Employment detail: The basic rules

The "Code"
means the 2004 Code of Practice: Employment and Occupation (pdf file on EHRC website).

Section references
are to DDA 1995 as amended, available on the DRC website - 'DDA and related statutes'.

An employer is not allowed to discriminate against a disabled person (new section 3A and 4, old section 4 #). The employer has a defence if he shows the discrimination is 'justified', but for discrimination on or after 1st October 2004 the justification defence does not apply to 'direct discrimination. There is no longer an exception for an employer with less than 15 employees.

The discrimination must be in one of certain specified areas, but in practice these cover pretty much everything to do with employment. The areas are:

recruitment (as detailed in new section 4(1))
terms of employment,
the opportunities which the employer affords the person for promotion, a transfer, training, or receiving any other benefit,
refusing to afford the person, or deliberately not affording him, any such opportunity
dismissing him, or subjecting him to any other detriment.

In practice many cases relate to dismissal (see statistics). From 1st October 2004 "dismissal" includes:

the termination of employment by the expiry of a period of time (unless the employment is immediately renewed on the same terms); and
constructive dismissal (new section 4(5) - reversing Commissioner of Police of the Metropolis v Harley).

The employer also has an obligation to make reasonable adjustments to accommodate the person who stammers - see Reasonable adjustments.

'Employment'

There are various extensions and exceptions to these employment provisions. For example many self-employed people are protected by the DDA, but the armed forces are not protected.

Subject to the specific extensions, employment must be involved. In Whittick v British School of Motoring a person who stammers was turned down as a driving instructor. He failed in his DDA case as he was looking to obtain a franchise and was not an applicant for 'employment'.

It will often be very clear that a person is employed. Where it is not, the distinction between employment and self-employment can be a difficult one. The courts will not necessarily go along with what the parties call the relationship. There is some very broad guidance on the distinction at http://lawmate.co.uk/?p=21.

Connection with Great Britain

To be covered by the DDA, the employment must have sufficient connection with Great Britain:

The usual way to come within the DDA is for the employment to be at an establishment in Great Britain (DDA s.4(6)).
The DDA also applies if (a) the work is for the purposes of the business carried on at an establishment of the employer in Great Britain and (b) the employee is ordinarily resident in Great Britain either at the time when he applies for or is offered the employment, or at any time during the course of the employment (s.68(2A)). An example might be a foreign based correspondent of a British newspaper recruited in the UK.
There are special rules to decide when the DDA applies to people employed on a ship, aircraft or hovercraft (s.68(2)-(2D)).

In Williams v University of Nottingham (2007) at www.employmentappeals.gov.uk/Public/Upload/07_0124ResfhCNRN.doc, the Employment Appeal Tribunal applied to disability discrimination the unfair dismissal test given by the House of Lords in Lawson v Serco Ltd (www.bailii.org/ew/cases/EWCA/Civ/2004/12.html).

Former employees

These may be covered by the DDA:

As from 1st October 2004: new section 16A provides that:
- discrimination or harassment is covered if it arises out of and is closely connected to the employment (or other relevant relationship).
- a reasonable adjustment duty applies to a provision, criterion or practice applied by the employer to the disabled person in relation to any matter arising out of the employment (or other relevant relationship)
Before 1st October 2004: It had previously been thought that, under the pre-October 2004 law, discrimination against ex-employees was not covered. However, in Relaxion Group v Rhys-Harper the House of Lords reversed this and allowed claims in respect of unsatisfactory references, for example, to proceed . Accordingly it was possible for former employees to bring claims for discrimination occuring before October 2004, but the criteria which must be met are not as clear as under the rules applying from 1st October 2004.

Other legal rights

Whether the DDA applies or not, an employee may also have legal rights. This website only looks at the DDA - for other employment rights you could try the CAB adviceguide at www.adviceguide.org.uk. Other employment rights include:

Unfair dismissal

If the alleged discrimination relates to dismissal, an unfair dismissal claim is often made as well as a DDA claim. In the Bennett case unfair dismissal alone was claimed; a supervisor making fun of the employee's stammer was only a contributory factor in the claim.

