Disability Discrimination
The obligations of employers towards disabled job applicants and disabled employees are set out in the 1995 Disability Discrimination Act (DDA). The DDA only applies to employers with 15 or more employees (including part time and full time employees) – this means that small employers with less than 15 employees cannot be subjected to claims of disability discrimination at the Employment Tribunal.
In order to create disability discrimination legislation, parliament needed to introduce a legal definition of who counts as a ‘disabled person' within the meaning of the Act. The statutory definition of a disabled person is a person suffering from a physical or mental impairment that has a long term (12 months) and substantial effect on their ability to carry out day to day activities. The definition of disability includes many people who may not ordinarily consider themselves disabled. For example, the definition will often include people who have suffered from a mental illness, people suffering from serious back conditions and people suffering from different forms of repetitive strain injury.
In general terms, there are 3 areas where employers need to understand their obligations towards disabled people:-
- It will be an act of discrimination for an employer to refuse to employ a disabled person for a reason related to their disability unless that decision is genuinely justified. For example, it will be an act of discrimination if an employer refuses to employ somebody simply because they have mentioned on the application form that they have suffered from a mental illness or a serious repetitive strain injury at some point in that past. The legislation allows employers to ask prospective job applicants about whether they have a disability but the code of practice suggests that employers should be positive about this and state on any application form that they are prepared to make reasonable adjustments to facilitate the employment of a disabled person.
- Both in relation to job applicants and in relation to existing employees, employers are under an obligation to make ‘reasonable adjustments' to the working environment in order to enable the disabled person to continue working on an equal basis with other employees. These reasonable adjustments can include, for example, making changes to the employees job duties, altering the employees working hours or providing special equipment. The obligation is to make ‘reasonable adjustments' and, in considering what is reasonable, the Employment Tribunal will (amongst other things) take into account the financial resources of the employer and the extent to which any adjustment would make a significant difference.
- It will be an act of discrimination for an employer to dismiss a disabled employee on grounds of sickness absence unless that decision can be shown to be justified. In order to justify any dismissal decision, the employer will generally need to show that the employee has been given a proper opportunity to make a recovery, that they have obtained appropriate medical reports and that they have consulted fully with the employee. The consultation process with the employee will need to include proper discussions with that disabled person about any adjustments that could be made to facilitate their return to work.
Disabled job applicants and disabled employees who believe that they have suffered discrimination are entitled to make claims to the Employment Tribunal to seek compensation for injury to feelings and compensation for loss of earnings. There is no upper limit on the compensation for loss of earnings that can be awarded by the Employment Tribunal
For further information contact Paul Archer or Helen Climance at Lemon & Co, Solicitors on 01793 527141 alternatively by email on paul.archer@lemon-co.co.uk or Helen.Climance@lemon-co.co.uk
Note: This article gives a general overview only and cannot be relied upon in any particular case. It does not constitute legal advice. Specific legal advice must always be considered.
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<p><strong><a href="http://www.lemon-co.co.uk/article_disability-discrimination.php">Disability Discrimination </a></strong><br />
The obligations of employers towards disabled job applicants and disabled employees are set out in the 1995 Disability Discrimination Act (DDA). The DDA only applies to employers with 15 or more employees (including part time and full time employees) – this means that small employers with less than 15 employees cannot be subjected to claims of disability discrimination at the Employment Tribunal...</p>