Business Matters
Disability Discrimination

Legislation has rendered it unlawful to discriminate against disabled persons in employment and other areas.

A person has a “disability” to which legislation applies, if he/she has a physical or mental impairment which has a substantial and long term adverse effect on his/her ability to carry out normal day to day activities. An adverse effect is “long term” should it last for 12 months or more (or is likely to recur if in remission), it has been left to subsequent Regulations; and to Case Law; and to Governmental guidance, to define just what is meant by “impairment”.

It is important to appreciate that “impairment” is not limited merely to physical impairment, but includes also impairment resulting from mental illness.

5 December 2005 saw important changes and additions to the list of medical conditions capable of constituting “disability” for the purpose of the legislation. From this date, the range of disabilities covered by the Act was extended to include: HIV infection; cancer; and multiple sclerosis.

Although it was thought that, nevertheless, certain types of cancer might be excluded from the definition of “disability” a recent House of Commons announcement which received surprisingly little press coverage, confirmed that there is no decision at present to exclude certain types of cancer from automatic coverage by the Disability Discrimination Act 1995.

An equally important change which took effect from 5 December 2006 extended the range of mental illnesses to be covered by the Act. Hitherto, a mental illness was normally required to be “clinically well recognised” before it could be regarded as an “impairment”. Such restriction is now removed. On the face of it, this relaxation of the Rules will clearly broaden the scope for a mental illness to be regarded as a disability within the meaning of Disability Legislation, but it will continue to be the case that mental illness, in precisely the same way as physical illness, must nevertheless satisfy the criteria for “impairment” in order to be covered by the legislation. This may well lead to a period of uncertainty within that area of the legislation which concerns mental illness.

The changes to the law/rules are of equal relevance to employers as to employees.

Significant numbers of employees now find that they have the protection of legislation; and from an employer’s point of view, an employer will have to be vigilant to ensure that any disciplinary or other action concerning an employee is not discriminatory by virtue of the disability of the employee concerned. In particular employers will need to bear in mind that dismissal of an employee by reason of disability (even if the employer had not appreciated that any medical condition or other disadvantage suffered by the employee amounted, in law, to “a disability”) will be automatically unfair and thus expose the employer to the risk of an Employment Tribunal claim.

Employers should, therefore, review recruitment and disciplinary procedures; bear in mind that there should be flexibility of approach insofar as adjustments in the workplace to assist those suffering from disability are concerned; and bear in mind the availability of advice whether from their legal, human resource, or health and safety advisers, but also from the Disability Rights Commission; and the Government’s own Disability Website.