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By Barbara Phillips,2014-03-20 14:43
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Information

Understanding the Disability

    Discrimination Act (DDA):

    information for disabled students

You may photocopy this information booklet

     You may quote from this information booklet if you

    acknowledge the source

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     Every effort has been made to ensure accuracy. However, Skill

    cannot guarantee factual content

    Skill: National Bureau for Students with Disabilities Chief Executive: Barbara Waters

    Unit 3, Floor 3, Radisson Court, 219 Long Lane, London SE1 4PR Email: skill@skill.org.uk Website: www.skill.org.uk Tel: 020 7450 0620 Fax: 020 7450 0650

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    Understanding the Disability Discrimination Act: information for disabled students

Contents

    1. Introduction 2

    2. The Disability Discrimination Act:

    Part 1: Definition of disability 3

    Part 2: Employment 6

    Part 3: Discrimination in provision of goods, 14

     facilities, services and premises

    Part 4: Education 20

    Part 5: Public Transport 28

    Part 5b: Improvements to rented accommodation 31

    Part 7: Supplemental 33

    3. The Equality Bill 34

    4. Enforcing your rights 34

    5. Useful information and publications 38

    6. Useful contacts 41

1. Introduction

    The Disability Discrimination Act (DDA) ensures that as a disabled person you are not discriminated against because of your impairment or condition. It is divided into different parts, covering the duties that various bodies have towards disabled people. Many duties are particularly relevant for disabled students, including those of colleges and universities, employers, landlords and service providers.

    This booklet aims to give you detailed information about the legislation and its recent amendments. It does not give legal

    advice and it is not intended to be used instead of the Code of Practice for each of the relevant sections of the law, or the SEN and Disability Act 2001 and/or the disability Discrimination Act (1995 and 2005).

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    This guide is for students living or studying in England, Wales, Scotland or Northern Ireland. However, if you are from Northern Ireland, Part 4 of the DDA does not apply as education is instead covered by the Special Educational Needs and Disability Order (SENDO). For more information on SENDO, please contact the Equality Commission for Northern Ireland (see useful contacts section).

    2. The Disability Discrimination Act (DDA)

DDA Part 1: Definition of disability

    To be protected under the law, you must meet the legal definition of the term ‘disability’. Disability is defined under Part 1 of the Act as:

    ‘a physical or mental impairment which has a substantial

    and long-term adverse effect on your ability to carry out

    normal day-to-day activities’

    The definition is designed to be as broad as possible and there are a wide variety of conditions and impairments that will be covered, although each part of the definition must apply to you before you can be classed as disabled under the Act. The only exceptions to this are cancer, HIV and Multiple Sclerosis, which are covered from the point of diagnosis. This means that some people who had not previously considered themselves as disabled may be protected. Fitting the definition simply means that you will be protected under the law if someone unlawfully discriminates against you on the grounds of your impairment or health condition.

    To check if you are disabled under the terms of the Act ask yourself the following questions:

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Do I have a physical or mental impairment?

The term ‘physical or mental impairment’ can include:

    ; physical impairments, such as people with mobility difficulties

    ; sensory impairments, such as people with visual or hearing

    impairments

    ; learning difficulties, including people with specific learning

    difficulties such as dyslexia

    ; mental health conditions which have a long-term effect

    ; genetic conditions once the condition affects your ability to

    carry out normal day-to-day activities

    ; progressive conditions once the condition affects your ability

    to carry out normal day-to-day activities, apart from Multiple

    Sclerosis, cancer and HIV which are covered from the point

    of diagnosis

    ; conditions which are characterised by a number of

    cumulative effects such as pain or fatigue

    ; hidden impairments such as asthma or diabetes, when these

    have an effect on day-to-day activities

    ; a past history of disability (see page 5).

    Does my impairment have a substantial adverse effect?

What is a ‘substantial’ adverse effect?

    A substantial adverse effect is something that is more than minor or trivial and goes beyond the normal differences between people.

What if I have a severe disfigurement?

    If you have a severe disfigurement, then you are considered as disabled because the disfigurement is taken as having an adverse effect on your ability to carry out normal day-to-day activities. It is not necessary to prove that the disfigurement has this effect.

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Does my impairment have a long-term effect?

A long-term effect is one:

    ; which has lasted at least 12 months; or

    ; where the total period for which it lasts is likely to be at least

     12 months; or

    ; which is likely to last for the rest of your life.

    Some effects are not long-term and would therefore not be included, for example loss of mobility due to a broken limb which is likely to heal within 12 months, and the effects of temporary infections, from which you would be likely to recover within 12 months.

    What if the effects come and go over a period of time? If your impairment has previously had a substantial adverse effect on your normal day-to-day activities but the situation changes and the condition gets better temporarily, it is treated as continuing if it

    is likely to come back.

    A person has had rheumatoid arthritis, which has been substantial and adverse, but then they have a period of remission (it improves for a time). If the arthritis remains and the person is likely to have at least one recurrence 12 months or more after the first occurrence, this would then be a long-term effect.

What about people who have recovered?

    People who have had a physical or mental impairment that was within the definition are protected from discrimination even if they have since recovered. So, if you are discriminated against because you used to have an impairment, then you could still be protected under the law.

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    Does my impairment affect normal day-to-day activities?

