to how the word on the "ground" of disability will be interpreted by the tribunals and courts. If it is viewed in comparison with "for a reason related to" disability, it could be interpreted quite narrowly. Direct discrimination on grounds of disability is automatically unlawful whatever its justification and our tribunals tend not to like to have their opportunity to assess justice taken out of their hands. On the other hand, the Sex Discrimination Act prohibits discrimination on "grounds" of sex and that has been interpreted widely, so as to encompass pregnancy.

The DRC sees identification of the appropriate comparator as the key to distinguishing between the two forms of discrimination. The draft Code explains: "In relation to direct discrimination, determining whether a disabled person has been treated less favourably requires a comparison to be made with treatment received by people not having the particular disability which the disabled person in question has - that is, either non-disabled people or people with other disabilities - whose relevant circumstances (including abilities) are the same or not materially different." In contrast, "in determining whether residual less favourable treatment has occurred, a comparison must be made with a person to whom the disability-related reason does not apply (rather than with a non-disabled person in the same circumstances, as is the case for direct discrimination). The comparator may be non-disabled or disabled - but the key point is that the disability-related reason for the less favourable treatment must not apply to him."

The draft Code gives as an example of direct discrimination:

"A disabled person with serious long-term back pain takes six months' sick leave because of his disability, and is dismissed by his employer. A non-disabled fellow employee also takes six months' sick leave (because he has broken his leg) but is not dismissed. The difference in treatment is attributable to the employer's unwillingness to employ disabled staff. This is unlawful direct discrimination. The comparator is a person not having the disability in question but who has also taken six months' sick leave.

However, the position would be different if it was the employer's policy to dismiss any member of staff who has been off sick for six months, and that policy has been applied equally to disabled and non-disabled staff. In this case there would be no direct discrimination. The comparator is a person not having the disability in question who has taken six months' sick leave. Such a person would also have been dismissed. Nevertheless, the policy would give rise to a good claim for residual less favourable treatment, subject to justification."

The first part of this example illustrates the difficulties involved in this distinction. If the difference in treatment was attributable to the employer's unwillingness to employ disabled staff, that would indeed be direct discrimination, but how common will that be? By definition, the employer has already recruited the disabled person. The two situations are not the same in that the employer would expect the person with a broken leg to make a full recovery, whereas the disabled person has a "serious long-term condition". If the case went to a tribunal, the employer doubtless will say that it is not "unwilling" to employ disabled people, and that its decision was based on the amount of absence and the prospects for recovery. In other words, the employer will acknowledge that the dismissal was for a disability-related reason and attempt to argue that it was justified.

There are similar issues raised by the examples in the explanatory memorandum of how it is anticipated that the subsections will work. One says: "A disabled person with arthritis who types at 30 words per minute (wpm) applies for a typing job. A non-disabled candidate for the job types at 25 wpm. The employer gives the non-disabled candidate the job because of a dislike of disabled people.This would be direct discrimination because a non-disabled person in the same relevant circumstances as the disabled person and with the same abilities (a typing speed of 30 wpm, with the same accuracy rate) would have got the job." Another example says: "A disabled typist who applies for a typing job is allowed to use an adapted keyboard and types a test document at 50 wpm. A non-disabled candidate types it at 30 wpm with the same accuracy rate. However, the disabled typist is rejected because of prejudice. This would be direct discrimination, as the comparator would be a non-disabled person typing at 50 wpm."

Are there really a lot of employers who "dislike" people with arthritis, and would give a job to someone without arthritis who is not as good a typist?

This is not to say, of course, that there is no discrimination against people with particular disabilities on grounds of their disability. There is certainly less favourable treatment that is disability-specific. People with learning disabilities, mental disorders, epilepsy, even diabetes, may face exclusions from certain posts because of their disability. However, to the extent that the DDA has changed - and continues to change - employer attitudes, the importance of this category of discrimination will decrease over time. Moreover, even disability based on prejudice is not usually based on unthinking prejudice, but rather on stereotypes.

