Even though the Disability Discrimination Act (DDA) has been in force for over a decade, employers, employees, lawyers and medics still grapple with this highly complex area of law, in order to address the needs of those who are disabled within the employment arena.
The DDA has its own definition of disability, which does not necessarily correspond to the common use of the word. Section 1 of the DDA states that someone will be afforded protection if they have "a physical or mental impairment that has a substantial adverse impact on their ability to carry out day-to-day activities and which is long-term".
In reality, the Employment Tribunals tasked with interpreting the definition, break it down into its component parts:
1. Is there a physical or mental impairment? Until recently, an employee would have to show that, if they had a mental impairment, it was clinically well-recognised. They no longer need to do so and either stress or depression can amount to a disability.
2. Does the impairment have an impact on the employee’s ability to carry out day-to-day activities? Note that it is not work activities which are under scrutiny but everyday tasks.
3. Is the impact substantial? In law this means if it is more than minor or trivial, then it will qualify.
4. Is it long-term? The Tribunals will assess a condition as coming within the protection of the DDA if it has lasted or is likely to last for more than 12 months or the rest of the employee’s life.
If someone is protected by the DDA, they have a right not to be treated less favourably on grounds of their disability. There is no defence available to an employer if direct discrimination is proven. Protected employees have a right not to suffer victimisation and there is a positive obligation on the employer to make reasonable adjustments to the working environment, so as to reduce the disadvantage to the disabled employee.
Sickness v disability
There are many conditions that come within the scope of the Act and employers can be concerned about how to manage an employee who is unable to fulfil his or her contractual obligations. However, dismissal on grounds of capability is still a potentially fair reason for dismissal and it is possible to dismiss someone who is protected by the DDA. That is not to say that employers are not able to take action if their employees are sick. The Equal Treatment Directive, from which the DDA flows, does draw the distinction between sickness and disability and someone will not be protected unless the sickness results in a long-term or permanent functional limitation, such as amounts to a disability.
Until recently, there were no conditions which automatically afforded an individual protection under the DDA. This position has changed. Multiple sclerosis, cancer, HIV, blindness or partial sightedness and severe disfigurements are all deemed as protected under the DDA. Excluded conditions are as follows: addictions to any substance (including alcohol); the tendency to steal; the tendency to physical or sexual abuse of other persons; hayfever; tattoos.
Avoid assumptions about any disability or condition, as these may lead to inadvertent pitfalls. For example, an addiction to alcohol may, on the face of it, be excluded from the protection of the DDA, but what if the alcohol use/abuse is a symptom of depression or a cause of it? What if alcohol dependency/abuse has caused cirrhosis of the liver? Advice is needed, if alcohol is an issue and an independent medical opinion should be sought.
The best advice for employers is to ensure that all their policies are designed to recognise disability issues. People with disabilities are protected when they apply for jobs, not just when they become employees, so employers need to have a comprehensive Equal Opportunities Policy. Advertisements should be free from discriminatory criteria and the application form should ask appropriate questions about health. Diversity monitoring forms should be used to capture information that is sensitive and it should be clear to applicants that this information will be kept confidential and not seen by anyone making a decision about who to recruit.
The importance of training - for managers especially but all staff - cannot be overstated. If your managers are not comfortable about return-to-work interviews, how to treat disability-related absence and familiar with assessing reasonable adjustments, then problems and tensions can occur.
It is advisable that employers reserve their right to request that an employee, who has been absent for some time, whether during one long period of absence or repeated shorter periods, attend an independent medical assessment. This will enable the employer to determine the extent of their legal obligations and help the employee clarify their needs. As long as the policy is applied consistently, it can only help both parties to agree a way forward and will ensure employers avoid less favourable treatment allegations from disabled employees.
There is a positive obligation on the employer to make adjustments once they are aware that a disabled person is at a substantial disadvantage. The government scheme Access to Work provides a workplace assessment and funding for any adjustments which need to be made on the condition that the employee self-refers. n
l The Darbys team advises more than 30 businesses throughout the bakery and food supply chain. Contact Rob Bryan on 01865 811767.
=== Top tips ===
1. Get it right from the start - make sure your advertising and recruitment policy is non-discriminatory.
2. Are you asking the right questions at the right time on application forms and in interviews?
3. Training for managers - is it current and comprehensive?
4. Have you reserved the right to require a medical assessment if necessary? Check the contract and handbook.
5. Don’t make assumptions about any medical condition - get specialist advice and consult the employee.
6. Do you have a robust sickness absence policy?
7. Be flexible - have you considered reasonable adjustments?
8. Remember Access to Work, a government-funded scheme that provides workplace assessments and substantial funding for any changes required.
9. Do carry out return-to-work interviews and be sensitive.
10. Be consistent as this will leave no opportunity for anyone to claim less favourable treatment.