DDA 1995 – Discrimination

All of the normal areas of discrimination are covered i.e. recruitment, promotion, training, access to benefits. Arrangements include interview arrangements and will therefore cover testing, access to premises, application forms etc. There was some controversy about the use of medical examinations, however the Government noted “in general, employers should be free to use whatever recruitment procedures best meet their needs and to conduct medical examinations of employees where that seems appropriate� (Parliamentary Under-Secretary of State, Hansard, HC Standing Committee E, Col.151). However it is clear that asking only disabled persons to have a medical examination might constitute less favourable treatment.

What is covered?

There are five different forms of disability discrimination. A number of amendments have been made since the original act and although similar to other forms of discrimination, there are areas which are unique to disability. A further review is taking place in 2006 prior to the introduction of the Equality Act in 2007.

The five forms of discrimination are:

• Direct discrimination – it is unlawful to treat a worker less favourably on grounds of his disability (similar to other laws) – cannot be justified
• Disability-related discrimination – it is unlawful to treat a worker less favourably for a reason related to his disability (unique to disability) – can be justified
• Failure to make reasonable adjustments (unique to disability) – since October 2004 cannot be justified
• Harassment (similar to other laws)
• Victimisation (similar to other laws)

As with other forms of discrimination it covers a wider category than employees including contract workers, apprentices and self-employed people who contract personally to do any work. There are exclusions, the most significant being in relation to the exclusion of employers with fewer than 20 employees although the Government is currently reviewing this threshold with a view to lowering it.

Direct discrimination

The above should be distinguished from s.3(5) a new section included since October 2004 which states

“a person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.�

This is what would be called direct discrimination and cannot be justified.

This does not mean that the disabled person cannot be disciplined or dismissed. In many cases the treatment will not be for a “reason which relates to the disabled person’s disability� as was the case in Greenwood v United Tiles Ltd where the individual who was a diabetic had time off for hospital appointments but made the time up. He was dismissed for poor work performance, carelessness, objecting to working late, had a bad attitude to management, was sometimes late back from lunch, distracted colleagues and made personal phone calls without authority. He was reprimanded to no avail. He also took time off work without giving advance notice and without making up the time. The tribunal accepted that he was dismissed for reasons unconnected with his disability.

Disability – related discrimination

New section 3A provides that an employer discriminates against a disabled person if “for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply and he cannot show that the treatment in question is justified.� This is known as disability related discrimination.

Reasonable adjustments

3(2) goes on to state that he discriminates if “he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person�. Since October 2004 there is no longer a justification defence for not making a reasonable adjustment. The test is whether it was reasonable to make that adjustment.

Comparator

Until the new definition of direct discrimination was introduced in October 2004, only disability-related discrimination could be used. In such cases, a difficulty arises with the definition of “others to whom that reason does not or would not apply�. In other words with whom is the disabled person being compared? Caselaw demonstrates the difficulties. For instance if a disabled person has significant absences from work, should he be compared with a non-disabled person who has significant absences from work? If both are dismissed for absence does that make it fair. Certain tribunals have indeed held this to be the correct test, however this would invariably work against the disabled person. In Clark v Novacold Ltd the individual was dismissed because of his absences due to a back injury. The employer demonstrated that a non-disabled person would also have been dismissed for such absences. This has subsequently been proved to be the wrong test for disability-related discrimination although this may be a relevant comparator for direct discrimination

The tribunal should look at why the disabled person was absent, if this was due to disability then dismissal was because of disability (not unlike the test for pregnancy). It may, however, be justifiedn. (Similar confusion on the comparator arose in Farnham v Leopold, Reilly v EXI and Ward v Daron Motors)

The comparison used by the Government during the passage of the bill was with the person who could not type because of arthritis. To say that the person was rejected because they could not type as would anyone who could not type, would mean the employer could avoid the obligation to make reasonable adjustments. The correct approach is to say – why could the person not type, because of disability, rejection then becomes because of disability which can only be justified after considering the duty to make reasonable adjustment.

