New equality law: Disability
Section two of the Personnel Today Management Resources one stop guide to new equality laws. Other sections.
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Understand what new amendments to the DDA mean Understand other relevant disability discrimination legislation Learn about key legal cases |
"I have many experiences of people questioning my CV and experience once they see that I am disabled. I look good on paper but in reality 'not what they are looking for'." Respondent to London's Disability Capital 2003 survey
The premise
Employers cannot discriminate against a disabled person - employees or potential employees:
Disabled contract workers are also protected against discrimination:
The law
The Disability Discrimination Act (DDA) 1995
From 1 October 2004, the DDA (Amendment) Regulations 2003 took effect.
This means:
1. All employers must comply, regardless of size - except for the armed forces.
2. The Act's provisions now cover professions such as barristers or advocates in Scotland; firefighters; office and post holders, such as chairmen, directors and church ministers who are paid for their services; partners in firms; police officers; people on paid or unpaid work experience placements; qualifications bodies, as well as workers on oil rigs, and on UK-registered aircraft, hovercraft or ships. Also included are employees of British establishments who are working overseas, as long as they are normally resident in the UK.
3. Treating job applicants or employees less favourably simply on the basis of their disability is unlawful and there is no defence of justification.
4. Harassing disabled people on the basis of their disability is unlawful.
5. The justification defence is no longer available in respect of failure to comply with a legal duty to make 'reasonable adjustments'.
6. Blanket bans on people with certain disabilities from doing certain jobs may amount to direct discrimination and will be unlawful.
7. Instructing or pressuring someone else to discriminate against a disabled person will be unlawful.
8. The DDA may apply to certain acts of post-employment discrimination.
9. Burden of proof will be on the respondent to prove to a tribunal that discrimination didn't happen if a prima facie case is established.
Liability: Employers are liable for their own acts of discrimination against employees or job applicants, for any discriminatory acts committed by their employees on the job unless the employer can prove it took steps to prevent such behaviour. Employers are also liable for acts by third-party agents when committed with the employer's express or implied authority.
The definition
Disability: A physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. Long-term means having lasted 12 months, or will probably last for more than 12 months, or for the rest of one's life. Normal day-to-day activities are:
1. Mobility
2. Manual dexterity
3. Physical co-ordination
4. Continence
5. Ability to lift, carry or otherwise move everyday objects
6. Speaking, hearing or seeing
7. Memory or ability to concentrate, learn or understand
8. Perception of the risk of physical danger.
In addition, severe disfigurement is treated as having a substantial adverse affect.
Also covered are people who have had a disability in the past, even if they have recovered. Examples of past disabilities might include episodes of mental ill health. Conditions such as arthritis or severe back pain also may be covered if an individual's ability to carry out normal day-to-day activities such as typing or driving is affected.
Currently, people with progressive conditions such as cancer, HIV infection, multiple sclerosis and muscular dystrophy may be defined as disabled. However, they must be able to show that the condition already has an effect on their ability to carry out normal day-to-day activities. They also need to show that at some future point, they will have an impairment that will have a substantial adverse effect on their ability to carry out normal day-to-day activities.
Conditions not covered include:
1. Addiction to, or dependency on alcohol, nicotine, or any other substance (unless the substance has been medically prescribed)
2. Hay fever - also known as season allergic rhinitis - except where it aggravates the effect of another condition
3. Tendency to set fires
4. Tendency to steal
5. Tendency to physically or sexually abuse other people
6. Exhibitionism
7. Voyeurism
8. Tattoos and non-medical piercings.
Discrimination: Five different variants of discrimination are unlawful from 1 October 2004.
1. Direct discrimination: If the treatment of a disabled person stems from the basis of the person's disability, regardless of their abilities and competencies, and if the treatment is less fair or favourable than the way in which a person without that particular disability is or would be treated
2. Failure to make reasonable adjustments: Failing to make adjustments to the work premises, working conditions or job recruitment situations such as interview sites where a 'provision, practice or criterion' puts a disabled person at 'a substantial disadvantage'
3. Treating a disabled person less favourably: Unjustifiably treating a disabled person less favourably for a reason related to their disability, and the treatment is less favourable than the way others would be treated
4. Harassment: Engaging in unwanted conduct, which may violate the disabled person's dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for a person on the basis of their disability
5. Victimisation: Victimising a person for making, or intending to make, a complaint or allegation or having given or intending to give evidence in relation to a complaint of discrimination on the basis of disability
Reasonable adjustments: Examples of the kinds of adjustments an employer might be reasonably expected to make to accommodate a disabled worker could include:
