Disability discrimination update (1)

This first article in a two-part series on disability discrimination considers the changes introduced by the Disability Discrimination Act 2005.

KEY POINTS

  • The Disability Discrimination Act 2005 has had a significant impact on the Disability Discrimination Act 1995.
  • For the purposes of deciding whether or not a person is disabled, there is no longer a requirement for a mental illness to be clinically well recognised.
  • A person with cancer, HIV infection or multiple sclerosis is deemed to be disabled from the point of diagnosis.
  • All public authorities are subject to a new duty to promote disability equality.
  • Certain public authorities are also subject to specific duties, including a requirement to produce a disability equality scheme.
  • Councillors are now protected by the Disability Discrimination Act 1995.

The Disability Discrimination Act 1995 (DDA), which aims to end the discrimination that many disabled people face in employment and other areas, is a hugely complex piece of legislation that continues to evolve.

On 1 October 2004, detailed amendment Regulations1 made significant changes to the employment provisions of the DDA, including extending the scope of this part of the Act, introducing provisions on direct discrimination and harassment, and removing the defence of justification in some circumstances. These amendments were designed to implement the Employment Framework Directive 2000/78/EC - concerned with equal treatment in employment and occupation - so far as it relates to disability discrimination. A new code of practice2 was also introduced in 2004 to set out the Disability Rights Commission's (DRC) understanding of the law as it applied from October of that year.

As these changes continued to bed down, more were introduced. The Disability Discrimination Act 2005 has made significant amendments to the DDA in relation to the definition of disability and introduced important new duties on all public sector employers. This article explores these developments - some of which came into force in December 2005 and some in December 2006 - in detail.

Definition of disability

The DDA protects only those individuals who are disabled within the meaning of s.1 of the Act. Other perceptions or definitions of disability used in other contexts, for example social security, do not determine if a person has rights, or an employer duties, under the DDA. If a dispute proceeds to an employment tribunal, the burden of proving that the Act's definition of disability is satisfied falls on the claimant (Kapadia v London Borough of Lambeth).

Section 1(1) of the DDA provides: "Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities." This definition is subject to provisions in Schs. 1 and 2 to the DDA and is supplemented by Regulations and by guidance3 issued by the secretary of state under s.3 of the DDA.

This means four essential elements make up the definition of disability for the purposes of the DDA:

  • the individual must have a physical or mental impairment;
  • the impairment must have adverse effects that are substantial;
  • the substantial adverse effects must be long term; and
  • the long-term substantial adverse effects must be on normal day-to-day activities.

Mental impairments

Historically, one of the most difficult aspects of the law on disability has been the way in which this definition of disability operates in relation to someone with a mental impairment. An important change to the relevant provisions of the DDA has simplified the law in this area and, in so doing, has extended the reach of the Act so that employers may now owe duties to a larger base of employees than previously.

Prior to 5 December 2005, para. 1(1) of Sch. 1 to the DDA provided that a mental impairment included an impairment resulting from or consisting of mental illness "only if the illness is a clinically well-recognised illness". The statutory guidance in force at the time stated that "a clinically well-recognised illness is a mental illness which is recognised by a respected body of medical opinion. It is very likely that this would include those specifically mentioned in publications such as the World Health Organisation's International Classification of Diseases" (ICD- 10).

In practice, this tended to operate as a significant barrier for individuals seeking to establish or enforce rights under the DDA. Although the guidance did not specifically require that an illness be included in ICD-10 to be clinically well recognised, tribunals and higher courts were reluctant to conclude that a mental illness was "clinically well recognised" unless there was expert evidence. For example, in Morgan v Staffordshire Universityit was held that medical notes containing comments such as "anxiety", "ongoing recurring episodes of depression" and even "clinical depression" were insufficient to establish that the applicant had a clinically well-recognised illness.

Further, the EAT in Morgan also concluded that it was for claimants to identify how they would establish that their illness was clinically well recognised and to adduce the necessary evidence. Departing from the line taken by the EAT in Goodwin v The Patent Office, it held that "tribunals are not inquisitorial bodies charged with a duty to see to the procurement of adequate medical evidence". This was particularly unhelpful for unrepresented claimants and did not sit easily with the overriding objective of the Employment Tribunals Rules of Procedure in force at the time4, which was to enable tribunals to deal with cases justly (and included, so far as practicable, ensuring that the parties were on equal footing, and that the case was dealt with expeditiously and fairly).

The "clinically well-recognised" test in para. 1(1) of Sch. 1 to the DDA often failed to deliver clarity for either party. It was not uncommon for medical experts to present differing views on whether an impairment was clinically well recognised and/or whether it was listed in ICD-10. In any event, this requirement added to the complexity of the definition and created an imbalance in the legislation, since there was no mirroring requirement for any form of physical impairment to be "clinically well recognised".

Section 18(2) of the Disability Discrimination Act 2005 has now amended Sch. 1 to the DDA (which supplements the definition of "disability" in s.1) to remove the requirement that a mental illness be "clinically well recognised" if it is to be the basis of "mental impairment".

The removal of this requirement, which took effect on 5 December 2005, is likely to mean that more employees with mental impairments are able to satisfy the definition of disability for the purposes of establishing rights under the DDA.

However, in most cases, any person who has a physical or mental impairment - including an impairment arising from or consisting of a mental illness - still needs to satisfy the remaining requirements that make up the basic definition of disability set out in s.1 of the DDA in order to enjoy the protection of the Act's provisions. Therefore, the impairment must be shown to have a substantial and long-term adverse effect on the person's ability to carry out normal day-to-day activities. These elements of the definition have themselves given rise to difficult issues in cases involving mental illness. As a result, despite the amendment, the following points continue to require particular consideration.