The tribunal however, got it right in Cox v The Post Office where the tribunal said the reason for dismissal was absence, absence was caused by disability and someone who did not have the absences would not have been dismissed. The disabled person had therefore suffered “less favourable treatmentâ€? – the tribunal then had to consider whether it was justified for a “substantial and material reasonâ€?. It was not – Mr Cox had been absent on average 8 and a half days per annum and this was not substantial. The test is really was Mr Cox dismissed for absence (ie disability) and would a person without the absence have been dismissed.

It should be noted that cases such as Cox may well indicate a need to put up with a higher level of absence, poor performance etc than would be acceptable for a non-disabled person. One case has touched on this in relation to redundancy selection ie Hardy v Gower Furniture Ltd where a disabled employee scored lowest in a redundancy selection exercise. The tribunal found in his favour on the grounds that there was no genuine redundancy but it has been suggested that if a person scores lowest because of his disability that this may constitute less favourable treatment subject to justification. In order to be material and substantial it may be necessary to weight the score of the disabled person – what degree of weaker performance would be enough to hold there was less favourable treatment?

In Kirker v British Sugar plc the employee was awarded compensation of £103,000. He was registered disabled due to extremely poor vision. He was selected for redundancy, scoring 40.5 out of a possible 100. The lowest score of those who stayed was 46. The tribunal held that the scoring was totally subjective with views of his competency and performance being 0/10 even though there had never been any criticism of his performance. He scored 0/5 for potential and his disability was regarded as a health and safety problem. Points were deducted for absences due to disability. An objective assessment would have taken him above the lowest score of 46. The major part of the compensation was for future loss ie the likelihood that with his disability he would not easily find work for the remainder of his working life i.e. 15 years reduced by 20% to reflect the likelihood that his eyesight would have deteriorated in that time.

In Morse v Wiltshire County Council there was held to be fair selection for redundancy as the disabled employee could not drive which was a necessary condition of the job.

The choice of comparator will be an issue with the revised definition of direct discrimination where it will be a non-disabled person in the same circumstances.

Note this is a confusing area and many cases are won or lost on choosing the relevant comparator.

Therefore for direct discrimination it is disabled compared to non-disabled in the “same� circumstances just like other forms of discrimination. For disability-related discrimination it is a disabled person compared to a non-disabled person who is not absent, poor performing etc. In other words for the latter the concentration is on the disability ie poor attendance/performance was caused by disability and so the treated is related to the disability. However here the treatment can be justified but only after looking at reasonable adjustments.

Knowledge

Requiring justification to be for a reason material and substantial puts the employer on notice to do more for a disabled person ie to put up with more and therefore to adjust for example acceptable levels of absence or scoring for promotion or redundancy selection.

Knowledge is also a factor in less favourable treatment. At what stage is knowledge an issue? For instance if an individual gives no indication of a disability is this a defence? Some tribunals have held that if the employer did not know and could not be expected to know that the person is disabled then less favourable treatment could not be because of the disability. This was an issue in two cases – O’Neill v Symm and in Fozard v Greater Manchester Police. In the former case the individual suffered from ME and during a very short period of employment had severe pain, difficulty in walking and memory problems, had to sleep a lot and had time off to go to the doctor. The company claimed they did not know she was disabled. The applicant claimed that the employer should have been put on notice because of her frequent hospital visits and obvious physical symptoms. The tribunal held that she was disabled under the act but that the company did not and could not know of her disability. The tribunal may again have applied the wrong test of knowledge. The question should be – was she dismissed because of her disability and if so could the employer justify by a reason “material to the circumstances of the particular case and substantial.â€? O’Neill has subsequently been upheld on appeal so that knowledge is relevant.

Surely the argument should have been that she was treated less favourably because of her poor attendance and performance by being dismissed. Her poor attendance and performance were related to her disability. The tribunal held the less favourable treatment was not due to her disability as the employer did not know she was disabled. The issue of knowledge should therefore have been relevant at the justification stage. Is lack of knowledge a material and substantial reason for treating it less favourably. It is clearly material but is it substantial? If the employer could not have known then it may be but if the employer should have known ie by following the normal rules for managing absence and performance ie consultation, medical information, warning etc then surely that cannot be justified. Lack of knowledge may be a defence to not making a reasonable adjustment but should not be to the discrimination itself.