    Normal day-to-day activities are things that most people have to do every day, whatever their job or occupation. The term does not include activities which are normal only for a particular person, such as playing a musical instrument, or performing a skilled or specialist task at work. However, someone who is affected in such a specialised way, but is also affected in normal day-to-day activities, would be covered by this part of the definition. There are broad categories of capacity which are listed in the Act. These are:

    ; mobility

    ; manual dexterity

    ; physical co-ordination

    ; continence

    ; ability to lift, carry or otherwise move everyday objects

    ; speech, hearing or eyesight

    ; memory or ability to concentrate, learn or understand

    ; perception of the risk of physical danger.

Additional reading:

    See Useful publications section at the end of this booklet.

DDA Part 2: Employment and occupation

    Part 2 of the DDA aims to stop discrimination against disabled people at work, applying for work or training for work.

Who has duties under Part 2 of the Act?

    This part of the Act applies to:

    ; employers, including work placement / work experience

    providers

    ; people or organisations who provide employment services,

    such as employment agencies and careers services

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    ; trade organisations, including trade unions, employers’

    associations and chartered professional institutes, eg the

    Royal College of Nursing (see page 12)

    ; qualification bodies, ie organisations that give qualifications

    or register people for a particular profession or trade, such

    as the Law Society, the General Medical Council, or

    CORGI (see page 12).

Who is protected by Part 2?

    Part 2 of the Act protects the following disabled people:

    ; all employees (apart from members of the Armed Forces),

    whether on full-time, part-time or temporary contracts

    ; former employees

    ; job applicants

    ; people doing work experience or work placements

    ; people who are self-employed who have a contract to carry

    out work personally for an employer

    ; people who work in certain occupations which are not defined

    as ‘employment’, such as police officers

    ; people who are applying to a trade organisation or

    qualification body, including those related to your studies.

    Part 2 also gives rights to people who have been victimised, including disabled and non-disabled people (see page 33).

What does Part 2 say?

    Part 2 of the DDA says that discrimination is unlawful in all

    aspects of employment and occupation, including:

    ; staff recruitment and selection, including advertising jobs

    ; retention of employees

    ; promotion

    ; training

    ; dismissal

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    Part 2 also covers work placements which are done as part of a vocational training programme. It is unlawful for work placement providers to discriminate in selecting candidates, the terms of the placement, and dismissal.

    There are four types of discrimination under Part 2:

(i) Direct discrimination

    Direct discrimination happens when an employer treats you less favourably simply because you are disabled.

    A deaf person applies for a job as a nursery assistant, and the employer assumes they will not be able to do the job because they will not be able to communicate with children. This is direct discrimination.

    How do you know if direct discrimination has taken place? The way of telling whether or not there has been direct discrimination is to make a comparison with another person (either real or hypothetical). You have been discriminated against if:

    ; you are being treated less favourably because of your

    impairment or condition; and

    ; you have been treated less favourably than someone who

    does not have your particular impairment (either a disabled

    person with a different impairment or a non-disabled person);

    and

    ; the relevant circumstances of the person you are comparing

    yourself with are similar to yours, which means only those

    circumstances which are relevant to your ability to do the job,

    such as typing speed, qualifications held, or work experience.

    Direct discrimination may occur even though the employer is unaware of your specific impairment or condition. For example, an employer could apply a policy or practice that discriminates

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    against a number of disabled people, without actually knowing about an individual’s circumstances.

Can direct discrimination ever be justified?

    Under the DDA, direct discrimination can never be justified.

    Treatment of a disabled person which amounts to direct discrimination is always unlawful.

(ii) Disability-related discrimination

    Disabled-related discrimination under Part 2 occurs where an employer treats you less favourably for a reason related to your

    impairment or condition.

    A disabled man is dismissed for taking six months’ sick leave as a result of a severe, long-term mental health condition. The employer’s policy, which has been applied equally to all staff (whether disabled or not) is to dismiss all employees who have taken this amount of sick leave. This is likely to be disability-related discrimination as the reason for his dismissal is related to his impairment.

    How do you know if disability-related discrimination has taken place?

    The way of telling whether or not there has been disability-related discrimination is to focus on the reason for the treatment. You

    have been discriminated against if:

    ; you are being treated less favourably for a reason relating to

    your impairment or condition; and

    ; the treatment is less favourable than the way in which the

    employer treats / would treat others to whom that reason

    does not apply (either a disabled or non-disabled person, real

    or hypothetical); and

    ; the employer cannot show that the treatment is justified.

    An employer does not necessarily need to know that you are disabled in order to be liable for disability-related discrimination.

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    For example, an employer could treat a disabled employee less favourably due to the effects of an impairment, without actually knowing that the person is disabled. In the example above, the employer should have taken steps to find out about the sick leave, to ensure it was not disability-related.

    Can disability-related discrimination ever be justified? This is the only form of discrimination which can be justified under Part 2, but only in limited circumstances. It can be justified where the reason for the treatment is both material to the circumstances

    of the particular case (there is a reasonably strong connection between the reason for the treatment and circumstances of the case) and substantial (the reason must carry real weight and be

    of substance). However, the employer must comply with the duty to make reasonable adjustments before attempting to justify less favourable treatment (see below).

(iii) Failure to make reasonable adjustments

    Employers have a duty to make reasonable adjustments to the workplace, working practices and to job descriptions when required. This duty arises where disabled people are placed at a substantial disadvantage compared to non-disabled people.

    Failing to make reasonable adjustments is a form of discrimination under Part 2 of the Act.

    An employee with ME needs to have rest periods during the day. This is refused, despite the employee working the full number of hours and completing the work that is required. This may amount to discrimination under the Act.

Reasonable adjustments might include:

    ; making adjustments to buildings to improve accessibility

    ; altering working hours for disabled employees

    ; providing or modifying equipment

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