Effects of medication

An impairment (including a mental illness) will not be precluded from being classed as a disability if the adverse effect is kept in abeyance by medication, and would otherwise be substantial (para. 6(1) of Sch. 1 to the DDA provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having the effect that it would have without the measures in question). The legislation says that "measures" treating or correcting an impairment include "medical treatment and the use of a prosthesis or other aid" (para. 6(2) of Sch. 1). Certainly, "measures" is given a broad interpretation: the courts have held that counselling sessions with a consultant clinical psychologist constitute medical treatment, and are therefore "measures" to be disregarded under this provision (Kapadia).

Recurring or fluctuating effects

If an impairment has had a substantial adverse effect on a person's ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur. "Likely to recur" means that it is more likely than not that the effect will recur. Conditions with effects that recur only sporadically or for short periods can still qualify as impairments with "long-term" effects for the purposes of the DDA. This is particularly important in relation to mental illness as a number of mental health conditions - including schizophrenia, bipolar effective disorder and certain types of depression - can give rise to effects that recur or are sporadic.

The statutory guidance states: "If the substantial adverse effects are likely to recur, they are to be treated as if they were continuing. If the effects are likely to recur beyond 12 months after the first occurrence, they are to be treated as long-term … It should be noted that some impairments with recurring or fluctuating effects may be less obvious in their impact on the individual concerned than is the case with other impairments where the effects are more constant."

The guidance illustrates the points with examples:

  • A young man has bipolar affective disorder, a recurring form of depression. The first episode occurred in months one and two of a 13-month period. The second episode took place in month 13. This man will satisfy the requirements of the definition in respect of the meaning of long term, because the adverse effects have recurred beyond 12 months after the first occurrence and are therefore treated as having continued for the whole period (in this case, a period of 13 months).
  • A woman has two discrete episodes of depression within a 10-month period. In month one she loses her job and has a period of depression lasting six weeks. In month nine she suffers a bereavement and has a further episode of depression lasting eight weeks. Even though she has experienced two episodes of depression she will not be covered by the Act. This is because, as at this stage, the effects of her impairment have not yet lasted more than 12 months after the first occurrence, and there is no evidence that these episodes are part of an underlying condition of depression that is likely to recur beyond the 12-month period.

Against this background, it should be noted that the Joint Parliamentary Scrutiny Committee on the Draft Disability Discrimination Bill had felt moved to make a proposal aimed at further improving employment protection for people with the specific mental health problem of depression. The committee recommended that people experiencing separate bouts of depression totalling six months over a two-year period should be considered, for the purposes of the DDA, to have a long-term impairment. The proposal reflected concern that even relatively short periods of depressive illness can result in serious long-term stigma and discrimination.

Although the proposal was not accepted by the government, the "loophole" that the committee seemed to be trying to address might have been remedied to some extent by Swift v Chief Constable of Wiltshire Constabulary. In this case, the EAT considered the correct approach to take in relation to impairments with sporadic effects and held that such impairments can be covered by s.1 of the DDA; there is no need for an effect actually to be continuous throughout the relevant period provided that it is more likely than not to recur. When considering if a mental illness is a recurring condition, the correct approach is to ask:

  • Was there at some stage an impairment that had a substantial adverse effect on the individual's ability to carry out normal day-to-day activities?
  • Did the impairment cease to have such an effect and, if so, when?
  • What was the substantial adverse effect?
  • Is that substantial adverse effect likely to recur?

It seems that, although the likely future effect must be the same as the earlier effect, there is no time limit on the recurrence. Theoretically, as long as the substantial adverse effect is likely to recur once in a person's lifetime, it is treated as ongoing.

Of course, in cases involving depression, the removal of the "clinically well-recognised" requirement is, in itself, of significance too. For employees with some forms of depression this requirement had previously operated as a barrier to establishing that they had a disability. It is likely that more employees will be able to satisfy the new definition.

Past disabilities

Employers should remember that the provisions of the DDA apply in relation to someone who is no longer disabled, but who met the requirements of the definition in the past. This can be a particularly pertinent issue in relation to mental illness: this provision also recognises that, unfortunately, a previous episode of illness - even in the absence of any recurrent effects - can sometimes result in long-term stigma and discrimination. The statutory guidance illustrates this point with the following example: a woman who, four years ago, experienced a mental illness that had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities, but who has experienced no recurrence of the condition, is, as a person with a past disability, still entitled to the protection afforded by the Act.

Normal day-to-day activities

It remains the case that an impairment is to be taken to affect the ability of a person to carry out normal day-to-day activities only if it affects him or her in respect of one or more of the "capacities" listed in para. 4 of Sch. 1 of the DDA: mobility; manual dexterity; physical coordination; continence; ability to lift, carry or otherwise move everyday objects; speech, hearing or eyesight; memory or ability to concentrate, learn or understand; or perception of the risk of physical danger. Although concern has been raised in the past on behalf of claimants that these capacities do not adequately encompass the range of effects that may accompany mental impairments, the statutory guidance does state that the capacities should be looked at "in a broad sense and applied equally to both physical and mental impairments". By way of example, it states: "It is often assumed that for people with a mental impairment the relevant capacity will be 'memory or ability to concentrate, learn or understand'. The capacities of mobility and physical coordination, for example, are often seen as relevant only where there is a physical impairment. However, in many instances this will not be the case. A person with a mental impairment may also have difficulties carrying out activities that involve mobility or other 'physical' skills, and people with a physical impairment may also have effects that involve mental processes such as the ability to concentrate (for example, as a result of pain or fatigue)."

