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disability-related

    edition 2

    written by

    Tamara Lewis

    a Central London Law Centre publication

    2

    Contents

Introduction 3

Overview 4

Who is “disabled” under the DDA? 6

    What is disability discrimination? 11 Reasonable adjustments

    The law: the duty to make reasonable adjustments 13

    Access to Work 16

    A management strategy 19

    Building confidence 20

    Communication and language 21

    Reasonable adjustments:

    some ideas appropriate to many disabilities 23

    Responsiveness to disability in management functions Recruitment 31

    Disciplinaries and grievances 32

    Managing disability-related absence 34

    The public sector equality duty 37

    The public authority Disability Equality Duty 38

Directory of Impairments 101

    See index on pages 00-00

    Index of impairments 00

    3

    Introduction

The employer‟s duty to make reasonable adjustments is at the heart of the

    Disability Discrimination Act 1995. This Guide sets out the law and provides

    examples of appropriate adjustments, good practice, and sources of further ideas.

Every individual experiences his or her disability very differently. It is crucial not

    to make generalisations. Some people will experience little effect on their day-to-

    day activities and will manage at work quite easily. Others will have severe

    effects. It is therefore essential to listen to what workers say about the daily

    effects of their disability, and let them identify the difficulties they have at work.

    It is also important for an employer to be aware that many people have “coping strategies” and have found ways around the effects of their disability. This can

    sometimes disguise the amount of effort involved and the need for adjustments.

When employers gain information and knowledge by some advance research

    into the relevant disability, it should help build the worker‟s confidence as well as

    giving managers ideas of areas to explore with the worker.

This Guide has not been written by a doctor and is not intended to provide

    medical information or advice.

The Guide is based on the law as it is as known at 1

    st February 2009. However, it

    is designed to encourage good practice and is not a substitute for appropriate

    legal advice. The author can take no responsibility for actions taken based on the

    information contained in the booklet.

    Many thanks to solicitors Philip Tsamados (Pollecoff solicitors) and Catherine

    Scrivens (Central London Law Centre) and training consultant John Twitchin

    (Diversity Works Ltd) for their helpful comments and suggestions. Thanks also to

    Nuffield for funding this publication.

    ? Tamara Lewis

    1.11.05.

    4

     Overview

    The main things you need to know about the Disability

    Discrimination Act 1995 (“DDA”).

? The DDA covers discrimination in several areas including

    employment (part II) and the provision of goods, facilities

    and services (part III). The law is similar in each area but

    not identical. This guide only concerns discrimination in

    employment.

    ? The Equality and Human Rights Commission (EHRC) is the

    body with responsibility for overseeing the operation of the

    DDA as well as other areas of discrimination law. It offers

    practical guidance to employers for ensuring disabled

    people are treated fairly.

? There are numerous specialist organisations for different

    disabilities which provide useful advice and guidance to

    employers. Many of these are referenced in this guide.

    ? There is no longer a small employer exemption. All

    employers must comply with the DDA.

? The DDA covers job applicants and anyone who works for

    you on a personal basis or through an agency or contracted WHO IS service provider. There is no minimum service requirement. COVERED page 00 ? There must be no discrimination at any stage of

    employment, eg recruitment, terms and conditions,

    promotion, handling of grievances and disciplinary action,

    dismissal and post-employment references.

? The DDA protects workers who have a disability as defined

    by the DDA. This is a technical definition, which can be

    difficult to apply. There is also legal Guidance on the

    definition. Its full title is Guidance on matters to be taken WHO IS into account in determining questions relating to the DISABLED definition of ‘disability’. page 00

    5

    ? Employees with at least one year‟s service have unfair

    dismissal rights. Even if an employee is not covered by the

    DDA, he or she must still not be unfairly dismissed due to

    ill-health or injury. However,the DDA gives additional rights.

    ? The most important part of the DDA is the employer‟s duty to make reasonable adjustments for a job applicant or REASONABLE ADJUSTMENTS worker where he or she has difficulties or is at a page 00 disadvantage in some way due to his or her disability.

    ? The duty to make reasonable adjustments can include

    treating the disabled worker more favourably than other

    workers. This is not preferential treatment. It is correcting a

    disadvantage.

    ? An employer must not discriminate against a worker on

    grounds of disability or for a disability-related reason.

