The Disability Discrimination Act 1995 (DDA) imposes obligations on employers and confers rights on disabled workers. While there are some similarities in approach to race and sex discrimination legislation, the DDA also involved major differences. Of these, two are pre-eminent.

• Only persons with a condition failing within the definition of “disability” qualify for its protection
• Uniquely in domestic discrimination law, the DDA imposes obligations on employers to treat disabled person more favourably, in certain circumstances.

Types of discrimination

The DDA prohibits four different types of discrimination of which two do not have any parallels in sex or race discrimination legislation. The four are:

• Direct discrimination
• Disability-related discrimination
• Failure to comply with a duty to make reasonable adjustments
• Victimisation

There are also other types of potentially unlawful behaviour, namely:

• Harassment
• Instructions or pressure to discriminate
• Aiding an unlawful act

Disability-related discrimination

A discriminates against B if, for reason related to B’s disability, A treats B less favourably than A treat or would treat someone to whom that reason does not apply, and A cannot show that the treatment is justified. This has become known as “disability-related discrimination”.

In addition, if an employer is also under a duty to make reasonable adjustments, but fails to comply with that duty, its less favourable treatment of a disabled employee cannot be justified under section unless it would have been justified even if it had complied with that duty. This exercise entails the tribunal asking itself the following questions:

• Was there less favourable treatment that an appropriate comparator for a disability-related reason?

• Was the employer under a duty to make reasonable adjustments?

• Did the employer fail to comply with that duty? If so, then the less favourable treatment cannot be justified unless it would have  been justified even if the employer had complied with the duty to make reasonable adjustments.

Duty to make reasonable adjustments

The DDA imposes a duty on employers to make reasonable adjustments to premises or working practices to take account of the needs of a disabled employee or job applicant.

Where “a provision, criterion or practice applied by or on behalf of an employer, or any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or physical feature, having that effect”.

A failure to make reasonable adjustments is classed as a form of discrimination in itself. Furthermore, an employer will not be able to justify disability-related discrimination where there were reasonable adjustments which could have been made, unless the employer shows that, even with those adjustments, the discrimination would still have been justified. 

Possible adjustments

Where a disabled employee is placed at a substantial disadvantage by a provision, criterion or practice or physical feature, the employer is under a duty to take reasonable steps to rectify that disadvantage. The DDA sets out a non-exhaustive list of steps which may be taken by the employer, including:

• Allocating some of the disabled employee’s duties to another employee

• Make adjustments to premises.

• Transferring the disabled employee to fill an existing vacancy (whether at the same level or at a more senior or junior level). Consideration should be given to waiving any competitive interview requirements.

• Altering the disabled employees’ hours of work or training (which may include allowing a phased return to work).

• Assigning the disabled employee to a different place of work or training.

• Giving, or arranging training or mentoring.

• Acquiring or modifying equipment.

• Providing a reader or interpreter.

The importance of reasonable adjustments

The duty to make reasonable adjustments is arguably the centrepiece of the DDA. The vast majority of claims brought under the DDA are based on or include allegations of failures to make reasonable adjustments.

By definition, the range of reasonable adjustments is limitless. An employee will complain about what an employer failed to do, not what it managed to do. It will normally be possible for an employee to raise suggestions of adjustments that were not considered or were not implemented by the employer.

Failure by an employer to carry out reasonable adjustments in relation to a disabled employee can be a fundamental breach of the obligation of trust and confidence entitling the employee to resign and claim constructive dismissal.

Harassment 

Harassment is defined as:

• Unwanted conduct
• which has the purpose or effect of either violating the disabled person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her.

Unlawful acts

The DDA also declares that it is unlawful for a person to either:

• Instruct another to do any act which is unlawful

• Aid another in doing the unlawful act

Who is protected?

The DDA covers discrimination against employees and applicants for employment.

The DDA also covers discrimination by and in relation to office-holders, partners in firms, qualifications bodies, the police, barristers and barristers’ clerks, trade unions, charities, those engaged in practical work experience and the provision of occupational pensions and group insurances services

Job applicants

With regard to the recruitment process, it is unlawful for an employer to discriminate against a disabled person either:

• In the arrangements which it makes for the purpose of determining to whom to offer employment

• In the terms on which it offers employment

• By refusing to offer, or deliberately not offering,

“Arrangements” is construed broadly. It is likely to include, for example, the physical arrangements for interviews, the format and content of application forms, and the job requirements in any particular case.  Even if the general approach or written policy in non-discriminatory, the application of the arrangements made might still be. employers should therefore be prepared to make reasonable adjustments in such circumstances, which may include, for example, the provision of application forms in Braille or large print.

Current employees

With regard to current employee, it is unlawful for an employer to discriminate against a disabled person either:

• In terms of employment which it affords.

• In the opportunities which it affords for promotion, transfer, training or receiving any other benefit.

• By refusing to afford, or deliberately not affording, any such opportunity

• By dismissing an employee, or subjecting them to any other detriment

Former employees

Where a disabled person’s employment has come to an end it is unlawful for his former employer to discriminated against him by subjecting him to a detriment or subjecting him to harassment where the discriminate or harassment arises out of and  is closely connected to the relevant relationship.

So, for example, a refusal to provide a reference for a former employee on the ground of their disability would amount to discrimination.