Disability Discrimination Act 1995 in the Workplace and Its Effect on Employment

Disability Discrimination Act 1995 in the workplace and its effect on employment

Introduction

The act was introduced with the view to eliminate discrimination amongst disabled people in employment, throughout the assignment I will critically analyse the different areas of the Disability Discrimination Act 1995 and find out what effect they have had on disabled people in employment.

Definition of disability

A disabled person is someone who has a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day to day activities (section 1 (1) DDA 1995). The disability discrimination act 1995 was introduced to outlaw discrimination against disabled employees in the UK and covers prospective, current and former employees, whether full-time, part-time or temporary. The legislation also included an obligation on the employer to make reasonable adjustments the workplace where a disabled person is placed at a substantial disadvantage compared with people who are not disabled (Pitt, 2006). Examples of the types of disability the act covers could be; cancer, diabetes, multiple sclerosis, heart conditions, hearing or sight impairments, mobility difficulties, mental health conditions or learning difficulties (Equality and Human Rights Commission). With the introduction of this act disabled people now have rights in employment and other areas (Sargeant and Lewis, 2006). It is now unlawful to treat a disabled person less favourably than another person without a disability, unless the employer can justify less favourable treatment (Pitt, 2006).

Direct discrimination

Direct discrimination occurs when a person is treated less favourably than someone else. This could be on the grounds of their disability than the employer treats or would treat someone without that disability whose relevant circumstances (including their abilities) are the same or not materially different from those of the disabled person (DDA, s.3A(5)). This type of discrimination can be found in the case of Clark v Novacold (1999). After a suffering from a back injury Mr Clark was forced to take time off from his post at Novacold. With no anticipated return to work date Mr Clark was dismissed from his post. Having been off work for five months Mr Clark had insufficient service levels to claim unfair dismissal and had to rely on the Disability Discrimination Act. The employment tribune decided a comparison should be made with someone absent from work for the same length of time who was not suffering from a disability. After the comparison was made the tribunal held that there was no less favourable treatment and there was no discrimination. The Employment Appeal Tribunal also agreed with this ruling. However the court of appeal have now confirmed, to take such a narrow approach misses the point of the protection the Disability Discrimination Act as the act was intended to cover the consequences of and the perception of disability (Thompson law website, 1999).

To establish if the employers actions have been justified the tribunal will have to use a test to see if the employee has been less favourably treated in any way. The test in this case would be to compare the treatment the disabled employee received with someone else who is not disabled. By comparing the treatment of Mr Clarke to someone else it is clear to see that the employers had acted reasonably. If another employee had been off sick for 5 months then they would have been dismissed as well (Thompson law website, 1999). However the Employment Appeal Tribunal have since ruled that this misses the point of why the Disability Discrimination Act 1995 was introduced as Mr Clarke was off work as a consequence of his disability. The outcome of this case has failed the employee and the Disability Discrimination Act. The employer in this particular case should of established how bad his disability was and seen if there were any reasonable adjustments that could have been made to help the employee return to work. The employers could have had the employee undertake a medical examination and with the results draw up any reasonable adjustments, such as changing his particular job or adjusting his existing position to accommodate his current needs. By taking these steps the employer could be sure they have done all they can for the employee and safeguard themselves from any legal action as their dismissal would be justified.

Disability related discrimination

Section 3A(1) of the Disability Discrimination Act states that an employer discriminates against a disabled person if the discrimination is related to the persons disability or if the treatment they receive differs from the treatment of persons without a disability unless the employer can actually justify the less favourable treatment.

In Jones v Post office (2001) Mr Jones worked as a driver for the postal service when he developed diabetes. After discovering his disability Mr Jones’s employers removed him from his driving duties for health and safety issues, as their policy was that any drivers receiving insulin treatment should not carry on in their existing role in case they suffered a hypo attack whilst driving. After reviewing their decision they allowed Mr Jones to return back to his driving duties limiting his driving hours to two hours in any twenty four. Mr Jones was unhappy at this decision and went to the Employment tribunal who accepted Mr Jones’s claim of disability discrimination on the basis that the limiting his driving hours was not justified. The tribunal heard medical evidence brought by both parties so they could determine if the drivers risk fell above or below the levels of acceptability. The tribunal sided with the medical evidence brought by the driver and ruled that the action taken by the post office was not justified. This decision was then successfully appealed by the employer at the Employment Appeal Tribunal who said the only issue the Tribunal should consider is whether the less favourable treatment could properly be described as "material to the circumstances" and "substantial" under section 5 of the Disability Discrimination act (stammering law website, 2007).

The outcome of this case was defiantly the correct decision. Material to the circumstances means that there must be a reasonably strong connection between the employer's reason and the circumstances of the individual case. By applying this to the case study the employers reason for the cut back of hours was due to health and safety issues regarding Mr Jones’s disability, and was also