In the Fozard case the tribunal reached the opposite conclusion in relation to knowledge. The applicant’s condition caused her learning difficulties. She disclosed that she had a disability but that she had no special needs. She was rejected due to inaccuracies on her application form (accuracy was a requirement of the job). The selectors were not aware of her disability. The tribunal held that this was irrelevant provided the applicant could show as a matter of fact that the reason for rejection was disability. She was therefore discriminated against subject to justification – the lack of accuracy was held to be a justification. However the tribunal held that knowledge was important in relation to the duty to make reasonable adjustments. They did not know and could not have known that she required any adjustment because of a question on the application form asking about special needs. The applicant did not indicate there were any.

In Coles v Somerset County Council the applicant applied for a job with the Council who guaranteed disabled applicants an interview unless they were clearly unsuitable. Cole’s application indicated he was disabled but said nothing about adjustments. He was not given an interview and the tribunal held that this was due to lack of suitable experience. They were not prepared to infer discrimination purely from the fact he had a disability and was no short-listed.

In Kenny v Hampshire Constabulary the individual had cerebral palsy which meant he needed assistance in dressing, going to the toilet etc. He was made a job offer subject to the employer’s ability to find an assistant to take him to the toilet. When this was not possible the offer was withdrawn. This was held to be justified on the grounds that no adjustment was possible.

In Toffel v London Underground Ltd the individual suffered from depression and was taking Prozac. The occupational health physician indicated that this would make driving dangerous. It was not possible to make an adjustment and even though the individual came off the treatment it would take six months for its effects to leave his system.

Justification

3(3) “for the purposes of 3A(1b) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.�

Justification only applies to disability-related discrimination and not to direct discrimination. However it cannot be justified if the employer has failed to comply with any duty of reasonable adjustment. This definition accepts that unlike sex or race, disability may have an impact on the person’s ability to do the job.

In Samuels v Wesleyan Insurance Society the employee had high levels of absence due to MS. The employers sought medical advice regarding the nature of his condition and were told he would return to work within a few months. When asking what he could do they were advised to “try and see�. He was dismissed because the company thought there was no prospect of his attendance improving and that they would incur substantial costs in bringing him “up to speed.� In addition they were not prepared to try and see. The tribunal held this was unfair dismissal and discrimination in the face of medical evidence and not justified.

In O’Dea v Bonart Ltd the employee was registered disabled. He had an increasing level of sickness absence partly because off disability. Sick pay was stated to be discretionary. When he was due to go into hospital for an operation necessitating a considerable time off, the company wrote to him to indicate that the guidelines on how to exercise such discretion would not apply to him. He claimed constructive dismissal and disability discrimination. The tribunal held there was no breach of contract therefore no constructive dismissal. Although the tribunal appear to have held that the rules on sick pay could constitute less favourable treatment, that it was justified. It does not, however, make clear what the “material and substantial reason� was which justified such treatment although it is implied that it was because he had already had a substantial amount of sick pay.

In Sandy v Hampshire Constabulary the applicant was registered disabled as a result of a back problem and partial loss of hearing. Over a period of over a year his sickness level was 5 days absence. He applied to a permanent position and was offered the job subject to medical. He completed a medical questionnaire and supplied a medical report from his GP saying he did not anticipate any significant problems in his work. However the medical officer rejected him because of his back condition which he believed would give rise to an unacceptably high level of absence. Although this was later reviewed, by that time the position had been filled. This was held to be discrimination on the grounds of disability and not justified in the light of the employer’s knowledge at the time. The medical view was highly speculative as it was made without reference to actual absence or the GP’s report.

By contrast in Smith v Carpets International UK plc the employee was a warehouse operator who had epileptic seizures and the company doctor concluded that it was dangerous for him to work because of the amount of heavy machinery and fork-lift activity. A risk assessment concluded that no adjustments could be made to the work. The following year his consultant reported he was fit to return but the company doctor disagreed arguing that the consultant did not know the specific dangers of the workplace. The employee was offered alternative work but refused and was eventually dismissed. The employer accepted that this was less favourable treatment because of his disability but that this was justified. The tribunal held that the reasons were material and substantial and that reasonable investigations had been carried out regarding adjustment. It was not reasonable to totally adjust the way the work was carried out.

