The Disability Discrimination Act 1995

The Disability Discrimination Act 1995 has been in force for some years now. The caselaw demonstrates just how difficult this legislation can be and it is clear in many of the cases that expert evidence is required. A tribunal no more than an employer can assume to know about the particular disability or the sorts of adjustments which would provide a defence under the act.  It is also clear that tribunals are somewhat unimaginative in terms of concepts like “reasonable adjustment�. This may in part be due to the relatively narrow examples in the Code of Practice whereas the legislation itself could be read to cover a far wider range of changes.

When this legislation was being set up, much debate centred around the concept of disability. Many disability groups felt that the emphasis was too much on “health� ie a medical as opposed to social perspective. The latter regards society as putting pressure on disabled people just as much as the disability itself. Arguments were made that disabled people were not ill people.   However in at least one case Howden v Capital Copiers (Edinburgh) Ltd heard in Edinburgh in April 1997 the applicant appeared to be ill as opposed to what is normally regarded as disabled leading many employers to fear that long term sick employees may all in future be regarded as disabled.  In fact many lawyers are warning them to take just such a view and perhaps with good reason.  In any case, good practice in dismissing for long term sickness should involve just the sort of search for reasonable adjustment which the DDA requires and should not therefore be regarded as an onerous burden.

Problem areas

A number of problem areas are evident from caselaw. Amongst these are where knowledge fits into disability, who the relevant comparator would be – this is also linked to less favourable treatment and what would constitute a reasonable adjustment. The definition of disability itself is also contentious with problems over long term, progressive and day-to-day activities.

Definitions

It may be well to remind ourselves of some of the definitions which have caused concern. It is also worth remembering that from October 2004 some of these definitions have changed. In particular the introduction of a definition of direct discrimination which cannot be justified (ie the disability itself is the reason for the discrimination eg people with asthma cannot do heavy physical work).

The Act protects workers who have a disability as defined by the Act. It is a wider definition than that used for other forms of incapacity such as incapacity benefit, car stickers etc. According to the Department for Work and Pensions, 600,000 workers become sick or disabled every three months, using this definition.

The Act covers a wide range of impairments such as:

• Physical and visible impairments
• Sensory impairment
• Invisible conditions, eg epilepsy or diabetes
• Mental illness, eg depression or anxiety disorder
• Other mental impairment eg learning difficulties or dyslexia
• Physical illness, whether temporary, permanent or fluctuating
• Temporary injury, eg caused by an accident at or outside of work
• Temporary incapacity, eg immediately before, during and after an operation (A Employer’s Guide to Reasonable Adjustments under the Disability Act – Central London Law Centre)

It is necessary to remember that there is no list of disabilities. It will depend on the individual and how the “impairment� affects them personally. From an employment perspective there is no difference between disability, sickness or illness (although arguments are made that disability is not an illness).

Disability

Disability is defined as

S1(1) “Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities�

Schedule 1 includes past disabilities, progressive illnesses and certain exclusions. Problems have arisen in relation to the meaning of normal day-to-day activities ie whether this is outside or inside work.

One could assume that disability could impact in three ways e.g.

• the person who is disabled under the Act but there is no impact at work;
• where there is an impact at work but is not regarded as a disability under the Act ie because there is no substantial adverse effect on day-to-day activities (including progressive conditions ie note before December 2005 asymptomatic HIV and some MS were not regarded as disabilities. Both these conditions are now covered from diagnosis regardless of their impact on normal day to day activities) or the person who is perceived to be but is not in fact disabled;
• the person who is disabled under the Act and there is an impact at work.

An exampled of (b) would be Jones v Cadsart where an individual with a knee injury could not carry out his employment functions adequately due to the injury but the tribunal did not regard him as disabled under the Act and in Hopkins v ERF Manchester an individual with rheumatoid arthritis which made him slow, necessitating help was not regarded as disabled. In both of these cases their “inability� affected their work but they were not regarded as disabled under the act as there was no present substantial adverse impact on day to day activities.

Such activities appear to be related to activities outside work ie “normal – day-to-dayâ€? – this is confirmed by the guidance and Code of Practice. However in more recent caselaw such as Ross v Precision Industrial Services and DuPont (UK) Ltd 19 May 2005, CA, EOR the court confirms that a tribunal is entitled to examine a claimant’s activities at work in determining whether they have been affected in the requisite way because they may replicate circumstances that are normally encountered outside of the workplace. However, impairments which only affect work do not count. Only one such effect is necessary to qualify. The list includes:

Day to day activities

Schedule 1 para 4(1) “if it affects one of the following – 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, or perception of the risk of physical danger.”

Of course what might be normal for one person is not necessarily so for another. The Act is intended to cover the average person not the specially gifted or more than average able person.

Adverse effect

The Guidance helps to clarify situations where there may be doubt as to whether the effects of impairments on normal day-to-day activities are substantial. It recognises that no particular form of work is normal for most people. It recognises that some impairments will affect a range of day-to-day activities, some only one and that is sufficient. Some impairments will indirectly affect the individual. In addition there is a need to consider pain or fatigue – the person may have the capacity to do something but suffer pain in doing so or the impairment may make the activity more than usually fatiguing. It is enough if the activity causes pain or fatigue either by doing it once or over a period of time. Equally the individual may have been told to refrain from doing something or told to do it in a certain way.

