By Annabel Mackay

On 1 October 2004 the Government introduced a raft of legislative changes that will keep employers busy over the coming months; although the new statutory disciplinary, dismissal and grievance procedures received a lot of press coverage, significant amendments were also made to the Disability Discrimination Act 1995 (“the Act”).

The small employer exemption has been removed and so all employers irrespective of size need to be mindful of their obligations under the regulations and should review existing practices and procedures to ensure compliance, particularly as damages for discrimination remain uncapped.

The Act does provide that in determining whether adjustments should be made to a private household an Employment Tribunal should have regard to the extent to which these would disrupt the household or disturb anyone residing there. This is aimed at the employment of individuals within the home, such as a nanny.

The key changes introduced by the Disability Discrimination Act (Amendment) Regulations 2003 (“the Regulations”) are as follows:

• A new definition of direct discrimination is introduced. The Act previously outlawed three types of discrimination: disability-related discrimination, failure to make reasonable adjustments and victimisation.

  Direct discrimination occurs when the reason for the less favourable treatment is the disability itself rather than a reason related to the disability. The disability does not have to be the only cause of the treatment but must be the effective cause. This new category of unlawful treatment would cover, for example, employers making inaccurate and stereotypical assumptions about disabled job applicants.

  In contrast to disability-related discrimination, it is not possible to justify direct discrimination. Employers therefore need to consider whether training is required, for example in relation to recruitment practices and promotion, to counter any prejudices about disabled people.

• The duty to make reasonable adjustments is expanded. Prior to 1 October 2004, the duty was confined to making adjustments to arrangements or the physical features of premises which place a disabled person at a substantial disadvantage compared to a non-disabled person.

  The new definition extends the duty to cover a “provision, criterion or practice.” The Disability Rights Commission’s amended Code of Practice explains that, “the duty to make reasonable adjustments applies, for example, to selection and interview procedures and the premises used for such procedures as well as to job offers, contractual arrangements and working conditions.”

  The wide-ranging nature of the duty to make adjustments has also been underscored by recent case law which has indicated that in certain circumstances the duty can extend to transferring an individual to an existing vacancy at a higher grade and/or continuing to provide sick pay, after any applicable contractual obligation has been discharged. The Regulations also expand the list of steps that an employer might take to comply with the duty to make reasonable adjustments to include training, mentoring and support.

• An employer may no longer justify the failure to make adjustments, compelling employers to focus on what adjustments are needed and whether they are reasonable having regard to factors such as the costs of the adjustment, the availability of outside funding and assistance, the resources of the employer and the extent to which the step would prevent the disadvantage.

  The Regulations extend the Act’s protection to cover former employees who have been subjected to discrimination or harassment after their employment has terminated provided that the unlawful treatment is closely connected with employment.

  An example of such post-employment discrimination would be refusal to provide a reference on the grounds of the individual’s disability or denying that person access to benefits and services available to other ex-employees. The duty to make reasonable adjustments can also apply after employment has ended. The Regulations do not impose a time limit in relation to the protection afforded to ex-employees.

• A free-standing definition of harassment is created where no comparator is required. A person subjects a disabled person to harassment where for a reason which relates to the disabled person’s disability they engage in unwanted conduct which has the purpose or effect of violating the disabled person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

  An individual’s perception is relevant in determining whether the conduct in question creates an offensive environment or violates their dignity. However, the courts will have regard to all the circumstances in determining whether harassment actually took place, to address the issue of hypersensitivity on the part of the complainant.





• It will be unlawful for a person who has authority or influence over another person to instruct that person or put pressure on them to discriminate. This brings the Act into line with sex and race discrimination law.
• The burden of proof is also changed so that once a complainant has made out a prima facie case of discrimination or harassment, the Employment Tribunal (ET) shall find for the complainant unless the employer can show that it did not discriminate or harass the employee. Previously, where the employer did not discharge that burden, the ET could draw an inference of discrimination. Now, the ET must uphold the employee’s claim.
• There will be a questionnaire procedure to enable complainants to obtain evidence as to whether or not they were discriminated against. To avoid an inference of discrimination by the ET, employers should respond within eight weeks.

In the light of such far-reaching changes, employers may take this opportunity to update equal opportunities policies and provide training to raise awareness of the Act, particularly in relation to the duty to make adjustments.

Future reform
Employers should also be aware of changes to the definition of disability that are anticipated to come into force next year.

The Government intends to introduce a bill on disability discrimination which will amongst other matters deem people with HIV infection, multiple sclerosis and cancer to be disabled from the point of diagnosis rather than from when they experience any effect on their ability to carry out normal day-to-day activities.

The requirement that a mental impairment be clinically well-recognised will also be removed. Under the current regime, a complainant has to show that their mental impairment is either included in the World Health Organisation’s International Classification of Diseases or similar publication or recognised by a respected body of medical opinion.

Loose descriptions such as anxiety, stress or depression do not suffice unless they identify a clinically well-recognised illness. This represents an additional hurdle for people suffering from a mental impairment to overcome, compared to those suffering from a physical impairment.

If this change is implemented, an employee with an alleged mental impairment will be protected under the Act if they can show that the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This will have a significant impact on employees suffering from stress who may have previously failed to discharge the burden of demonstrating that their impairment was clinically well-recognised.

A greater number of employees could therefore be protected by the Act than ever before, making the issue of disability discrimination increasingly important for employers.