Duty to make adjustments

Disabilty-related discriminatory treatment can be justified unlike most other forms of discrimination (age will be a further exemption). However it can only be justified subject to 5(3) above and provided the employer has first considered his section 6 obligation to make adjustments.

The legislation provides that

“where any provision, criteria or practice applied by or on behalf of an employer or any physical feature of premises occupied by the employer place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all of the circumstances of the case, for him to have to take in order to prevent the arrangements or features having that effect.� The section goes on to list a number of areas where it might be reasonable to consider an adjustment. The wording in bold was altered in 2004.

This area is crucial to disability discrimination. If disabled applicants can be rejected because of their disability without any requirement to adjust, then many will not find employment. The obligation to make adjustments is an attempt to try and level the playing field. The duty arises where an arrangement or any physical feature of premises places the disabled person at a “substantial disadvantage� ie in comparison with people who are not disabled. Substantial is intended to exclude minor and trivial disadvantage. The duty does not arise in the abstract but only when there is knowledge of disability (see above). This was the issue in O’Neill where the employer successfully (but wrongly?) argued that he did not know that the person dismissed was disabled by ME. There is no overall obligation to make adjustments “just in case� someone disabled comes along. In general discrimination law lack of knowledge is no defence to an employer’s actions. Discrimination has occurred and the employer is liable unless in most cases he has taken certain steps, eg equal opportunities policy, training etc. For disability the duty to make adjustments, however, only arises where the employer knows or ought to know that the person is disabled.

In determining whether adjustments are reasonable a number of factors are relevant ie the extent to which taking the step would prevent the effect in question, the extent to which it is practicable for the employer to take the step, the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities, the extent of the employer’s financial and other resources, the availability to the employer of financial or other assistance with respect to taking the step (section 6(4).

This involves looking at whether there would be much benefit to the employee, considering the time it would take, the cost in relation to the size of the employer and to whether finances were available from another source. This was the case in Tarling v Wisdom Toothbrushes Ltd t/a Wisdom where the employee was dismissed for poor performance which was caused by her disability (a club foot) which made it difficult for her to stand for long periods. Expert advice demonstrated that this might be relieved by a special chair costing £1,000 but with £800 being paid by the Employment Service. The company were guilty of discrimination by failing to consider the chair.

There is no financial cap on costs despite pressure on the Government to introduce one. Their feeling was that the legislation was adequate as it stands but noted that “should the need arise, Ministers would be prepared to consider setting a financial cap� (Minister of State, Hansard, HL Vol.564, cols.1761,1768). The Compliance Cost Assessment for the Act assumes an average cost of £200 per disabled employee for the 10 per cent of cases where an adjustment is necessary. Where the cost is much higher this will be determined by using the general law of reasonableness.

A failure to comply with the duty of reasonable adjustments is itself an act of discrimination which means it can only be justified if the reason for the failure is both material to the circumstances of the particular case and substantial. From October 2004 if the adjustment is reasonable there is no defence of justification.

From the caselaw to date, it is clear that reasonable adjustments are an area which perplex employers. Just how much change do they have to accept and how do they find out? This was considered in Holmes v Whittingham and Porter where the tribunal held that the employer failed to justify the dismissal of a disabled person under the Act because it relied on a medical opinion from a GP who acted as the company doctor rather than seeking specialist advice from an occupational health practitioner or an expert in epilepsy. The tribunal held that the employer should have sought advice on whether adjustments could be made to working conditions and considered whether the individual should have been given more time to bring the epilepsy under control. However his claim for unfair dismissal failed as dismissal on the basis of the GP’s decision was within the band of reasonable responses. This case demonstrates the different tests for discrimination and unfair dismissal.

In Wood v Darron Motors Ltd the employee was a motor mechanic. He had been involved in a motor accident and lost part of his leg. He returned to work at reduced capacity, the employer adjusting the job, hours and workload. His absence increased and after a lengthy period of absence, medical reports and discussion he was dismissed. Once again the tribunal used the wrong comparator test by comparing him with other employees on long term sickness. However it held that the employer had complied with a duty of reasonable adjustment but that this might not be justified long term and may have been financially impracticable.

In Matty v Tesco Stores Ltd discrimination was justified on the grounds that there was no reasonably practicable adjustment. The applicant applied for a job as a fitter at Tesco’s distribution centre. The job involved working alone on an irregular shift rota, climbing ladders up to 40 feet and having to spend several hours a week working in an environment of -25 degrees centigrade. In the light of advice from the occupational health adviser that a diabetic would be at risk and following consideration of reasonable adjustments, the company rejected the individual. The tribunal found that no adjustment was reasonably practicable. The work could not be made lower and the freezer could not be operated at a higher temperature. Protective clothing was the best available but was insufficient. In an emergency it might be necessary to spend long hours in the freezer and the risk of sustaining injury could not be avoided and the job could not be changed.

In Williams v Channel 5 Engineering Services Ltd the employers were liable for failing to make adjustments to a training course which disadvantaged a deaf applicant so that he lost the job. By the time adjustments were made and he received the requisite training there was no work. The employer should have anticipated the need for special training and equipment.

In Mansoor v Secretary of State for Education & Employment the employee had colitis which affected his timekeeping for which he was eventually dismissed. The tribunal held that the employer should have adjusted his hours to take account of his problem and he was willing to take a pay cut. They also held that the appropriate comparator was someone who attended work not someone else with bad timekeeping. This is consistent with the cases above.

In Champeau v Bournemouth Orchestra a partially-sighted musician was unable to drive. Other employees were unwilling to share a car with her as she could not share in driving. Dismissal was held to be unfair as a reasonable adjustment would have been to hire a helper with Arts Council funding. However in Ridley v Severn NHS Trust the employee suffered a leg injury which prevented her from driving which was an essential part of her job. There was no reasonable adjustment nor any other job.

However all of this may have changed in the light of the Archibald judgement. The Court of Session in December 2003 concluded that the obligation of reasonable adjustment applied only to the particular employment the individual was employed to do. It did not extend to finding alternative work of a different type. This case was appealed to the House of Lords. Their Lordships decided that it was a reasonable adjustment to transfer the individual to an existing vacancy but they went further by holding that the individual did not have to go through a competitive interview process ie she had first right to the job provided she was able to do it.

The individual was a road sweeper who became wheelchair bound and unable to do her normal job. There was no question but that she was disabled and there was no reasonable adjustment which could be made to her normal job. She applied for clerical jobs but on competitive interview was not successful. There was no discrimination in the interviews themselves. There were simply better candidates. She claimed that a reasonable adjustment was to give her a vacant job provided she could do the job and not subject her to competitive interviews. The court held the duty to adjust was to the person’s normal job and did not include providing a separate job. They also held that if there was an obligation to transfer to an existing job this would mean an applicant unable to do the job applied for could nonetheless expect to be transferred to a different job. In relation to the job applied for ie clerical there she was competing equally with non-disabled people but disability was not the issue it was lack of skills. Given the restriction this case poses, it is being appealed to the House of Lords.

Conclusion

There is no doubt that much of the confusion over interpretation of key terms will be eased as the higher courts hear more arguments.

t may well be the case that most long term sick individuals will fulfil the definition of disability but management of this situation for unfair dismissal would involve considering adjustments to hours, duties etc so the DDA should not make a major difference. Where employers might have difficulty is with the notion that more adjustment may have to be made for instance to performance or attendance expectations for a disabled person and that in redundancy selection the disability has to be put to one side when assessing the individual. If it becomes part of the assessment criteria there will undoubtedly be less favourable treatment although there will be occasions when this is justified.

This is a particular problem with mental impairments such as depression. It may be that there is no adjustment which can be made at work but the individual may be unable to attend and remain absence. The resources of the employer are likely to be an issue in the test of reasonable adjustment eg more sick pay or longer time off.

If cases such as Kirker are upheld then compensation may be high. In that case the tribunal assumed he would have difficulty finding alternative work for the rest of his working life – 15 years and made an award accordingly. If disabled people continue to experience difficulty in finding work then such awards may well become commonplace.