CHALLENGING DISABILITY DISCRIMINATION AT WORK BY MARY STACEY AND ANDREW SHORT
Mary Stacey is a solicitor specialising in employment and discrimination law. Andrew Short is a barrister at Coram Chambers. He specialises in employment law and has a particular interest in disability discrimination. This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the authors. The responsibility of the Institute is limited to approving its publication as worthy of consideration within the labour movement.
ISBN 1 873271 79 4 August 2000 published by the Institute of Employment Rights 177 Abbeville Road London SW4 9RL 020 7498 6919 fax 020 7498 9080 e-mail ier@gn.apc.org www.ier.org.uk printed by Upstream (TU) 020 7207 1560 ÂŁ6.50 for trade unions and students ÂŁ20 others THE
INSTITUTE OF
EMPLOYMENT RIGHTS
challenging disability discrimination at work by Mary Stacey and
executive summary
Andrew Short
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contents
executive summary
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CHAPTER 1
introduction
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CHAPTER 2
the meaning of disability physical or mental impairment specific exclusions adverse effect upon normal day-to-day activities normal day-to-day activities and work substantial... adverse effect severe disfigurement progressive conditions medical treatment and other corrective measures long term adverse effect recurring conditions past impairments omissions medical and other evidence of disability
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CHAPTER 3
who is protected? small businesses geographic limits ex-employees qualifying bodies other exclusions advertisement occupational pensions insurance
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contents
scope of protection in the field of employment
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CHAPTER 4
discrimination by less favourable treatment ‘for a reason which relates to his disability’ less favourable treatment and knowledge workers treated less favourably than others to whom that reason does not or would not apply and the employer ‘cannot show that the treatment in question is justified’ examples justification and the duty to make adjustments conclusion
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CHAPTER 5
employer’s duty to make reasonable adjustments substantial disadvantage arrangements and physical features knowledge the employer’s duty: reasonable steps justification case law conclusions
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CHAPTER 6
discrimination by victimisation
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CHAPTER 7
challenging disability discrimination at work
enforcement and remedies
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Disability Rights Commission policies tribunal remedies pre-tribunal settlements tribunal procedure: time limits procedure and remedies where premises are occupied under a lease
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CHAPTER 8
conclusions and recommendations
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useful addresses
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endnotes
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recent publications
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executive summary
I 2nd December 2000 will be the fourth anniversary of the coming into force of the employment provisions of the Disability Discrimination Act 1995 (DDA). The DDA was seen as a long overdue measure to give disabled people legally enforceable rights in the employment field and in the provision of goods and services This publication reviews the operation of that Act by analysing the case law that has developed over the period since the Act was first introduced. I The first issue to be considered (Chapter 2) is that of the meaning of disability. Some of the most difficult cases have been on the issue of what amounts to a disability within the meaning of the DDA. Cases under other anti-discrimination statutes rarely turn on whether a particular applicant falls within the protection of the relevant legislation. In contrast, such disputes are a regular feature of cases under the DDA with employers routinely disputing that an applicant is disabled within the meaning of the Act.
I Chapter 4 analyses discrimination consisting of less favourable treatment of disabled people for a reason relating to their disability and shows how the Sex Discrimination and Race Relations Acts are unreliable guides to the key concept of discrimination by less favourable treatment. With reference to case law, we go on to
executive summary
I The second issue to be considered (Chapter 3) is that of the scope of the protection offered by the DDA. We look at how the DDA offers disabled people protection in the arrangements employers must make for the purpose of determining who should be offered employment; the terms on which such employment is offered and when it is unlawful for an employer to refuse to offer employment.