A report by the Joint Parliamentary Scrutiny Committee on the Draft Disability Discrimination Bill had recommended that the Schedule should include the following capacities in relation to which people with mental health problems may experience particular difficulties:

  • ability to care for oneself;
  • ability to communicate and interact with others; and
  • perception of reality.

This proposal was not, however, accepted.

Mental impairment that is not mental illness

It should be remembered that the "clinically well-recognised" requirement was, in any event, triggered only in those cases where a mental impairment resulted from or consisted of mental illness. It had already been established - prior to the December 2005 amendment - that mental impairments not resulting from or consisting of "mental illnesses" could fall within the s. 1 definition without the "clinically well-recognised" issue needing to be addressed. The EAT in Dunham v Ashford Windows held that a person with generalised learning difficulties had a mental impairment but not one resulting from a mental illness. It was not necessary to consider whether or not there was a clinically well-recognised illness in such a case. The December 2005 amendment is therefore of no particular significance in these cases.

Effect of amendment

In spite of the December 2005 amendment, it is clearly still necessary to apply a fairly complex definition to mental impairments. Nevertheless, the removal of the "clinically well-recognised" requirement should at least focus attention on the effect that a condition has on ability to carry out everyday activities, rather than on the condition itself. Effectively, a similar approach to that taken by the court in Dunham would now seem appropriate in all cases involving mental impairment. In other words, claimants would still need to demonstrate an impairment by reference to its effects but, having done so, would not be required to address the further question of whether or not there is a clinically well-recognised illness. This simpler approach would apply regardless of whether or not the impairment results from or consists of mental illness. Although various complexities remain, this represents a degree of simplification.

Persons deemed to be disabled

Section 18(3) of the Disability Discrimination Act 2005 further amended Sch. 1 of the DDA by inserting a provision that a person who has cancer, HIV infection or multiple sclerosis is to be deemed to have a disability. This change also took effect from 5 December 2005. Effectively, persons with these conditions are now protected by the provisions of the DDA from the point of diagnosis.

Prior to this amendment, the position was more complex: a person with any of these conditions was denied the protection of the DDA unless he or she had an impairment that satisfied the essential elements of the basic definition of disability contained in s.1, discussed above.

In many cases involving individuals with progressive conditions, it would not be straightforward to demonstrate that this definition was satisfied, notwithstanding that, prior to December 2005, para. 8 of Sch. 1 to the DDA already made special provision for "progressive conditions (such as cancer, multiple sclerosis or muscular dystrophy or infection by the human immunodeficiency virus)". Under para. 8, which remains in force, progressive conditions are treated as impairments that have a substantial adverse effect if:

  • any impairment resulting from that condition has an effect (though not a substantial adverse effect) on ability to carry out normal day-to-day activities; and
  • the condition is likely to result in the person having an impairment that has a substantial adverse effect.

Although this provision assists some people with progressive conditions to show that the definition of disability is satisfied, it does not - operating alone - ensure protection for all those with progressive conditions who experience discrimination. Notably, a person with a progressive condition would not be covered until at least the point at which the impairment actually affected ability to carry out normal day-to-day activities. Even then, it would still be necessary to demonstrate that the effect was long term.

For this reason, the 2005 amendment, which inserted a new para. 6A to Sch. 1 to the DDA, is of considerable significance. The change should ensure that individuals with cancer, multiple sclerosis or HIV infection are now protected from the point of diagnosis (and no longer need to wait for the impairment to affect their day-to-day activities). The new provision will give greater certainty that the statutory definition of disability is satisfied in all cases involving persons with one of these conditions. This, it is hoped, will allow courts or tribunals to focus on the fairness of the claimant's treatment by his or her employer, rather than on the individual's medical condition.

Cancer

Controversially, the government had originally proposed to exclude certain "minor" cancers from the scope of automatic coverage under the DDA. Indeed, the 2005 Act includes regulation-making power that would allow the government to provide that an individual who has "cancer of a prescribed description" is not deemed to be disabled under the new provisions. The government proposed that "cancer of a prescribed description" would encompass those cancers (mainly skin cancers) that were not likely to require substantial treatment. Critics argued that this would lead to complexity and uncertainty and would mean that a number of individuals would continue to be denied access to justice.

Following consultation and lobbying by the DRC, and in the light of a review of evidence of the extent of discrimination faced by people with more minor forms of cancer, the government decided not to exercise the 2005 Act's regulation-making power. The Parliamentary Under-Secretary of State for Work and Pensions, Anne McGuire, concluded that "it is not possible to distinguish effectively between those people whose cancers are likely to go on to require substantial treatment and those whose cancers are not and that to attempt to do so would introduce uncertainty and complexity into the definition of disability. This would lead to unfair and unequal outcomes for disabled people, and make it difficult for employers … to understand and comply with their duties. Treating all people who have cancer as disabled people ensures a straightforward approach, which will provide equity of outcome, while having minimal consequences for employers."