Take another of the examples in the draft Code: "A disabled woman who uses a wheelchair applies for a job. She can do the job but the employer wrongly assumes that the wheelchair will cause an obstruction in the office. He therefore gives the job to a person who is no more suitable for the job but who is not a wheelchair-user. The employer has therefore treated the woman less favourably than the other person by not giving her the job. The treatment was on the ground of the woman's disability."

At first sight, this certainly looks to fall within the category of direct discrimination. But if the case went to a tribunal, the employer will mount an argument that the reason the woman was rejected was because of his concerns about safety, and that he would treat any applicant who raised potential safety concerns similarly. Therefore, he will say that this treatment was not on grounds of the particular disability (assuming that wheelchair use is a disability in any event, rather than a consequence of an impairment), but on grounds of health and safety, albeit that it is for a reason related to the disability.

The change in the definition of discrimination resulting from the Directive is an important one. The DRC's attempt to sideline discrimination for a reason "related to" disability into a "residual" category has its attractions, but the consultation process might suggest that this section of the draft Code needs some further thought.

Reasonable adjustment

The Regulations make a number of significant changes to the DDA's provisions on reasonable adjustments.

The scope of the duty is widened from the existing duty to make adjustments as regards "arrangements made by or on behalf of an employer" to cover any "provision, criterion or practice applied by or on behalf of an employer", which places "the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled." The definitions section of the Regulations defines "provision, criterion or practice" as including "any arrangements". Moreover, whereas s.6(2) currently limits the duty of reasonable adjustment so that it does not appear to apply to cases of discrimination by dismissal or by subjecting an employee to a detriment, this limitation is removed and the adjustment duty will apply at all stages of the employment process.

This is explained in the explanatory memorandum as follows:

"Where it is reasonable to do so, an employer will be required to modify the application of any provision, criterion or practice which causes more than a minor or trivial disadvantage to a particular disabled employee to the extent needed to remove the disadvantage."

The draft Code of Practice adds:

"'Provisions, criteria and practices' encompass matters such as arrangements 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 therefore applies, for example, to selection and interview procedures and the arrangements for using premises for such procedures as well as to job offers, contractual arrangements and working conditions."

An interesting example is given for this:

"It is normal practice for a call centre to employ supervisors on a full-time basis. A woman with sickle cell anaemia applies for a job as a supervisor. Because of pain and fatigue relating to her condition she asks to be able to do the job on a part-time basis. The employer agrees that the post could be offered on this basis. The hours of work which are offered amount to an adjustment to a working practice. This is likely to be a reasonable adjustment."

This illustrates just how wide the duty to make adjustments under the DDA in respect of a disability can be, as compared with rights under other legislation to request part-time working.

Section 6 of the 1995 Act sets out a number of factors which, in particular, should be taken into account in determining whether it is reasonable for an adjustment to have to be made by an employer. Two new factors are added by the Regulations: "the nature of his activities and the size of his undertaking" and, "where the step would be taken in relation to a private household, the extent to which taking it would - (i) disrupt that household, or (ii) disrupt any person residing there." The explanatory memorandum says about the latter: "Even if the financial cost would be minimal, an adjustment may not be reasonable if it would entail disruption to the household (eg repeated re-arrangement of furniture) or disturbance to persons who live there (eg by requiring them to change their routines in order to accommodate the disabled person)."

The Act also sets out some specific examples of adjustments that an employer might have to take, which were illustrated by examples in the 1996 Code. The specific examples are changed only to a minor extent by the Regulations: "altering his working hours" becomes "altering his hours of working or training", "assigning him to a different place of work" becomes "assigning him to a different place of work or training", "giving him, or arranging for him to be given, training" becomes "giving, or arranging for, training or mentoring (whether for the disabled person or any other person)", and "providing supervision" becomes "providing supervision or other support".

The draft 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. According to the DRC, these steps could include: