Guidance of Disability Discrimination Act

When advising Meg it would be necessary to firstly establish if she falls under the Disability Discrimination Act (DDA) 1995 [1] which is subject to the provisions of schedule 1, a person has a disability for the purposes of his Act if he has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day-to-day activities. It is not necessary for a person to suffer an impairment under the Act as some conditions are “deemed" as disabilities irrespective of whether they cause the person an impairment. Deemed conditions are certified blindness or partial sightedness, [2] HIV infection, multiple sclerosis, or cancer, although provisions may be made to exclude certain types of cancer, this is further expanded in the Guidance and Regulations [3] .

For Meg to fall under the DDA she will be required to come within the scope of ss1 and 2. [4] To do so, it is necessary to establish if Meg has an impairment, the term ‘impairment’ is not defined in the Act. A definition of the term impairment was given by Mummery L.J when he stated that “an “impairment" must be given its ordinary meaning." [5] In Millar v Inland Revenue [6] it was established that having an impairment need not be a clinically recognised disability as having an impairment does not require a claimant to have an illness, an example being, an amputee does not have an illness but clearly has an impairment. Guidance was provided in Goodwin v The Patent Office [7] where the approach by the Employment Tribunal (ET) was a series of questions: i) Does the applicant have an impairment? The Guidance offers a non-exhaustive list of impairments [8] ii) Does it have an adverse effect on the ability to carry out normal day to day activities? This is otherwise known as the functional requirement. iii) Is the adverse effect substantial? iv) Is the adverse effect long term?

In Meg’s case she has been diagnosed with a degenerative disease, and from the guidance it is clear that a degenerative disease would mean Meg now suffers from an impairment which comes under the DDA. It is clear that her ability to carry out her normal day-to-day activities currently under schedule 1, are being adversely affected, as it is noted that complaints have been received by her employer. Normal day to day activities include things that are carried out by most people on a fairly regular basis, which include things such as, walking, reading and writing as found in Abadeh v BT. [9] Morison, J stated in Goodwin v The Parent Office [10] that there was no definitive list of what constitutes a day to day activity “it was best left unspecified: easily recognised, but defined with difficulty". [11] Day to day activities may exclude particular types of work as they are not deemed normal. An example may be a bricklayer now unable to his job to an acceptable standard, and if it affects his ability to use a computer to send emails.

The effects of Meg’s tiredness and lack of concentration are provided for under Schedule 1 part 4(g). [12] The substantial adverse effects means more than trivial rather than very large and of course if her boss and colleagues are complaining it is likely that Meg’s work is not being carried out in the usual timescale or it may not be up to the normal standard expected of someone doing that particular job.

Schedule 1, paragraph 2(1) stipulates that the effect of an impairment has a long term effect if: (a) it has lasted at least 12 months; or (b) the period for which it lasts is likely to be at least 12 months; or (c) it is likely to last for the rest of the life of the person affected. In Meg’s case paragraph 2(2) is relevant as it provides that “where an impairment ceases to have a substantial adverse effect ... it is to be treated as if they were continuing to have that effect if that effect is likely to recur". This will provide for intermittent effects as they will be treated as if they were continuing effects. As Meg’s prognosis is a degenerative disease, which will eventually leave Meg unable to work it is an adverse effect that is long term, confirming that Meg has an impairment [13] under the Guidance A6.

Progressive conditions such as Meg’s are protected by schedule 1, paragraph 8 at it protects a person with a progressive condition that results in an impairment that has some adverse effect, but which is likely to become substantial. Paragraph 8 offers protection at the point of when the effects arise and not from the point of diagnoses, so long as it is “more likely than not" [14] and that at some stage in the future the effects will become substantial. In some cases where progressive conditions are likely or lead to the death of a claimant before the 12 months, the 12 months rule may not apply.

Under section 3A(1) of the DDA the definition of discrimination and harassment provides that “ ... a person discriminates against a disabled person if – (a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and (b) he cannot show that the treatment in question is justified.

As much as Norman has been sympathetic to hear of Meg’s condition, the question now is whether Meg has been treated less favourably than others may have been treated who do not have the degenerative disease. This also needs to be viewed retrospectively.

When Norman stated he needs a personal assistance who is ‘reliable and robust’ this would need to be viewed in the context of what Meg’s duties include as a personal assistant and what she is required to do within her role. This may negate Norman from being discriminatory based on the requirements of her job and Meg’s capabilities not permitting her to perform her job, however, if Norman is treating Meg less favourably because of her disability he will fall foul of section 3A(1)(b).

Consideration also needs to be given for the statement of ‘reliable and robust’. As it is not clear if Meg is off sick because of her disability or because of Normans comments. The question needs to be asked. Did Meg feel humiliated and in-turn suffered harassment under the meaning of 3B(1) [15] where “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 – (a) violating the disabled person’s dignity, or (b) creating an intimidating, hostile, degrading , humiliating or offensive environment for him.

Norman’s suggestion that he should investigate whether she can be transferred to a less demanding job, is likely to be seen as seeking to make reasonable adjustments which would not engage section 3A(2) which establishes that “a person also discriminates against a disabled person if he failed to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person". The DDA imposes positive duties to make reasonable adjustments and discriminate in favour of disabled people where they have been put at a substantial disadvantage. [16] When using a comparator for determining if there is a ‘substantial disadvantage’, a comparator for Meg must be selected as in the case of Smith v Churchills Stairlifts plc [17] when it was held that a correct comparator is not the population as a whole, but those others who fulfil the other conditions for the job who are not disabled.

As Meg’s employer was made aware of her illness they can be held liable for discrimination, in contrast if they had not, they could not. It is only when they knew, or ought to reasonably to have known, that the disabled person had a disability and was likely to be put at a substantial disadvantage. [18] This was demonstrated in Lanarkshire Primary Care NHS Trust v Naicker [19] 

For the purposes of establishing if Meg’s employer has discriminated against her with regards to not paying her wages it is necessary to look at O’Hanlon v Commission for HM Revenue & Customs [20] where it was found that, to apply the same rules to a non disabled person as a disabled person would be to disadvantage disabled people, however, the employer is not under an obligation to adjust a sick pay scheme as it is not seen to be a reasonable adjustment. It is also considered as counter-productive with no incentive to return to work.

On the basis that Meg’s employer is considering her dismissal, it is necessary to establish under s.3A(1) DDA if for a reason which relates to her disability, she is treated less favourably than a person to whom the disability-related reason does not or would not apply. In the case of, Mayor and Burgessess of London Borough of Lewisham v Malcolm [21] the House of Lords held that the comparison focuses on the disability itself, rather than the non-disability reason. Therefore Mr Malcolm a disabled person was compared to someone non-disabled who also breached their tenancy agreement. It was found that Mr Malcolm had been treated by the local authority in exactly the same way as third parties who had also sub-let would have been treated, concluding that there was no disability related discrimination. In Meg’s cases it is necessary to establish that if her employers are considering dismissal, whether the reason was based on her disability, which lead to the absence, or her absence. In Fareham College v Corporation v Walters [22] the tribunal found that the College had denied Walters a phased return to work, which was argued as reasonable in the circumstances. The College had an absence policy which they compared with other employees absences and the outcome, which was not different. This was deemed as not having a reasonable adjustment based on the comparative not being at the disadvantage the claimant was.

It is possible for an employer to justify a disability–related discrimination claim if they are able to show that it is both material to the circumstances and substantial. In Jones v Post Office [23] the Court of Appeal held that a tribunal should consider whether the reason advanced by the employer for the treatment of the disabled person fell within or outside the range of what a reasonable employer would have relied on as a material and substantial reason for the less favourable treatment.

When addressing Rose’s case, Norman declines Rose the position of personal assistant when he states that Rose is ‘far too young’ for the job, it would appear that this decision was solely based on her being 19 years of age. This is of course age discrimination, which is a protected right by Article 13 of the Treaty of Amsterdam. [24] The framework introduced by the Employment Equality Directive [25] , resulting in the Employment Equality (Age) Regulation 2006. [26] This ensures the prohibition of discrimination on grounds of sexual orientation, religion, disability and age, covering only employment and vocational training. It states in section 3(1)(a) of The Employment Equality (Age) Regulations [27] that it is discriminatory if ‘... a person (A) discriminates against another person (B) if – (a) on grounds of B’s age, A treats B less favourably than he treats or would treat other persons , or ..’ thus, it is likely that Norman will be found to be discriminating on the grounds of Rose’s age, unless of course, he can show that there was a justified reason for exception, which is provided for in section 8 of the Regulation.

When a claim of indirect discrimination is claimed it is possible to raise a defence. This can only be relied upon to justify the indirect discrimination. Reference is made to the provision, criterion, and practice being objectively justified by a legitimate aim and where the means of achieving that aim are appropriate and necessary. Reliance being only where there is a genuine occupational requirement. [28] In the UK the provisions provide that indirect discrimination is unlawful if it cannot be showed to be a proportionate means of achieving a legitimate aim. The Bill harmonises justification on the basis of a ‘proportionate means of achieving a legitimate aim’. It is not sufficient for the employer to show that he considered his reasons to be adequate. [29] This is explained in the case of Colin Wolf [30] which involved the age limits of firemen, also in the case of Domenica Peterson [31] where the age limit of panel dentists was addressed. In both EU judgements the Court held that age discrimination was permitted if done for the right reason, such as when it is required by the nature of the job (like being a fireman) or if it is necessary for the protection of health or if it is justified by a legitimate aim, including employment policy, labour market and vocational training objectives (such as in the case of dentists).

In the case of Wilkinson v Springwell Engineering [32] the employer lost their case when an employee alleged that she was told she was “too young for the job" at the time she was 18. When the case reached the tribunal, the claim was upheld and a declaration of age discrimination was found. It was stated that Springwell had assumed a relationship between experience and age on the one hand and lack of experience and incapability on the other. The tribunal found this to be a stereotypical assumption to the prejudice of the employee and the predominant reason for dismissal. Of course this is a more serious situation than Rose finds herself in as she has not been dismissed like Ms Wilkinson, but it does confirm that tribunals take claims of age discrimination very seriously, also this case highlights that it is not just older employees that are discriminated against because of their age The stereotypical approach is considered to be direct discrimination which may be unconscious, based on stereotypical views of the group under consideration rather than on any observed characteristic of the individual as was found in Horsey v Dyfed County Council. [33] In this case the Council based a decision on a stereotypical view, in that Mrs Horsey was likely to follow her husband’s job after a University course, than he hers. Browne-Wilkinson, J stated: ‘In our view ... the tribunal has to compare the treatment of Mrs Horsey with the treatment which would have been afforded to a married man.’ [34] 

In Rose’s case there may be a possibility that she will be able to claim for injury to feelings as in the case of Chief Constable of West Yorkshire v Vento. [35]