The Guidance says that “substantial� adverse effect simply means more than minor or trivial.

Physical impairments are not defined and from December 2005 under the Disability Discrimination Act neither are mental impairments when previously in Schedule 1 mental impairments were required to be “clinically well-recognised by a body of medical opinion�. The then Government resisted any attempt to define sensory impairments as a separate category holding that the definitions “physical and mental are intended to be seen in their widest sense and should comprehensively cover all forms of impairment� (Minister for Social Security and Disabled People, Hansard H.C., Standing Committee E col 71).

In Howden v Capital Copiers (Edinburgh) Ltd the employee had considerable absences due to sharp stomach pains. He was admitted to hospital on various occasions and had been operated on twice. No satisfactory cause had been found for the pain although it was accepted to be genuine. In addition he had been investigated by the Department of Psychological medicine. Pain control was difficult. In the tribunal judgement they note that it was self-evident that the condition “had an adverse effect on his ability to carry out his normal duties�. Without effective pain control he was unable to walk, lost the use of his hands, had blurred speech, loss of concentration and manual dexterity.  In 1996 he had 35 and a half days’ absence but was not warned about the possibility of dismissal due to absence. An employee who absented himself frivolously would have been warned of such a possibility. Eventually he was dismissed but the medical situation was not discussed nor was any possibility of changing jobs or any other adjustments.

The applicant argued that his physical condition was an impairment under the act which had a substantial adverse impact and had lasted for over two years. He had therefore been treated less favourably than others who did not have the applicant’s condition in circumstances where someone acting frivolously would have been warned. The employers had not made any reasonable adjustments as they insisted on his normal hours of work when they should have considered allocating some of his duties elsewhere or altered his working hours. In addition there had been no procedure, no warning, no consultation, no medical information.

The argument for the employer was that he was not disabled. This was not accepted by the tribunal. He was therefore unfairly dismissed and discriminated against on the grounds of disability.

The Guidance on the Act expands on the meaning of disability and considers each element of disability in turn, often with the aid of a practical example. The Guidance states that in most cases there will be no dispute whether a person has a physical or mental impairment. Arguments are likely to concern whether the effects of the impairment are sufficient to fall within the definition of disability. For instance mental illnesses are very uncertain.

The factors to be taken into account when determining whether a condition has a substantial adverse effect on the performance of day-to-day activities are expanded on in the Guidance. Important factors are the time it takes to carry out an activity and the way the activity is carried out, the cumulative effects of an impairment, whether a person should modify his or her behaviour to prevent or reduce the effects of the impairment, the effects of the environment on the individual and the effects of medical treatment.

This appears to be a significant issue. For instance in Foord v J A Johnston & Sons the employee could not work overtime hours because of pain in her feet and was dismissed. She had fallen arches. The tribunal held that this was not a disability under the act as the adverse effects were not substantial nor affected normal day-to-day activities. It was only when she worked long hours that there was a problem. In addition the employer had no knowledge of her problem. The tribunal appear to have ignored guidance to take account of extra pain and fatigue caused by a disability.

In Kilburn v Patent Office the individual was a paranoid schizophrenic and was dismissed for staring at staff and upsetting them. He claimed that his mental illness caused him to have hallucinations and that he could not concentrate. However the tribunal decided that since he could look after himself, could work, travel etc he did not have an impairment which had a substantial impact on day-to-day activities. They appear to have taken no account of the legislation requiring account to be taken of a disability being controlled e.g. by drug treatment. Clearly without such treatment his day-to-day activities would be significantly curtailed.

The latter situation is known as deduced effect and has caused some controversy as the individual taking medication or having some artificial aid may in fact suffer no substantial adverse impact on day-to-day activities but would without the help. In Carden v Pickerings Europe Ltd [2005] IRLR 720 the court had to consider whether an individual who had fractured his ankle and wore a plate and pins thereafter, could be regarded as disabled.  He had no problems from the fracture or from the pins.  The legislation specifies that an individual will be disabled if but for the fact that measures re being taken to treat or correct it. Measures are medical treatment, the use of a prosthesis or other aid.  The EAT held that his pins and plate constituted “other aid� and that but for their insertion he would otherwise have a disability.  These were continuing measures.  The case was remitted back to a tribunal to decide this issue.

Long term

The Act is not designed to deal with short-term sickness. However it is the effect of an impairment which counts rather than the severity. Sometimes the effect will not be severe but will substantially affect the individual. In addition the cumulative impact of small disabilities will counts.

There have also been problems with the definitions of long term defined in Schedule 1 para 2(1)

(a) it has lasted at least 12 months;
(b) the period for which it lasts is likely to be at least 12 months; or
(c) it is likely to last for the rest of the life of the person affected (ie this might
be less than 12 months).

(2) Where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur (ie this could include epilepsy, multiple sclerosis or any condition where there are intermittent periods of good health).

