Discrimination (Disability)

The provisions set out for employers in the Disability Discrimination Act apply to all organisations regardless of how many people they employee.

 There are three main tests as to whether a disability falls within the ambit of the Disability Discrimination Act:

• The disability must be a physical or mental impairment. A physical impairment can be an illness such as cancer or AIDS, a disability such as deafness or a severe disfigurement. A mental impairment includes mental illnesses such as schizophrenia or bipolar affective disorder;
• The disability must have a substantial adverse impact on an individual's ability to carry out normal day to day activities. 'Normal day to day activities' means what it says - these could be activities such as making a cup of tea, using public transport, using a telephone or interacting with others;
• The disability must be long term. This is usually taken to mean in excess of one year.

The disability may be a 'hidden impairment' for example arthritis, dyslexia, or asthma, these impairments are not immediately obvious and so may require additional assistance.

Mental impairments include the majority of mental illnesses and personality disorders. Excluded conditions include:

• Alcohol or tobacco addiction or addiction to non-prescribed drugs;
• Seasonal Allergic Rhinitis (e.g. hayfever), except if this aggravates other conditions;
• A tendency to violent behaviour or to abuse others;
• A tendency to steal or set fires;
• Voyerism;
• Exhibitionism.

Employers are required to make 'reasonable adjustments' to the working environment or job tasks if disabled employees are put at a substantial disadvantage. Reasonable adjustments could include:

• Rearranging furniture to provide better access;
• Re-allocating some duties to another employee;
• Allowing the employee to work more flexible hours;
• Installing handrails and ramps at the entrances to the workplace;
• Providing information in accessible ways e.g. Braille, audio tapes etc;
• Providing amplified telephone equipment for the hard of hearing.

The legislation outlines factors which have a bearing on whether it will be reasonable for an employer to have to make adjustments these factors are:

• How effective the adjustments would be in preventing a disadvantage;
• How practical the adjustments would be and whether they would be financially viable;
• The availability to the employer of financial or other help to make the relevant changes;
• The size and the type of business.

When recruiting the employee should:

• Have the ability to provide job application forms in Braille or large print;
• Allow applications in to be submitted in formats other than writing;
• Have the facility to provide a sign language interpreter.

When recruiting, job descriptions and any advertising material should only include requirements that are job relevant. For example, words such as “energetic” should be avoided when advertising for applicants for a job of a sedentary nature.

It is advisable to ask job applicants if they have a disability and, if so, if they require any special arrangements to be made for job interviews. It is also advisable to require employees to inform the organisation of any changes in health or capacity that may adversely affect their job performance of where there job duties may exacerbate their condition.

In assessing whether an adjustment is 'reasonable' or not, the cost of making it and the extent to which the adjustment would enable the disabled person to perform the job effectively should be taken into account.

Particular care must be exercised when dealing with long-term sickness absence to ensure that there are no DDA implications. Employers may be inclined to consider terminating the employment of an individual who is likely to be absent from work because of long-term sickness or incapacity - particularly in instances where the employee has yet to accrue sufficient length of service to be protected by the Employment Rights Act (i.e. 12 months). In such instances the employer should make every effort to identify whether the employee concerned is potentially suffering from what could qualify as a 'disability'. The employer should be seen to consult with the employee, seek a medical report from the employee's GP or consultant, consider changes to job duties that may facilitate an early return to work and, potentially, consult an occupational health specialist. Such an approach will enable the employer to demonstrate that they have explored any potential reasonable adjustments that could be made to enable the employee to return to work and have acted responsibly and fairly.