In on the Act: disability discrimination

first_imgIn on the Act: disability discriminationOn 20 Nov 2001 in Personnel Today The latest in a series of quick guides to major employment legislation,putting key information you your fingertips. This issue we look at disability discriminationThe hard facts The Disability Discrimination Act 1995 (DDA) makes it unlawful todiscriminate in almost all areas of employment against people who are disabled.This includes treating someone less favourably because of their disability by: – Not recruiting them – Offering them inferior terms – Not training them, or – Dismissing them It is also unlawful to fail to put into place “reasonableadjustments” to remove any substantial disadvantage they may sufferbecause of their disability (such as installing a ramp, buying specialsoftware, or reducing working hours). Employers can defend their position byshowing their less favourable treatment was “justified”, that is,there was a material and substantial reason for the treatment. A failure toshow justification can result in unlimited compensation for losses and injuryto feelings being awarded by an employment tribunal. The largest award to datehas been £102,717. Difficult issues for employers: – Is the employee disabled at all? – What reasonable adjustments must we put into place? – What is our justification for treating the employee less favourably? – Can we dismiss? Is the employee disabled? This is often a vexing issue. Although highly dependent upon medicalevidence, it is actually a legal question focusing on the effects of theemployee’s condition upon everyday activities, such as reading, walking orremembering. For help on this complex matter, see the Government’s guidance on thedefinition of disability: at www.disability.gov.uk/dda/dle/guidance.html Employers may find it useful to ask an occupational physician or aspecialist in the relevant field (such as a clinical psychiatrist) to givetheir opinion of what effects the employee may be likely to suffer. Contact theLaw Society’s directory of expert witnesses on 020-7393 7780 for help infinding a suitable medical expert. Alternatively, see www.expertwitness.co.ukand www.specialistinfo.com What reasonable adjustments? The extent of this duty often amazes employers. Just saying, “It won’twork” will most likely land them in a tribunal court. Speak to theemployee to find out his or her views. Ask a medical expert for advice on whatwould help the employee do the job without the disadvantage currently suffered.Be prepared to be flexible and think laterally, but remember the adjustmentneed only be reasonable and you can balance the employee’s needs with therequirements of the business. It may be possible to ask for financialassistance to help purchase equipment under the “Access to Work”programme. To contact a disability employment adviser or an access to workadviser, or for more information seewww.employmentservice.gov.uk/English/Employers/disability.asp What is our justification for the less favourable treatment? Provided you have honestly explored reasonable adjustments first, you may beable to justify failure to employ someone in a particular post. This could bebecause for health and safety, for operational or financial reasons. A claimthat “the staff/customers wouldn’t like it” is unlikely to be accepted.See the Government’s Code of Practice for further examples of justification anda detailed explanation of the Act, at www.disability.gov.uk When can we dismiss? Just because someone is disabled does not make it impossible to dismiss himor her, say, for long-term absence. Provided you bear in mind issues of unfairdismissal (you have a proper reason for dismissal and you follow a fairprocedure, for example) dismissal may be permissible. However, remember toconsider reasonable adjustments before dismissal – maybe the employee couldreturn to work in another post, or part-time, or with greater support. Also,make sure you are clear as to your justification for dismissal. A full copy ofthe DDA can be found at: www.legislation.hmso.gov.uk/acts/acts1995/Ukpga_19950050_en_1.htmA range of useful information on disability can be accessed via theDisability Rights Commission’s website: www.drc-gb.org Related posts:No related photos. Comments are closed. Previous Article Next Articlelast_img