The issue of likely to recur is also problematic- see Swift v Chief Constable of Wiltshire Constabulary [2004] IRLR 540 where the court looked at recurring conditions. Where a condition ceases to have a substantial adverse effect it will still count if it is likely to recur. In the above case the EAT provides guidance on the meaning of the above.

The question was not whether the impairment was likely to recur, but whether the substantial adverse effect on normal day-to-day activities was likely to recur.

In the above case the court held that although the condition might recur, it ceased to have a substantial adverse effect on her abilities ie memory or ability to concentrate.

The Guidance makes some general comments on how to determine whether an impairment will have a long-term effect. “ It is not necessary for the effect to be the same throughout the relevant period. It may change ….. the main adverse effect might even disappear – or it might disappear temporarily – while one or other effects on ability to carry out normal day-to-day activities continue or develop.â€? On recurring effects the Act states that if the effects of an impairment ceases, “the substantial effect is treated as continuing if it is likely to recur that is, it is more likely than not that the effect will recur. For example a person with rheumatoid arthritis may experience effects …… for a few weeks and then have a period of remission. But, if the effects are likely to recur, they are to be treated as if they were continuing. If the effects are likely to recur beyond twelve months after the first occurrence, they are to be treated as long-term.â€?

In Clark v Novacold Ltd the individual was dismissed due to absences caused by a back condition. There was a question as to whether this was long term – the tribunal decided that the appropriate time for considering the likely duration of the disability was at the time of the act of alleged discrimination. This was the date on which the decision to dismiss the applicant was taken. In this case they decided that it was likely to last the requisite length. This should be contrasted with Rowley v Walkers Nonsuch Ltd where the employee was off work for six months and submitted a further sick note for three months. She was dismissed after 22 years’ service on the grounds that the employer could not wait any longer for her to return (the normal test for long term sickness dismissals). The tribunal noted that “the employers in late 1996 could not predict the future, but at that time we would not say that the condition of which we have heard (a back injury) came within that definition.â€? However no consideration appears to have been made as to whether it was likely to recur.

Past disability

A definition was included of past disability to cope with discrimination against individuals who had suffered, mainly mental illness in the past. The Minister introducing the amendment which included past disability noted “ it has become increasingly clear that people who have had a disability, although they may be no longer disabled as such, share with people who are currently disabled a need for protection against discrimination in relation to their disability�.

Therefore, linked to the above Section 2(1) and Schedule 2 deal with past disabilities. Schedule 2(2)â€? ……… to be read as references to a person who has had a disability.â€?

Schedule 2(5) refers back to the definition of long term and expands it by including 5(2) “where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect recurs�

To qualify as a past disability, the disability would at the time have had to comply with the definition of disability ie long term.

Note that cancer, MS and HIV are all covered from diagnosis so someone who “had� cancer but is now cured is still covered by the act.

Progressive

In the Hopkins case, the tribunal appeared to ignore the definition of progressive injuries ie Schedule 1 para 8(1)(a) “a person has a progressive condition (such as cancer, multiple sclerosis or muscular dystrophy or infection by the human immunodeficiency virus),(b) as a result of that condition, he has an impairment which has (or had) an effect on his ability to carry out normal day-to-day activities but (c) that effect is not (or was not) a substantial adverse effect, he shall be taken to have an impairment which has such a substantial adverse effect if the condition is likely to result in his having such an impairment.

The above definition does not appear to require that progressive conditions have a “substantialâ€? impact at the present time – some effect is sufficient. Surely that is the whole point – if the individual had a problem with day-to-day activities at present he would be disabled now and would not require a specific definition of progressive. Often a considerable period of time elapses between the diagnosis of a person as suffering from a progressive condition and the point in time when it has a substantial adverse effect on normal day-to-day activities – if it ever does. However individuals may be discriminated against just because of the condition. The protection does not however, arise when a condition even if diagnosed is latent. So if someone is diagnosed as having a specific condition he is not protected until there is some impact on day-to-day activities although these need not be substantial. The is likely to be controversial as medical science becomes more sophisticated and genetic testing can make early diagnosis of the likelihood of certain illnesses such as Huntingdon’s, Parkinson’s, Alzheimer’s etc. The Government specifically rejected genetic testing as too hypothetical at present and not a reliable indicator of illness. However one observer in the House of Lords (Baroness Jay, Hansard HL Vol 564, col.1713) noted that one of the most exciting medical discoveries was likely to lead to fear of discrimination. The Guidance on the act discusses how to determine at what point a progressive condition has a substantial adverse effect on a person’s ability to carry out normal day-to-day activities. It states that “treated as having an impairment which has a substantial adverse effect from the moment any impairment resulting from that condition first has some effect on ………For this rule to operate medical diagnosis of the condition is not by itself enough.â€? Controversy surrounds what constitutes some effect.

(see the more recent case of Mowat where an individual with multiple sclerosis was not deemed to be disabled under this test as his condition did not have some affect nor was expected to in the future – a further requirement of this test. This is now academic as the Disability Discrimination Act 2005 which is effective from December 2005 amended legislation on progressive conditions so that MS, cancer and being HIV positive will qualify as disabilities from diagnosis. The Government rejected proposals to exclude some cancers as unworkable.).