1. Altering the person's working hours
2. Transferring some of the disabled person's duties to another worker
3. Transferring the disabled worker to fill an existing vacancy or to another work location
4. Allowing absences during working hours for medical reasons such as treatment, rehabilitation or assessment
5. Giving additional training
6. Getting special equipment or modifying existing equipment
7. Modifying instructions or reference manuals
8. Providing additional supervision and/or support such as an interpreter or reader.
Factors that can affect whether it will be reasonable for an employer to make a particular adjustment for a disabled person include:
1. How effective the adjustment is in preventing the disadvantage
2. How practical it is
3. Financial and other costs, and the extent of any disruption
4. The extent of the employer's financial and other resources
5. The availability to the employer of financial or other help to make the adjustment
6. Size and type of business involved.
Other relevant legislation
European Union Employment Framework Directive 2000/78/EC: Establishes a general framework for equal treatment in employment by outlawing discrimination on the basis of sexual orientation, religion or belief, disability and age in employment and vocational training.
Human Rights Act 1998: Gives 'further effect' to the rights and freedoms guaranteed to all under the European Convention on Human Rights and Fundamental Freedoms created in Rome in November 1950. It does not create any new statutory or common law rights for individuals.
The Act imposes a duty on tribunals and courts, when determining a question that has arisen in connection with a Convention right - this takes into account any judgment, decision, declaration or opinion of the European Commission and Court of Human Rights that may be relevant to the proceedings in which that question has arisen. It also makes it unlawful to public authorities, government departments and local authorities, for instance, to act in a way that is incompatible with a Convention right.
Most relevant to disability discrimination legislation is Article 14, which prohibits discrimination on any grounds such as disability, race, religious belief, sexual orientation, etc. Other provisions which impact employment are:
1. Article 8: Right to respect for private and family life
2. Article 9: Freedom of thought, conscience and religion
3. Article 10: Freedom of expression
4. Article 11: Freedom of assembly and association.
Key cases
Archibald v Fife Council:
How far must employers go to make reasonable adjustments?
Archibald, a road sweeper for the Fife Council, became virtually unable to walk after minor surgery. She could do office work, however. The council nevertheless considered office work a higher-level position than her previous role and according to council policy, employees seeking a higher grade position had to undergo competitive interviews. Although the council automatically shortlisted her for every such position for which she applied, she was not hired for any of them. She was subsequently dismissed. Archibald claimed disability discrimination on the grounds that she should have been redeployed without having to compete for a new position if she was qualified and suitable for the job. The House of Lords agreed.
Key point: Reasonable adjustment may mean redeploying a disabled employee to a vacancy that involves a promotion from the original position.
Berry v GB Electronics:
What obligations do employers have to disabled employees when making redundancies?
An Employment Appeal Tribunal found that a profoundly deaf employee had been discriminated against on the basis of his disability by the way in which his employers told him he was being made redundant. In May 1999, Berry was called to a group meeting with six other company employees where all were told of their impending redundancy. He had difficulty understanding why he was being let go, and that he was not the only person being made redundant. The EAT found that the company failed to make an 'appropriate' adjustment by not bringing in a signer or a colleague who could communicate effectively with him to give him the news separately.
Key point: Reasonable adjustments should be made to ensure the disabled employees have received full and complete information and fully understand the situation.
Collins v Royal National Theatre Board Limited:
Can an employer's failure to make adjustments to accommodate a disabled employee be unreasonable but justified?
From 1 October 2004, justification is no longer a defence for failure to make reasonable adjustments. Even before that date, however, the Court of Appeal decided in this case for the claimant. Collins, a carpenter's labourer, injured his right hand at work. He refused surgery on his GP's advice. His employer set him tasks to assess his capability and determined that he could not work efficiently or safely with his injury. He was dismissed, as there was no other job he could do. Collins claimed disability discrimination, in particular a breach of the duty to make reasonable adjustments. There had been insufficient attempts to see what adjustments could have been made to accommodate his disability.
Key point: Explore all possibilities for accommodation that could be made, and ensure medical advice is obtained to help your assessment.
Nottingham County Council v Meikle:
Can a claim of constructive dismissal be brought under the DDA? And does the duty to make reasonable adjustments extend to making adjustments to a contractual pay policy?
The answer to both questions is yes, based on a Court of Appeal decision involving a teacher employed by the council. Meikle had a degenerative eye condition, and made a number of suggestions about adjustments that could be made to accommodate her disability. Her employer did not agree to make the adjustments. Her disability led to sickness-related absence, and the school cut Meikle's pay by half, in accordance with its sick-pay policy.
The policy provided for employees to be paid in full for the first six months of sickness-related absence but after that point, their pay would be reduced by half. Meikle resigned, and claimed she had been constructively dismissed by reason of her disability because of the school's refusal to agree to her suggestions. Further, she claimed her pay cut was in breach of the DDA because the school had treated her less favourably on the basis of her disability, and had not made reasonable adjustments to the sick-pay policy. The Court of Appeal agreed with both Meikle's claims.