Impact of 2005 changes

The 2005 amendments to the definition of disability mean that employers have duties under the DDA to a wider category of employees. As well as protecting disabled individuals from less favourable treatment or harassment, the DDA imposes a positive obligation on employers to make reasonable adjustments for disabled people. The extended definition means that it is more important than ever that employers:

  • recognise the diverse nature of disability;
  • avoid making assumptions;
  • find out about disabled people's needs;
  • seek expert advice where necessary;
  • plan ahead;
  • implement anti-discriminatory policies and practices;
  • audit policies and procedures;
  • monitor success of anti-discrimination measures; and
  • resolve disputes effectively.

The extended definition will capture more "hidden" disabilities within the Act's scope. This is particularly important for employers to appreciate because unlawful discrimination can occur even where they are unaware of a person's disability. Employers should recognise the diverse nature of disability and consider the effects of an impairment throughout the employment relationship. By considering which aspects of employment create difficulties for a disabled person, they will be able to make appropriate adjustments. Indeed, it is the duty to make reasonable adjustments where a provision, criterion, practice or physical feature of premises places a disabled person at a substantial disadvantage that underpins the DDA.

As the scope of the Act widens, there seems to be a case for employers to focus less on the precise medical condition of the employee and more on the fairness and reasonableness of how each employee with an impairment is treated. This approach is at the centre of the DRC's proposals for further change to the definition of disability.

DRC proposals for the future

According to the DRC, the removal of the requirement that a mental illness be clinically well recognised and the automatic coverage for people with cancer, HIV infection or multiple sclerosis, are welcome developments. However, it says more needs to be done to remove barriers preventing access to justice for many people with disabilities and long-term health conditions, and to create greater certainty for employers about their duties.

An example of how the present definition causes considerable difficulties - and an inequitable result - is Gittins v Oxford Radcliffe NHS Trust. Mrs Gittins was a nurse who was denied employment on the basis that she had bulimia nervosa. The hospital trust concerned did not seek to justify its decision, but successfully argued that, since Mrs Gittins' impairment did not constitute a disability under the DDA, she was not legally entitled to challenge the decision.

The DRC, which consulted on a change to the definition of disability between December 2005 and March 2006, recently recommended that disability discrimination law move away from protecting a group of "disabled people", and instead protect anyone who experiences discrimination on the grounds of an impairment. In Gittins, the proposed change would have made it easy for the claimant to establish that she was entitled to protection against discrimination; the case would have focused instead on whether the trust could have justified its refusal to employ her because of its perceptions of the risks associated with her impairment.

Specifically, the DRC has proposed that the DDA definition of disability should be

changed so that the Act gives protection from discrimination to everyone who has (or has had or is perceived to have) an impairment. It has also proposed that the existing requirement to show that the effects of an impairment are "substantial" and "long-term" should be removed. In its view, such a change would:

  • ensure clear protection for all those who need it;
  • place the focus on the fairness and reasonableness of a person's treatment by his or her employer, rather than on the individual's medical condition;
  • produce a simpler, more certain approach for identifying who has protection;
  • provide better access to justice; and
  • produce a more positive approach, encouraging a more systemic stance on change and bringing the law into line with best practice.

The DRC does not underestimate the significance of this proposal. Certainly, it would mean that more people would potentially be able to claim protection from disability discrimination. Such changes would require regulatory impact assessment, wide public consultation and a strong communications campaign. Additionally, the proposal gives rise to risks and issues that would need careful management - for example, consideration would need to be given to the exclusion of particularly minor or transient conditions and to the question of how best to retain the current approach to positive discrimination and reasonable adjustments.

If the government responds positively to this proposal, it is expected that it will conduct a further, more extensive public consultation on whether and how to make any changes to the definition of disability. Any changes could be introduced by the single Equality Act, which the government has said it will introduce during the life of this parliament.

Disability equality duty

The DDA has been further amended by the Disability Discrimination Act 2005 to include a disability equality duty (DED) on all public authorities. The DED is aimed at promoting disability equality across the public sector. It provides a framework for public authorities to carry out their functions more effectively and to tackle discrimination and its causes in a proactive way, mainstreaming disability equality into all decisions and activities.

The duty will impact on the ways in which public authorities deliver services, perform functions and influence the community at large (for example by awarding licences or planning permission, and providing education). Importantly, it also impacts on public authorities in their capacity as employers.

All public authorities, including local authorities, the health and social care sectors and the education sector, have a duty to promote disability equality in their role as employers. Given that one in five people work in the public sector, the disability equality duty is a significant development in the employment field, and a potentially powerful tool for ensuring that public authorities develop employment practices that remove barriers to equ opportunities for disabled people.

Whereas the employment provisions in Part II of the DDA are about individual rights, the DED is about improving public authorities' policies and services as a whole for all disabled people. It is aimed at tackling institutional disability discrimination rather than providing restitution where a disabled person has been the subject of discriminatory treatment.

In an employment context, the DED requires public authorities to address the range of barriers - both environmental and attitudinal - that keep disabled people from making a full contribution as employees to the management and delivery of public services.

There are 6.8 million disabled people of working age in Britain, but only half are in work, compared with four-fifths of the non-disabled population. Disabled people with mental health problems have the lowest employment rates of all impairment categories, at 20%5. The Department for Work and Pensions' survey Disabled for Life?6 found that disabled people frequently believed they had encountered prejudice in the application process, and nearly half believed that employers were less likely to employ people with impairments than those without. Fewer than three-fifths always told potential employers about their impairment or long-term health condition. And 17% of disabled people said they had experienced discrimination in the workplace because of their disability.

These statistics reflect an employment environment that, for a variety of reasons - including the design and delivery of employment policies - does not effectively promote equality for disabled people.