Redundancy legislation

Breach of contract

For example, an employer's equal opportunity policy may form part of the employment contract, so that a breach of that policy is a breach of contract.

Constructive dismissal

Constructive dismissal is a specific instance of breach of contract.

In the Bennett case, an unfair dismissal claim, a person who stammers successfully argued that he had been constructively dismissed - though his treatment in relation to the stammer was only a contributing factor. A person who stammers was found not to have been constructively dismissed in Alderson v Walkers Snack Foods, on the particular facts of the case.

See above and Commissioner of Police of the Metropolis v Harley and other cases for the interaction of the DDA and constructive dismissal.

Code of Practice

As from 1st October 2004, employment aspects of the DDA are covered by Code of Practice: Employment and Occupation. This is not an authoritative statement of the law but must be taken into account by the tribunals and courts. It is available on the Disability Rights Commission website.

What is meant by discrimination?

WARNING: The text below needs to be updated. The House of Lords decision in London Borough of Lewisham v Malcolm (June 2008) makes it much more difficult to argue discrimination for a reason related to the disability, unless it is direct discrimination. Claimants are likely to seek to argue their case as a breach of the duty to make reasonable adjustments. More on the House of Lords decision...

Under new section 3A (old section 5 #), an employer discriminates against a disabled person if:

for a reason which relates to the disability, he treats the person less favourably than he treats or would treat others to whom that reason does not or would not apply: and
the employer cannot show that the treatment in question is justified. (What does 'justified' mean?) However, from 1st October 2004 'direct discrimination' can never be justified

The first head is relatively straightforward, with the exception of the person who stammers having to show that the employer's reason was related to the stammer. This is now made somewhat easier because there is a rule shifting the burden of proof to the employer where the complainant has made out a prima facie case. See Complaints and going to court.

What is a 'reason which relates to the disability'?:

The Court of Appeal resolved an ambiguity in favour of employees in Clark v Novacold (1999).
In R v Powys County Council, ex parte Hambidge (2000), a case on supply of services, receipt of disability living allowance was taken into account in a means test for charging for home care. The Court of Appeal held that the causal link was not close enough on the facts for there to be "a reason which relates to the disability".
In Taylor v OCS Group Ltd (2006), the Court of Appeal held that for less favourable treatment to be discrimination, the disability-related reason must be present in the employer's mind. If there was more than one reason, it would be enough that the disability-related reason had a significant influence on the employer's decision.

The DDA extends to situations where a disability worsens during the employment or the nature of the employment changes (para 8.15 - 8.18 of Code).

Employer's knowledge

There are conflicting cases on whether an employer may be treating a person less favourably "for a reason which relates to [his] disability" if the employer did not know of the disability, and perhaps even could not reasonably be expected to have known of it. More on this...

Job adverts

There is a prohibition on discriminatory advertisments, enforceable (only) by the Disabilty Rights Commission (new sections 16B and 17B - different rules applied before October 2004).

The Disability Discrimination Act 2005 (section 10) extends liability to third party publishers - such as a newspaper - as well as the person placing the advert. Third party publishers may have a defence based on reasonable reliance on a statement by the person causing the advert to be published.

Harassment

Before 1st October 2004, harassment normally came within the general discrimination rules as "any other detriment". From 1st October, harassment is specially defined. More on harassment...

Victimisation

People bringing a claim under the DDA, or perhaps supporting a colleague in doing to, may be concerned that they will be victimised by the employer in future. Section 55 gives rights to help protect people bringing or involved in proceedings under the Act. The definition of victimisation was extended with effect from 1st October 2004.

Positive discrimination

The Act does not prohibit discrimination in favour of disabled people. Local authorities though are prohibited from doing this as they are obliged to appoint staff on the basis of merit alone (Local Government and Housing Act 1989 section 7), albeit taking into account any adjustments which would have to be made under the Disability Discrimination Act (para 13.25 of Code).

Other pages discuss what is meant by direct discrimination, which cannot be justified, and the justification defence which applies where the discrimination is not 'direct discrimination'.

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