Key points: The DDA's definition of 'dismissal' does include a constructive dismissal. Further, the court found that the council had a duty to make reasonable adjustments to its sick pay policy under the DDA and had breached the policy by not doing so. A reasonable adjustment would have been to have put Meikle on full pay for all of her disability-related absence.
The future
The Disability Discrimination Bill: Expected to take force in 2006, the Bill will complete the Government's reforms of civil rights legislation to deliver effective rights for disabled people. Key measures will extend the DDA to cover the functions of public authorities, and to impose a positive duty on public bodies to eliminate discrimination and harassment, and promote equality of opportunity for disabled people.
Other recommendations that suggest significant implications for employers include:
Creating a disability discrimination-free zone
Recruitment
Check that job descriptions/specifications only include requirements clearly related to the duties. Focus on what the job is to accomplish.
Advertisements should be available in a wide range of formats such as large print, tape, disk, e-mail and if published on your organisation's website, it should be accessible to disabled people, for instance those who use screen-reading technology.
Place advertisements where disabled people are likely to see them, such as specialist disability magazines, local disability organisations' newsletters and websites.
Job application packs should be available in different formats, such as large print, Braille, audiocassette, signed and subtitled video. Applicants should be allowed to submit their applications in formats such as by telephone, on tape or by e-mail. Compile and keep an up-to-date list of support sources for, example, making a Braille copy of job specifications for a blind applicant.
Give applicants, through standard questions in job applications, the opportunity to say whether special provisions or facilities are required at interview, such as an interpreter for a deaf person.
Outline on the application form your duty as an employer to make adjustments, and ask applicants to comment on any they think they might need because of the effects of a disability or health condition.
Provide adequate space on the application for candidates to describe their activities outside paid work. Some disabled people may have limited paid work experience but gained valuable skills working for voluntary organisations. Disabled people should be encouraged to detail their volunteer experiences as it could enhance their qualifications for paid work.
Think about how you will process applications submitted in alternative formats. Will transcripts be made of tapes?
The interview
Ensure that adjustments, such as appropriate parking spaces, are in place and accessible on the designated interview days.
You may want to consider job-coaching sessions for potential candidates and/or provide questions in advance of an interview to give individuals a chance to think about the answers.
Consider alternative approaches for interview, such as by telephone, submitting a cassette, use of type talk, arranging for a sign language interpreter or lip reader.
It may also be helpful to provide information sheets outlining disability etiquette to interviewers.
Identify disabled staff within the company who could be members of recruitment panels, and once trained, invite them to join panels including those interviewing candidates known to have disabilities.
Any questions about the candidate's disability must relate specifically to the requirements of the job. If it is necessary to refer to the candidate's disability, phrase questions positively. For example, instead of saying "surely you'll have difficulty doing..." it is preferable to ask "How would you?" A question more specifically aimed at hidden disability could be "Assuming you are interested in our flexible work schedules and managed absence policies, are there any points or questions you would like to raise on these issues?"
The same scoring/assessment system should be used for disabled and non-disabled candidates, with scores given for answers to job-related questions only.
Keep records of selection criteria and reasons for selecting or not individual candidates so interviewees can receive feedback on their performance, if necessary.
Testing
Examine any tests your company offers as part of its normal recruitment and selection procedures to ensure they are free from an unjustifiable bias. You may need to revise the tests or the way the results are assessed, perhaps with guidance from specialist disability organisations.
If your company requires all job candidates to have a medical examination, it is appropriate to require the same of a disabled person. It is not OK, however, to insist on such a screening for a disabled person and not others.
Good practice: Request health checks or confidential health questions only after a preferred candidate has been selected.
The key question: would the selected candidate be fit for the job if a reasonable adjustment was made?
Induction
Think about whether your standard induction procedures or materials need adjustments such as Braille or large type materials for blind or visually impaired recruits.
Consider assigning a 'buddy' or mentor to help the person settle in, giving them a point of contact for basic day-to-day questions.
Managers, supervisors and working colleagues will need to be briefed on the nature of any adjustments that have been made, but not necessarily on the details of the new employee's disability. The disabled person may want to maintain confidentiality on the details.
Training and development
Look at your training programmes to determine if any particular adjustments need to be made to meet the needs of disabled people. One example might be carrying out training over an extended period because certain conditions, such as chronic back pain, might mean a person could stay in the same position for only a short time.
Ensure outside training providers offer programmes that are accessible to disabled people: Is the location easy to get to? Does the facility's physical layout meet access needs? Is special equipment available if needed? Do the trainers' processes, presentations and equipment lend themselves well to all audiences?
Don't make assumptions about a person's ability to take or benefit from training. Discuss with the person their career development, building new skills and whether they will need adjustments to fully participate.
Regular performance reviews offer a built-in opportunity to discuss the prospect of carrying out new tasks that come with transfer or promotion.