The general duty

The duty to promote disability equality, or the general duty, applies to all public authorities (with a handful of specialised exceptions). It therefore covers a wide range of organisations including:

  • local authorities;
  • government departments;
  • health organisations;
  • education bodies;
  • universities;
  • housing associations;
  • inspection bodies; and
  • police authorities.

It also applies to any organisation that exercises some functions of a public nature. There is no definitive list of public authorities to which the general duty applies, as there is in the amended Race Relations Act 1976 (RRA) and Regulations made under it. All those that fall within the RRA's list of authorities covered by the race duty will also be subject to the disability equality duty (unless the subject of an exclusion from the Act).

The general duty is a duty on all public authorities, when carrying out their functions, to have due regard to the need to:

  • promote equality of opportunity between disabled people and other people;
  • eliminate discrimination that is unlawful under the DDA;
  • eliminate harassment of disabled persons that is related to their disabilities;
  • promote positive attitudes towards disabled persons;
  • encourage participation by disabled persons in public life; and
  • take steps to take account of disabled persons' disabilities, even where this involves treating disabled persons more favourably.

In the employment context, the duty is relevant to how authorities carry out their functions in relation to matters including, but not limited to, recruitment, development and retention of disabled employees. Compliance may necessitate consideration of policies and other aspects of the employment environment relating to, for example, induction, career development, appraisals, training, management systems, absence management, payroll systems, occupational health and discipline. Authorities should consider how they are having due regard to each element of the duty in each area of their functions as employers. We now consider the implications of each element of the duty in more detail.

Promote equality of opportunity

This is the over-arching goal of the duty. In common with all the other elements of the duty, it is not about individual rights but about considering how, at an organisational level, public authorities can promote equality for disabled people. The objective is that disabled people should have full opportunities and choices to improve the quality of their lives, and be respected and included as equal members of society. Disability equality is likely to figure significantly in all aspects of employment policy and practice, including recruitment, induction, training and organisational development, promotion, performance appraisal, disciplinary and grievance proceedings, and employee relations.

For example, a university, through its work on the DED, becomes aware that the majority of staff members who become disabled while in its employment are medically retired. As a result, the university - with the involvement of disabled employees - puts together a programme of measures to address this and to help promote disability equality. The programme provides for appropriate adjustments, rehabilitation and, where necessary, redeployment of members of staff who become disabled, and ensures that medical retirement is considered only as a last resort. It provides appropriate training for managers and closely monitors the new programme.

Eliminate discrimination

Public authority employers will already be familiar with the provisions of Part II of the DDA defining what amounts to unlawful disability discrimination against a disabled employee. The relevant provisions prohibit direct discrimination, unjustified less favourable treatment for a disability-related reason, harassment and victimisation, and impose a duty to make reasonable adjustments where a provision, criterion, practice or physical feature of premises places a disabled person at a substantial disadvantage.

The requirement to have due regard to the need to eliminate unlawful disability discrimination may require public authority employers to adopt a proactive approach to the reasonable adjustments duty - that is, to anticipate the needs of disabled people and make adjustments in advance. Prior to the implementation of the DED, the duty arose only where the employer knew or could reasonably have been expected to know that the person required adjustments. Public authorities may benefit from an organisational review of compliance with this requirement - with a particular focus on any policies relating to reasonable adjustments.

For example, a hospital trust that, prior to the DED, had only sporadic data on reasonable adjustments, decides to develop a reasonable adjustments policy to help ensure compliance with the duty to have due regard to the need to eliminate unlawful disability discrimination. The policy requires: that managers adopt a proactive and anticipatory approach to reasonable adjustments; that requests for reasonable adjustments are dealt with through an efficient system; and that data on reasonable adjustments is recorded and monitored.

Eliminate harassment

Evidence suggests that harassment is a significant issue for many disabled people. Employers will be aware that harassment has been explicitly prohibited under the employment provisions of the DDA since October 2004. Under the DED provisions, authorities must also have due regard to the need to eliminate disability-related harassment in its broad sense. The DED duty is not limited to harassment that is unlawful: it contemplates harassment as a broad concept that can take many forms including verbal abuse or comments that make an individual feel degraded or uncomfortable. In an employment context, the elimination of harassment may be achieved through a range of mechanisms. The DRC recommends that public authorities develop anti-harassment policies covering disability in agreement with employees and monitor the outcomes and effects of these policies.

An authority that implements an employment policy on harassment that does not prohibit harassment on grounds of disability is unlikely to be paying due regard to the need to eliminate harassment.

Promote positive attitudes

Authorities will need to consider what they can do to eliminate ignorance and prejudice. Disability equality training based on the social model of disability - founded on an understanding that functional limitations arising from disabled people's impairments do not inevitably restrict their ability to participate fully in society - will help to ensure that employees play their part in treating disabled people with respect. Positive attitudes may also be promoted by developing positive profiles of disabled staff throughout the workplace, and ensuring that positive images of disabled people and disability are used in internal and external communications.

For example, a government department is putting together a video for college recruitment fairs about the benefits of working for the department. It showcases real employees. As part of its work on disability equality the department ensures that disabled employees are featured positively within the video.

Encourage participation

The DED also requires public authorities to focus on encouraging participation by disabled people in public life, which is a key area where disabled people continue to be significantly under represented. Clearly, it is important that forums, groups or committees within the organisation are inclusive. However, when considering this element of the duty, authorities should also be aware of the further role they can play in their capacity as employers by supporting disabled colleagues who wish to take public office in addition to their work commitments. Appropriate actions could include ensuring that there are suitable policies in place to encourage such participation - arrangements for time off or flexible working should reflect this element of the duty.

For example, a local authority, through its work on the DED, has identified that a relatively low proportion of those staff members who are disabled are requesting time off under its scheme to support employees to undertake civic responsibilities (for example, on the boards of health bodies). The authority undertakes a series of actions to address this, including publicising the scheme through the disabled staff network and offering disabled members of staff support in negotiating adjustments in relation to any relevant appointment that they have the opportunity to take up.

Steps to take account of disabilities

The final requirement of the general duty represents the underpinning principle of the duty as a whole. This recognises that equality of opportunity cannot always be achieved simply by treating disabled and non-disabled people alike. This principle is already recognised in the employment provisions of the DDA through the duty to make reasonable adjustments. That duty, as recognised by the House of Lords in Archibald v Fife Council, may require more favourable treatment of disabled people in some circumstances.

For example, a disabled employee of a police authority needs a dedicated car-parking space because the public transport infrastructure is inaccessible to her. Non-disabled employees also want a parking space close to the workplace, but will not experience the same degree of disadvantage if they do not get one. The disabled employee may be prevented from doing her job if she does not have the space, while a non-disabled employee will merely be inconvenienced. More favourable treatment is necessary to provide equality of access to the workplace.

Due regard

Having "due regard" means that authorities should give due weight to the need to promote disability equality in proportion to its relevance. This requires more than simply giving consideration to disability equality. Proportionality requires greater consideration to be given to disability equality in relation to the matters that have the most effect on disabled employees. Where, for example, changing a proposed policy would lead to significant benefits for disabled staff, the need for such a change will carry added weight when balanced against other considerations.

Specific duties

Many public authorities are subject not only to the general duty but also to specific duties designed to help them meet the overall general duty effectively. At the heart of the specific duties is the requirement to produce a Disability Equality Scheme (DES).

The lists of authorities that are subject to the specific duties are contained in regulations made under the DDA7. Those covered include universities, colleges, local authorities, government departments, health bodies, police authorities, fire authorities and inspection bodies.

The DRC recommends that any organisation that is subject to the general duty, but not the specific duties - for example a privately run prison or a registered social landlord - should consider using the framework of the specific duties in any event as this is likely to be the most effective and structured way of meeting the general duty. The specific duties give a clear framework to help public authorities have due regard to the six elements of the general duty. This framework centres around the DES.

Disability Equality Scheme

Those public authorities that are subject to the specific duties were required to publish their DES by 4 December 2006, apart from a few exceptions8. The key elements that the DES must include are:

  • a statement of how disabled people have been involved in developing the scheme;
  • the action plan;
  • arrangements for gathering information about performance of the public body on disability equality;
  • arrangements for assessing the impact of the activities of the authority on disability equality and improving these when necessary; and
  • details of how the authority is going to use the information gathered, in particular in reviewing the effectiveness of its action plan and preparing subsequent schemes.

A public authority is required to publish an annual report containing a summary of:

  • the steps it has taken to fulfil its disability equality duty (the action plan);
  • the results of the information-gathering that it has carried out; and
  • what the authority has done with the information gathered.

Authorities also have an obligation to revise the DES every three years.

Most authorities are likely to have produced a DES for the whole organisation to cover a wide range of functions. However, authorities will need to ensure that the scheme provides an appropriate structure to satisfy the requirements of the duty in the more specific context of their role as an employer. Indeed, while a large public authority may produce an overarching DES for all its departments and functions, the DRC strongly recommends that each individual department considers its own evidence base and draws up a specific action plan to feed into any authority-wide scheme.

It should also be remembered that the DES is simply the mechanism by which the general duty can be effectively delivered; developing the DES is just the beginning of the work of the organisation on the general duty.

Involving disabled people

While the specific duties require authorities to involve disabled people in the development of their DES - which in most cases should have already been published - it will enhance an authority's ability to realise improved disability equality outcomes if ongoing involvement of disabled people in other relevant matters is also considered.

Involvement requires more than mere consultation - it is about active engagement with a range of employees who reflect the diverse nature of disability. Some authorities may be achieving this through involvement with staff groups, trade unions, a disabled staff network or groups involving disabled people from the wider community who may be potential employees. This involvement should be inclusive and accessible and be valued at a senior level as part of the employees' contribution to the development of the organisation. The DRC has produced guidance on involving disabled people9.

For example, a university facilitates the development of a disabled staff group to support its aim of improving disability equality outcomes. Fully accessible meetings during working time are arranged and participation in the group is included in the objectives for the relevant staff. The university makes a commitment to supporting the long-term development of the group and involving disabled people in monitoring the work on disability equality.

Gathering information

To inform their DES, authorities will have set out arrangements for gathering information on the effect of policies and practices on disabled people. Authorities must also have set out arrangements for making use of the information, to assist them in meeting the general duty, in reviewing the effectiveness of their action plan and in preparing subsequent schemes.

The information will help to identify areas where the authority is doing well on promoting disability equality and areas where its performance is not so good. It needs to be detailed enough to enable the authority to measure its delivery on disability equality in different areas. Often information will show up a particular pattern or trend and this should act as a trigger to investigate further.

In an employment context, information about disabled employees has traditionally focused on recruitment and been basic in scope. It is not unusual for it to be limited to data showing how many individuals who are employees or who have applied for jobs consider themselves to be disabled. This kind of information, while useful, provides a very limited picture. For DED purposes, a much wider range of information is required to inform a range of actions covering recruitment, retention and development.