    DISCRIMINATION page 00 ? You should have a copy of the Disability Rights

    Commission‟s Code of Practice. It gives many examples of reasonable adjustments. The Code is simple to understand,

    although rather long at over 200 pages. A hard copy can be

    can be ordered online from TSO or telephone 0870 600

    5522. It can also be downloaded from the EHRC‟s website at

    www.equalityhumanrights.com/en/publicationsandreso

    urces/Pages/CodeofPracticeEmploymentandOccupatio

    n.aspx

    ? Workers who feel they have been discriminated against can

    bring a case in an employment tribunal. The tribunal can award compensation for financial loss, injury to feelings,

    injury to health and interest. Average compensation

    awarded in disability discrimination cases during 2007 was ?20,928. In over 50% cases, awards were over ?10,000. The highest award was for ?187,614.

    ? In 4

    th December 2006, a new public sector disability duty

    was introduced, requiring public bodies to carry out their

    functions with due regard to the need to eliminate discrimination against disabled people and to promote

    positive attitudes towards them. The duty is broadly similar

    to the duty to promote race equality introduced by the Race

    Relations (Amendment) Act and the gender duty in the Sex

    Discrimination Act.

    6

    Who is “disabled” under the DDA?

The Disability Discrimination Act (DDA) protects workers who have a disability as

    defined in the Act. You may be surprised at the many forms of impairment which

    are covered.

Far more people meet the definition of disability under the DDA than qualify for

    statutory sick pay or incapacity benefit. According to the Department for Work

    and Pensions, every three months over 600,000 workers become sick or

    disabled using the definition of disability under the Disability Discrimination Act.

The DDA does not simply cover visible disabilities such as the need to use a

    wheelchair.

    In fact, only 5% of disabled people are wheelchair users. The DDA can cover:

    ? Physical and visible impairments.

    ? Sensory impairment.

    ? Invisible conditions, eg epilepsy or diabetes.

    ? Mental illness, eg depression or anxiety disorder.

    ? Other mental impairment, eg learning difficulties or dyslexia.

    ? Physical illness, whether temporary, permanent or fluctuating.

    ? Temporary injury, eg caused by an accident at or outside of work.

    ? Temporary incapacity, eg immediately before, during and after an

    operation.

Almost any condition can be covered by the DDA provided it is sufficiently

    serious and lasts (or will last) at least 12 months. The directory at pages 39 100

    lists many commonly covered conditions.

The question is not whether the named disability is covered by the DDA. It is

    whether the particular worker with the disability is covered. This will depend on

    the nature, severity and duration of the disability in the worker‟s individual

    circumstances.

In practical terms, there is no difference between what is conventionally known

    as a disability and what is regarded as an illness or health problem. The legal

    definition can apply to both. Sickness or injury which lasts 12 months or more

    and has notable adverse effects comes under the DDA.

Many unnecessary cases come to the tribunal because employers do not realise

    that the worker‟s condition is indeed covered by the DDA.

    7

    The legal definition

To meet the definition:

    ? A worker must have a physical or mental impairment.

    ? The impairment must have a substantial adverse effect.

    ? The effect must be on the worker‟s ability to carry out day-to-day activities

    under at least one of the categories listed in the DDA. ? The effect must be long-term.

The day-to-day activities

The categories of day-to-day activities listed in the DDA are intended to cover

    almost any disability:

    ? Mobility. This includes sitting, standing, climbing stairs.

    ? Manual dexterity.

    ? Physical coordination.

    ? Continence.

    ? Ability to lift, carry or move everyday objects.

    ? Speech, hearing or eyesight.

    ? Memory or ability to concentrate, learn or understand.

    ? Perception of the risk of physical danger.

Adverse effect

It is not necessary that the worker is entirely unable to carry out a particular

    activity. It is enough if:

    ? The activity causes pain.

    ? The activity causes fatigue, either on doing the activity once, or on

    repeating it over a period of time.

    ? The worker has been medically advised to refrain from the activity or only

    to do it in a certain way or under certain conditions.

    ? The effect is worse at certain times of day or at certain temperatures, or

    when the worker is tired or under stress.

    ? The worker can only do the activity in a restricted or different way, eg

    using a shoulder bag when unable to carry a bag by hand or unloading

    shopping trolleys in small quantities.

Substantial adverse effect

Many conditions may or may not be a disability according to the impact on the

    particular individual. For example, one worker with a back impairment may be

    disabled, whereas another may not. The key factor is usually the seriousness of

    the effects of the impairment.

    8

The DDA talks about the impairment having a “substantial” adverse effect. The

    legal Guidance says “substantial” simply means something more than minor or

    trivial.

It is also possible that the impairment will not have a substantial adverse effect

    on any single one of the listed activities, but may have a minor effect on several

    of them which adds up to a substantial adverse effect.