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break down the issue of less favourable treatment of disabled people into three parts. Firstly, the disabled person must show that the treatment they are complaining about was for a reason relating to their disability. Secondly, they must show that the treatment was less favourable. Third, if the disabled person can prove these two things, discrimination will be established unless the employer can show that the treatment was justified. I In Chapter 5 we explain how the DDA has introduced a completely new concept into discrimination law – that of a positive duty on employers to make reasonable adjustments to assist disabled people. The aim of this duty is to create genuine equality of opportunity for disabled people and ensure fair treatment at, and equal access to, work. The way work and workplaces are structured creates barriers for disabled people and the aim of the legislation is to remove those barriers where it is reasonable to do so. The concept of adapting the work and the workplace to a disabled employee or job candidate as a means of enabling and empowering disabled workers is new in UK law and one that trade unions are increasingly acknowledging and using.
challenging disability discrimination at work
I Chapter 6 looks at discrimination by victimisation and here comparisons can be made with the concept of victimisation as developed by the Race Relations and Sex Discrimination Acts. The right, in essence, is to protection from less favourable treatment for having asserted or referred to rights under the DDA – whether for oneself or others. Unlike other employment rights created by the DDA, the protection from victimisation applies to all employees (and job applicants and contract workers), not only those with a disability.
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I In Chapter 7 we consider how the rights introduced by the DDA are to be enforced and the likely remedies for those who suffer discrimination. Analysing data based on detailed research of the first 2,500 cases lodged under the DDA, this Chapter highlights the lack of awareness surrounding the protection offrered by the Act and the positive role unions can play in raising awareness of the new rights. We go on to look at the role and powers of the Disability Rights Commission and the need for employers to agree an equal opportunites agreement and appropriate training if they want to avoid discrimination claims. We also look at the three main remedies available for those discriminated against and highlight the time limits for bringing a Tribunal claim.
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The definition of “disability” needs amending to include HIV from point of diagnosis and cancer from the moment it has a significant consequence on the life of the cancer sufferer.
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The gap between day to day and work activities should be narrowed to include things that are ordinarily to be found in work activities, such as standing for long periods of time.
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The small employer exemption should go (other than in private households), making the coverage of the Act universal.
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Whilst it remains, associated employers should be treated as one in calculating the number of employees for threshold purposes.
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Qualifying bodies should come within the scope of the DDA and the excluded professions, be included.
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Ex-employees should have protection from disability discrimination and victimisation by their former employer (or in the case of job applicants, would-be employer)
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The restrictions on pensions, insurance and performance related pay should be reconsidered
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The general defence of justification of discrimination in employment should be amended so as to permit discrimination only on specified, rational grounds such as that the individual would not be able to perform the essential functions of the job, or to protect health and safety.
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The employer’s justification defence in reasonable adjustment cases should be removed altogether as there is sufficient protection to employers since the duty does not extend beyond adjustments that are reasonable.
executive summary
I In our conclusions and recommendations (Chapter 8) we highlight some of the strengths and weaknesses of the Act as discussed in previous Chapters. During its short life, the DDA has undoubtedly raised the profile of disability discrimination issues in the workplace, contributing to attempts to secure comprehensive, enforceable civil rights for disabled people. But in the light of our research into the case law surrounding the operation of the Act to date, we believe a number of reforms are needed to make the Act fully effective:
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10 We favour the introduction of a positive duty on the State to promote equalisation of opportunities for disabled people in employment, at least in the public sector, both as employer and by using its purchasing power to promote compliance with equality legislation among contractors and suppliers to the public sector.
challenging disability discrimination at work
11 We also consider that details of any disability claims should be reported to shareholders in company annual reports.
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WHAT IS THE INSTITUTE? The Institute of Employment Rights was launched on 28th February 1989. As a labour law “think tank”, supported by the trade union movement its purpose is to provide research, ideas and detailed argument. In 1994 the Institute was granted charitable status. The Institute has attracted wide and distinguished support. Among the membership are John Hendy QC, Professor Keith Ewing, Lord McCarthy and the general secretaries of Britain’s largest trade unions. The results of the work of the Institute are published in papers and booklets. It also provides short articles, free of legal jargon, for trade union journals and other publications. The Institute provides tools of analysis and debate for the trade union movement in the area of labour law. We are not a campaigning organisation. The Institute does not assume that legal measures can offer ultimate solutions for political, economic and social problems. However, it recognises that law has a part to play in influencing the employment relationship, both individually and collectively. Funding is from various sources, including subscriptions which entitle subscribers to a copy of all our new publications. If you are interested in subscribing or would like to know more about the Institute, then contact us at 177 Abbeville Road, London SW4 9RL, 020 7498 6919.
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