This might be achieved through disaggregating current information or introducing additional sections within existing monitoring systems to capture new data on disability. For example, an annual staff survey might be used to gather information relating to disability and to allow disabled people to identify specific barriers to equality. Other key mechanisms, such as appraisals and training forms, can also be used to identify if there are unequal outcomes for specific groups of disabled people. The information collated needs to be sufficiently detailed to inform actions to promote disability equality. Information on impairment and barriers faced will be particularly helpful. A range of suggested monitoring questions are contained within the DRC guidance on evidence-gathering10.

Public authorities should recognise that some disabled people are reluctant to declare that they have a disability. Others may not view themselves as disabled even though they may have an impairment that satisfies the statutory definition of disability in s.1 of the DDA. To address these points, authorities should provide assurances about confidentiality and the purposes of obtaining the data, as well as information about what is meant by a disability.

Gathering information is an ongoing process and mechanisms need to take account of this. Data will continue to change - for example, existing employees who do not consider themselves to be disabled may become disabled while in the authority's employment.

Finally, authorities should remember the overall aim. Gathering information is essential but is not an end in itself: the information must be used to inform actions in relation to the duty.

The action plan

The specific duties require the action plan to be set out in the DES. The action plan sets out the key actions that the authority is taking to promote disability equality over the period of the DES. The steps set out must be taken by the authority unless it becomes impracticable or unreasonable for it to do so (this is likely to be the case only rarely).

The action plan should be aimed at making practical improvements to achieve equality for disabled people. It should identify specific target outcomes against which performance can be monitored. It is likely that actions will have been prioritised with the involvement of disabled people. These actions need to be realistic, focused and achievable, and should cover all elements of the general duty discussed above.

Impact assessment

The DES should also include details of the authority's agreed methods for assessing the impact (or likely impact) of its policies and practices on equality for disabled people.

The purpose of impact assessments is to ensure that the authority's activities do not disadvantage disabled people and to identify where it can best promote equality of opportunity. If an assessment identifies a negative impact or missed opportunity to achieve a more positive impact, the authority should look at what it can do to address this.

Within the employment context, it is likely that a large number of policies - such as recruitment policies or absence management policies - will need to be considered for a disability equality impact assessment over time. Authorities should prioritise these with the involvement of disabled people and establish a clear timetable for undertaking the range of impact assessments necessary. This will allow them to formulate actions either to mitigate any negative impact or to maximise any missed opportunities.

For example, a district council is assessing the impact of its policy relating to support for members of staff who wish to take up public appointments or specific civil responsibilities including school governor appointments. Disabled people have raised concerns about this and evidence gathered shows that very few disabled employees have requested support under the authority's relevant scheme. The DED specifically requires public bodies to have due regard to the need to encourage participation in public life. The impact assessment highlights difficulties with the criteria that are applied to establish eligibility under the scheme, namely that only staff members who have been with the council for three years are given paid time off for civic responsibilities. The scheme is not available to newer members of staff, yet many disabled staff members are new to the authority following a recruitment campaign the previous year. The policy is therefore having a disproportionate adverse impact on disabled employees. To address this issue, it is decided that all staff should have the same right to time off. In addition, there are currently a significant number of vacancies for school governors. Discussions are therefore held with the governing body unit within the children's directorate, with a view to encouraging greater participation by disabled employees in this particular aspect of public life.

New and existing policies will need to be considered for an impact assessment. With regard to any new policy, the impact should be considered from the outset and throughout the policy's development. The process will not be effective if the impact assessment is simply "tagged on" at the end. The DRC recommends that authorities involve disabled people in the impact assessments of key employment policies.

For example, a district council is starting to develop a policy on hot-desking to deal with the impact of increasing staff numbers and reduced office space. An initial impact assessment demonstrates that the plans could have a serious negative impact on disabled people. Those particularly affected include employees who have assistive technology, those with a requirement for particular furniture and those who need to be in specific locations or environments (such as near a window for natural light). Consideration is given to various ways of mitigating this impact while still meeting the goal of reducing desk space. A decision is made to continue with hot-desking. However, the number of desks that will be lost is reduced and fixed workstations are maintained for disabled staff for whom hot-desking is not appropriate.

In addition to conducting formal impact assessments of policies, authorities need to mainstream disability equality considerations into day-to-day operational decisions. In the employment context, it is important that those who are likely to be taking relevant decisions, such as middle managers, are provided with appropriate advice and training.

The DRC has provided guidance on impact assessments11.

External inspection

Inspection authorities will need to build the DED into their assessments of public authorities, as they themselves are subject to the duty. It is anticipated that this will help make the duty work effectively.

Procurement and commissioning

It is essential that consideration is given to procurement arrangements, including contracts, to ensure that these are supporting the public authority in meeting the duty. This can be particularly important in an employment context. Further advice is given in the DRC Codes of Practice on the Duty to Promote Disability Equality12.

After publication

Most public authorities should now have published their DES, but in many ways this is just the beginning. The core of the work is:

  • taking forward the actions;
  • improving the performance of the authority through the outcomes of impact assessments;
  • building up the information base about performance on disability equality; and
  • actually improving the employment prospects and the employment experience of disabled people.

In addition to the requirement to report annually - discussed above - the DES should be regularly reviewed; it can last for up to three years. Information gathered and used to review the effectiveness of the action plan will help inform subsequent schemes.