Don't overlook a disabled person for promotion to management or supervisory roles just because they may not be able to carry out some of the tasks. It's not uncommon for supervisors to know how tasks are done, and that they must be done, but not necessarily be able to do it themselves. Some tasks may need to be reassigned to other workers, to make a reasonable adjustment.
Disciplinary action, dismissal or redundancy
Are there any reasons linked to a person's disability that could be contributing to the need for disciplinary action? This question must be fully considered by employers and managers to make sure that there is no discrimination based on disability.
Good practice: Deal with a potential disciplinary problem immediately to establish why the employee acted a certain way, and to be sure the behaviour does not stem from the disability. Ensure the disabled person is allowed to have time to prepare so that they are not placed at a disadvantage to non-disabled employees.
Dismissal: Seek expert advice before dismissing an employee on the grounds of capability. There will often be possibilities for reasonable adjustments, such as a transfer to another position, to prevent dismissals. Be certain any dismissals can be justified and are non-discriminatory.
Redundancy: Be careful that any selection criteria set, or the assessment against the criteria, does not discriminate against a disabled employee. Again, be prepared to make reasonable adjustments in how the person is consulted or told of the redundancy so that they are not placed at a disadvantage to non-disabled people. You may want to seek expert advice.
Source: The Disability Rights Commission and A Practical Guide to Good Practice in the Recruitment of People With Disabilities to the Civil Service.
B&Q is well known as a leader in recruiting and employing all ages, but the company's emphasis on diversity doesn't stop there. As outlined in its commitment to its disability programme, the company promises to:
In 1998 the DIY company began work on its disability programme. The focus of the policy was initially its customers, specifically its disabled clientele, but it has ultimately benefited both customers and employees.
B&Q wanted first to ensure "disabled people would be able to shop with confidence and ease in our stores and be treated with respect and dignity." However, the company also wanted to recognise that "disabled people that work for B&Q make a valuable contribution to our business and enhance the quality of services we offer".
To that end, B&Q works with programmes such as the Government's WORKSTEP to bring disabled workers into the company workforce. WORKSTEP's purpose is to help disabled workers maximise their potential and guide them into mainstream employment. B&Q also offers work placements for disabled workers through partners such as learning disability charity Mencap and Remploy, which offers a recruitment service for disabled people as well as its own manufacturing businesses.
The company uses an online skill and personality-based questionnaire to handle the 300,000 annual job applications it receives. Stores then pull from the database the profiles of candidates wanted for interview. When extracted from the database, the candidate information does not include details on disability - or other potential discriminators such as age, gender and ethnic origin.
To ease the interview process for disabled job candidates, B&Q works towards providing 'reasonable adjustment'. Candidates who may have difficulty in participating in telephone-screening interviews can also be interviewed one-to-one, via text phone or with a sign language interpreter or through simply having additional time to answer the questions.
Each store has a diversity champion for disability, age, cultural diversity and sexual orientation. The champion's role is to provide support to whichever programme they are specifically advocating. Many of the diversity champions are themselves disabled.
One case in which B&Q reached out to disabled people involved an Essex man with Down's Syndrome who had been turned down for a job with another DIY operation. The media published this but initially believed that the company involved was B&Q.
When a customer threatened to withhold his business from B&Q because of the treatment the disabled man had received, B&Q promised to look into the matter. When the case of mistaken store identity came to light, the job applicant was offered a six-week placement at B&Q in Harlow as customer adviser on gardening. This ultimately became a permanent job for the Essex man.
A Nottingham employee who was diagnosed with a progressive degenerative eye condition was helped to continue his work in showroom after-sales through advice and support from the company. Special equipment to enlarge type and increase contrast now relieves the strain on the man's eyes when he is at work.
However, B&Q acknowledges that its disability efforts
are based on more than simply providing special equipment and improving access.
The bottom line for the company is that good diversity strategies lead to good
business by reflecting and responding to the needs of a wide customer base.
Disability Etiquette
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INSTEAD OF SAYING |
USE |
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Mental, mental patient, schizophrenic, lunatic, psycho, and so on |
A person with a mental health problem or difficulty |
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Cripple or invalid |
Disabled person, person with adisability, or if appropriate, a person with a mobility impairment |
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Deaf and dumb, or deaf mute |
A person who is deaf without speech, or a deaf person. Please note that British Sign Language is a recognised form of language |
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Midget or dwarf |
A person of short stature, or a person of restricted growth (although some individuals do prefer to be called a dwarf) |
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Fits, spells, attacks |
Seizures |
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Mentally handicapped, subnormal |
A person with a learning disability or difficulty |
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Spastic |
A person with cerebral palsy |
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Wheelchair-bound |
A wheelchair user |
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Source: The Disability Communication Guide, Employers' Forum on Disability |
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Section
1: Introduction |