The effect without medication

Where the effect of the impairment is reduced or controlled by medication,

    medical treatment or an aid, its impact should be measured as it would be

    without such medication. This is known as the “deduced” effect.

This may seem odd, because the medication may be so effective that the worker

    appears to have no difficulty carrying out his or her work duties. However, the

    DDA is only concerned at this stage with whether someone meets the definition

    of having a disability. If a worker requires medication to keep the effects of an

    impairment at bay, then he or she is disabled.

For example:

    ? A worker‟s ability to hear should be assessed without the benefit of any

    hearing aid he or she wears.

    ? Where a worker‟s depression is alleviated by counselling sessions with a

    clinical psychologist, the effect should be assessed as it would be if he or

    she were not receiving such counselling .

The only exception is where sight is improved by glasses or lenses.

The definition focuses on what the worker cannot do

Employers can underestimate the effect of a disability because they are

    concentrating on everything which the worker is able to do.

But this is misleading. Legally, it does not matter that the worker can generally

    cope with life and can carry out most normal activities. It is enough that there is a

    substantial adverse effect on just one of the listed activities.

Unfortunately the law requires a rather negative approach in this way and it is

    necessary to be sensitive. You should also be aware that many disabled people

    “play down” the effect of their disability.

    9

Progressive conditions

    If the worker has a progressive condition, he or she is protected as soon as it has any effect at all on a day-to-day activity, if it is likely that in the future, the effect will become substantial. An example may be rheumatoid arthritis or muscular dystrophy.

Long-term effects

    The substantial adverse effect must also be long-term, ie 12 months or for the rest of the worker‟s life if less than 12 months. It does not matter if, at the time of

    the discrimination, 12 months have not yet passed.

    The law covers impairments with fluctuating or recurring effects if these are still likely to recur beyond 12 months after the first occurrence. Examples of impairments with recurring effects could be rheumatoid arthritis, epilepsy, or clinical depression.

Special cases

Certain conditions are automatically deemed a disability as soon as they are thdiagnosed, ie (the first three since 5 December 2005):

    ? Multiple Sclerosis.

    ? HIV.

    ? Cancer.

    ? Workers registered with a local authority or certified by a consultant

    opthalmologist as blind or partially sighted.

    ? Severe disfigurement (provided it is long-term).

Excluded conditions

    Certain impairments are explicitly excluded, eg seasonal allergic rhinitis (eg hay fever), tattoos and ornamental body piercing, and various anti-social personality disorders, eg tendency to set fire, to physical or sexual abuse, to voyeurism or exhibitionism.

    Addictions to alcohol, nicotine or other substances are not covered unless the addiction was originally the result of medical treatment or medically prescribed drugs, eg valium or other tranquillisers and sleeping pills.

    A separate disability which is caused by an addiction, eg liver damage caused by alcoholism, is covered by the DDA.

    10

    Failing to recognise the worker’s disability

     It is a continual problem that many employers do not accept workers need

    reasonable adjustments and maybe do not even believe a worker has a disability,

    because he or she appears to be coping at work and home. But appearances

    can be very deceptive. The amount of effort which a worker puts into an

    everyday task may not be apparent to the employer. Due to such

    misunderstandings, employers may delay too long in obtaining necessary

    equipment and can wrongly accuse workers of making excuses for slow or

    inaccurate work.

    ?Experience shows that disabled persons often adjust their lives

    and circumstances to enable them to cope for themselves….

    Furthermore, disabled persons are likely, habitually, to „play down‟

    the effect that their disabilities have on their daily lives. If asked

    whether they are able to cope at home, the answer may well be

    „yes‟, even though, on analysis, many of the ordinary day-to-day

    tasks were done with great difficulty due to the person‟s impaired

    ability to carry them out.?

    Employment Appeal Tribunal: Goodwin v The Patent Office.

Past disabilities

The DDA also forbids discrimination against someone because he or she had a

    disability in the past eg, an employer may be reluctant to employ someone who

    has had depression or cancer in the past, for fear that it may recur.

Checklist key points on definition

    ? The meaning of disability is far wider than you may have realised.

    ? Do not assume that because a disability is invisible, it does not exist.

    ? Whether workers are covered by the DDA often depends on the severity

    of the effects of their impairment. Workers themselves are the best guide

    to this.

    ? Remember that many workers play down the effect of their disability.

    ? It is good practice not to argue about whether or not someone is covered

    by the DDA, but to consider reasonable adjustments in any event.

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