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EMPLOYERS AND EMPLOYEES SHOULD TREAD CAREFULLY FOLLOWING CHANGES TO 2005 DISABILITY DISCRIMINATION ACT

Marsali Craig, a solicitor in both the litigation and family law units at Aberdeen based law firm, Paull & Williamsons, writes about the effects that the changes to the Disability Discrimination Act will have on employers and employees.

Diagnosis of a potentially serious or disabling condition can be a frightening and unsettling experience. There may be no way of predicting the path of a condition like cancer, HIV or multiple sclerosis. In fact, it may never be particularly disabling. There are many people with these conditions who never see themselves as substantially disabled but there is a real fear that if you are honest with your employer, or prospective employers, about your medical condition, you may suffer serious discrimination. Say “Multiple Sclerosis” to many people and they will see a wheelchair.

In general terms, the Disability Discrimination Act 1995 defines a disabled person as someone who has a physical or mental impairment that has a substantial and long term adverse effect on his or her ability to carry out normal day to day activities.

Obviously, this definition would not apply to a large number of people who have been diagnosed with Cancer, HIV or Multiple Sclerosis. A problem for these people may be that although they do not suffer any substantial disability, particularly in the early stages of diagnosis, neither they nor their employers know what the future might hold and they may be subject to disadvantage for this reason.

In the past, many employees might have been reluctant to be open with employers for fear of a negative response. This was a double-edged sword. For a disabled person to be fully protected by the Disability Discrimination Act, their employer must know or could reasonably be expected to have known of their disability.

But this month (December 2005) the Disability Discrimination Act 2005 amended the definition of “disability” so that people with HIV, Cancer and Multiple Sclerosis will be deemed to be covered by the Act effectively from the point of diagnosis, rather than from the point when the condition has some adverse effect on their ability to carry out normal day to day activities. This latest amendment to the Act should ensure that they do not suffer discrimination if they tell their employer of that diagnosis.

The Disability Discrimination Act seeks to ensure that “disabled” people enjoy equal rights of access to and in the provision of goods, facilities and services, in employment, and when buying or leasing premises.

In the provision of goods, facilities and services it is unlawful to discriminate against a disabled person by refusing to provide, or deliberately not providing, to them any service which is provided to members of the public. This might mean that businesses have to alter the layout of a building to provide access or change any practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service. If a provider of goods, facilities or services does not comply with this obligation, then they will have to show that it is not reasonable for them to make the necessary alteration, to premises or to facilities, for example, because it is too expensive.

In employment, a disabled person is similarly protected from discrimination. It is unlawful for an employer to unjustifiably discriminate against a disabled person when applying for employment, in the terms and conditions offered and in opportunities for promotion, a transfer, training or receiving any other benefit. So an employer is under a duty to make reasonable adjustments to premises or to working practices to accommodate a disabled employee. But again, the keyword is reasonable. A “ reasonable adjustment” is one which is reasonable, in all the circumstances of the case, for the employer to have to take in order to prevent placing a disabled employee at a substantial disadvantage. So employers need only take those steps which are reasonable to have to take - bearing in mind the extent to which taking the step would prevent the disadvantage, the extent to which it is practical for the employer to take this step, and taking account of financial considerations such as the cost of adjustments and the extent of the employers` financial and other resources.

It is not always easy to determine whether a particular measure is a “reasonable adjustment” or not. The Disability Discrimination Act is still relatively new legislation. It is also regarded as one of the most complex pieces of employment law to have been introduced in recent years.

Bearing this in mind, there could be many situations where both the employee and the employer may wish to seek legal advice on their rights and obligations.