Enforcement

The general duty has no specific enforcement method attached to it. A public authority that does not comply with the duty may, however, be subject to a judicial review - as it would for breach of any other statutory duty.

If a public authority does not comply with its specific duties, it could face action by the DRC or its successor body, the Commission for Equality and Human Rights. This could entail the issue of a compliance notice stating that the authority must meet its duties and tell the DRC what it is doing to comply with these duties. The notice can also request information regarding the authority's performance. A compliance notice can be enforced in the county or sheriff court.

Outcomes

In an employment context, public authorities can expect success to be reflected across a range of outcomes including:

  • higher numbers of disabled employees;
  • more disabled people achieving promotion;
  • higher average appraisal scores for disabled people;

  • increased positive feedback from disabled staff about training; and
  • a decrease in incidents of harassment related to disability.

These and other related outcomes across the public sector would represent a significant contribution to closing the huge gaps that exist for disabled people in employment.

Additional amendments

Further changes to the DDA introduced by the Disability Discrimination Act 2005 include provisions relating to discriminatory advertisements and councillors.

From 5 December 2005, third-party publishers such as newspapers may be liable for publishing discriminatory advertisements (s.16B of the DDA).

Prior to this amendment, it was unlawful, in any event, for the person offering the job to publish a discriminatory advertisement or cause such an advertisement to be published. As a result of the amendment, liability may now also extend to the third-party publisher of the advert.

The advertisement is unlawful if it might reasonably be understood to indicate that the success of a person's application for a post may depend to any extent on his or her not having (or having had) any disability or any particular disability, or that the person determining the application is reluctant to make reasonable adjustments. The DRC code of practice gives the following example.

An advertisement for an assistant in office supplies stipulates that a driving licence is required. The post itself does not involve significant amounts of driving, and reasonable adjustments to this element of the job would be possible. However, the advertisement implies that the employer is unwilling to make such adjustments, for example by allowing travel by taxi or allocating the driving to someone else. This is likely to be unlawful.

There are circumstances in which an advertisement may be lawful even if it does indicate that having a particular disability will adversely affect an applicant's prospects of success. This will be the case where, for example, because of the nature of the job in question, the employer is entitled to take the effects of the disability into account when assessing applications. Again, the DRC code of practice illustrates this with an example. It would be lawful for a company specialising in inner-city bicycle courier services to advertise for couriers who "must be able to ride a bicycle".

This applies to all forms of advertisement or notice, whether to the public or not, for any employment, promotion or transfer of employment.

The amended provisions allow the publisher of the advertisement to avoid liability if he or she proves that the advertisement was published in reliance on a statement made by the person who caused it to be published, to the effect that publication would not be unlawful (although it must also have been reasonable for the publisher to have relied on this statement). It should be noted that a person who knowingly or recklessly makes a statement to this effect that is false or misleading commits an offence and can be fined on conviction.

From 5 December 2005, councillors have been protected from less favourable treatment for a reason related to their disability in connection with the carrying out of official business. From the same date, the DDA has also protected councillors from harassment.

Section 15A of the DDA lists those locally electable authorities that are covered by these provisions. They include the Greater London Authority, a county council (in England and Wales), a county borough council (in Wales), a district council (in England), a London borough council, a council constituted under s.2 of the Local Government etc (Scotland) Act 1994, a parish council (in England) and a community council (in Wales or Scotland).

From 4 December 2006, the DDA was further amended so that the locally electable authorities listed in s. 15A now also have a duty to make reasonable adjustments to any provision, practice or criterion or to any physical feature of premises that places a disabled councillor at a substantial disadvantage. This duty, provided for in s. 15C of the DDA, applies in connection with the carrying out of official business.

The DRC intends to public specific guidance on the new duties relating to councillors.

This feature was contributed by Martin Crick, legal officer at the Disability Rights Commission and editor of its legal bulletin.

CASE LIST

Archibald v Fife Council [2004] IRLR 651
Dunham v Ashford Windows [2005] IRLR 608
Gittins v Oxford Radcliffe NHS Trust EAT/193/99
Goodwin v The Patent Office [1999] IRLR 4
Kapadia v London Borough of Lambeth [2000] IRLR 699
Morgan v Staffordshire University [2002] IRLR 190
Swift v Chief Constable of Wiltshire Constabulary [2004] IRLR 540

1Disability Discrimination Act 1995 (Amendment) Regulations 2003 (SI 2003/1673).
2Disability Discrimination Act 1995: Code of practice (PDF format, 754K).
3Disability Discrimination Act: Guidance on matters to be taken into account in determining questions relating to the definition of disability (PDF format, 127K).
4Reg. 10 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (SI 2001/1171).
5Disability Briefing (March 2006, DRC).
6www.dwp.gov.uk/asd/asd5/173summ.asp.
7Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 (SI 2005/2966) and Disability Discrimination (Public Authorities) (Statutory Duties) (Scotland) Regulations 2005 (SSI 2005/565).
8Primary schools in England must publish their DES by 3 December 2007 and all schools in Wales must publish theirs no later than 1 April 2007.
9The Disability Equality Duty and involvement: Guidance for public authorities on how to effectively involve disabled people (July 2006, DRC).
10 www.drc.org.uk/employers_and_service_provider/disability_equality_duty/getting_started/
evidence_gathering.aspx.
11www.drc.org.uk/employers_and_service_provider/disability_equality_duty/getting_started/
impact_assessments.aspx.
12www.drc.org.uk/employers_and_service_provider/disability_equality_duty/getting_started/
codes_of_practice.aspx.