New Disability Discrimination Regulations

By Sadiq Vohra, employment lawyer

The Disability Discrimination Act 1995 (Amendment) Regulations 2003 will come into force on 1 October 2004. They affect businesses, service providers and employers alike. However this article will concentrate on the effect of the new Regulations on Employers. It does not cover in any detail the provisions of the 1995 Act.

Who do the Regulations apply to?
The Regulations extend the scope of the Disability Discrimination Act 1995 by:
1. Removing the small employer exemption - defined as employers employing less than 15 employees. This means that the Disability Discrimination Act as amended, will apply to all employers;
2. Covering employment on ships, hovercrafts and planes;
3. Covering fire-fighters, prison officers and specialised police forces (but not the armed forces);
4. Covering partnerships, barristers, advocates and their pupils, qualifications bodies and practical work experience.
Types of discrimination
As we have seen with the new Regulations relating to discrimination on the grounds of sexual orientation and religious belief, these new Regulations clarify the types of discrimination by providing clearer and additional definitions of:
      1. Direct discrimination
2. Disability-related discrimination
3. Failure to make reasonable adjustments
4. Harassment
What is the difference between direct discrimination and disability-related discrimination?
Direct discrimination is where the discrimination is because of the disability. Disability related discrimination is usually more subtle or indirect. For example, a policy to dismiss after a period of sick leave may affect more disabled people than able bodied people.

The Regulations says that there shall be no direct or indirect discrimination “on the ground of" disability, except where genuine occupational requirements apply.
Section 3A(5) of the Regulations states:
"A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person."

 

 

Example: A disabled person takes six months' sick leave because of his disability and is dismissed. A non-disabled fellow employee also takes six months' sick leave (due to a broken leg) but is not dismissed. The difference in treatment is attributable to the employer's unwillingness to employ disabled staff and the treatment is therefore "on the ground of" disability, i.e. direct discrimination. The non-disabled employee is an appropriate comparator because his relevant circumstances are the same as those of the disabled person. This directly discriminatory treatment will not be capable of being justified.

By contrast, in determining whether disability-related discrimination has occurred, the less favourable treatment must be compared with that of a person to whom the disability-related reason does not apply. The comparator may therefore be a non-disabled person, or a person with the same or different disabilities. However, the disability-related reason, such as a sickness record, must not apply to the comparator.


Example: A disabled person takes six months' sick leave because of his disability and is dismissed as the employer's sick policy (which is applied equally to all staff, whether disabled or not) is to dismiss all employees who have taken this amount of sick leave. The dismissal is not "on the ground of" disability, but for a disability-related reason. The correct comparator is someone to whom that reason does not apply, i.e. someone who has not taken 6 months' sick leave. As such a comparator would not have been dismissed, this will amount to disability-related discrimination, but it will be open to the employer to show that the discriminatory treatment is justified.

Failure to Make Reasonable Adjustments

The Disability Discrimination Act in its current form provides that where any arrangements made by or on behalf of an employer place the disabled person at a substantial disadvantage as compared to someone who is not disabled, the employer is under a duty to make reasonable adjustments to accommodate the disabled person, unless he can justify that carrying out that duty would be unreasonable for him.
Under the new Regulations, the duty to make reasonable adjustments will be widened from "arrangements made by or on behalf of an employer" to "provision, criterion or practice applied by or on behalf of an employer", and the duty will apply to all stages of the employment process, rather than just to recruitment and the terms on which employment is afforded.
The Regulation also adds to the criteria to be taken into account when determining whether an adjustment is reasonable:
 (A) the nature of the employer's activities and the size of his undertaking;
 (B) Where the step would be taken in relation to a private household, the extent to which taking it would disrupt that household or disrupt any person residing there.
Harassment

This is specifically defined in the Regulations for the first time as:
"A person subjects a disabled person to harassment where, for a reason which relates to the disabled person's disability, he engages in unwanted conduct which has the purpose or effect of:

  1. violating the disabled person's dignity; or
  2. Creating an intimidating, hostile, degrading, humiliating or offensive environment for him."

Post-employment discrimination

As per recent case law, the Regulations provide that it will be unlawful for an ex-employer to discriminate against a former employee by subjecting him to a detriment or harassment. There will be no time limit on the obligation not to discriminate after employment has ended (although the three-month time limit from the alleged act of discrimination will apply to bringing claims).
However, the individual being discriminated against will need to show a "close connection" between the discrimination and the former employment relationship.
Burden of proof
In line with other discrimination legislation, these new Regulations stipulate that once it is established that  that on the face of it, discrimination has occurred, it is for the employer prove that he did not commit an act of discrimination. If an employer cannot do so, an Employment Tribunal will find against the employer.
Questionnaires
 
Currently, a complainant may serve a Discrimination Questionnaire at any time before filing a complaint (provided it is within three months of the act complained of), or up to four weeks after filing a complaint. This questionnaire is a means of seeking further information about the potentially discriminatory acts. The employer is currently required to reply "within a reasonable period".  However these Regulations stipulate that a response will be required within eight weeks, unless they have a good reason. If there is a deliberate failure to respond without reasonable excuse, or if the reply is evasive, a tribunal is entitled to draw an adverse inference from that failure.
Summary
These new regulations widen the scope of the original Disability Discrimination Act which now applies to all employers, who will have to be more careful in considering whether their premises, policies and procedures put disabled individuals at an unfair disadvantage. However they may be able to justify not making reasonable adjustments by reasons such limited resources.