Disability Discrimination

on May 26th, 2017 by - Comments Off on Disability Discrimination

Statue Disability Discrimination Act 1995 (RB 165)

Principle It’s equality of opportunity and not treatment whereas with Sex and

Race D it’s about equality of treatment, provisional records from abogados de accidentes Hollywood

Checklist – key steps to go through addressing whether DD has occurred under the

DDA

1. Eligibility? -employee must have a disability

Age irrelevant

no continuous service needed

at present only applies to employers who have more than 15

employees.

2. Does employee fit the definition of a disability?

Defn taken from Disability Discrimination Act 1995

 Def: ’Physical or mental impairment which has a substantial, long term and

adverse effect on his ability to carry out normal day to day activities.’

Physical impairments = MS, cancer, blindness and arthritis, deafness

Mental impairments = clinically recognised disorders– to be sure check the World

Health Organisation (WHO) International Classification of Diseases which will say

one way or the other

Exclusions = addictions to booze or drugs, hay fever, correctable sight problems,

pyromania, cleptomania

 Make sure it’s the normal activities affected. Only has to affect one of the day

to days activities, as listed on p167 RB, they include mobility, shopping,

cooking, walking, speech, ability to lift etc. Does NOT include working !!!

IGNORE drugs taken – the condition may not be a problem now but could do soon or

could get gradually worse

Vicary v BT Plc, ET stated that Mrs V’s impairments were not everyday activities ie

preparing veg, carry pans of water etc, and that she should learn to cope with her

disabilities. ET systematically went through her tasks and dismissed them.

Vicary has since been overruled because a tribunal must ignore lifestyle

adaptations such that they may, in fact, manage reasonably well and concentrate on

what the applicant cannot do or only do with difficulty rather than on things they

can do. Ie, e/ee has managed to do something doesn’t count even though they’ve

worked round the diability

A substantial effect is one which is more than minor or trivial, medical evidence will

usually play a vital role in DDA cases. Will be assessed by the ET on the facts.

2

Progressive conditions (eg cancer, MS HIV etc) do not have a substantial adverse

effect if the condition is likely to result in such an impairment. However they need to

have some effect, therefore once a person with a progressive condition experiences

symptoms which have any effect on his normal day to day activities, he will fall

within the definition of disability, so long as the effect of the impairment is likely to

become substantial in the future.

Severe disfigurement will be deemed to have substantial effect on a persons day to

day activities.

Long Term = The effect of an impairment is long term if it has lasted at least 12

months, the period for which it lasts is likely to be at least 12 months or it is likely to

last for the rest of the life of the person affected.

The tribunal in Goodwin emphasised that each of these conditions should be

addressed, but that at the same time the tribunal should consider the whole picture.

3. Is there an unlawful act?

ie, refusing to recruit, promote or dismissal due to disability (same as

sex/race)

4. Is it less favourable treatment for reason related to disability?

Need to compare them to other people to whom the disability does not apply

If so, is it justified?

Employer discriminates if he: (quote the 4 points below as one

sentence in the EXAM)

 Treats him less favourably;

 for a reason relating to his disability;

 than he treats others to whom that reason doesn’t apply.

 and he cannot show that the treatment in question is justified.

Eg – treatment of typist denied job because speed is too slow as result of arthritis in

her hands is compared to somebody who hasn’t got a disability ie the average typist.

Not very fair or comparable.

 Treats him less favourable………..

 For a reason related to his disability (eg slow typing, absence for doctors

appointments, inability to do job at workstation – all because of disability)

 Than others to whom the reason doesn’t apply………..

 Ie – detrimental treatment connected to disability is unlawful unless justified.

What is the test for justification? is it material and substantial (major part of the

job) to discriminate? Are employers justified in

needing fast typists?

5. Is there a duty to make reasonable adjustments?

If so, can employer justify not doing? To be outlawed in

October 2004

3

6. Could any less favourable treatment at 4 now be justified if the

adjustment at 5 had been made? See below

2 nd type of discrimination – failure to make adjustments (from 6 above)

Employer discriminates if he:

 Fails to comply with a duty to make reasonable adjustments imposed on him

in relation to the disabled person:

o Duty arises if employer’s working arrangements put the claimant at a

substantial disadvantage, and it is the employer’s duty to take such

steps as is reasonable to prevent the disadvantage.

o Unless justified because it’s material to the circumstances and

substantial.

 Finally:

 If you should have adjusted, review any earlier findings of less favourable

treatment – would it still be justified?

Are adjustments reasonable? Is it cost effective, practical to implement adjustments?

Cost shouldn’t be so much an issue as the employer pays the first £300 then the

g’ment pay anything up to 80% of the rest of the bill.

Practical Points: E/er not usually expected to take a hit on productivity to make

reasonable adjustments

Disability discrimination damages can be combined with UD damages as well. The

highest award in the UK has been £104,000

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