SOCIETY OF OCCUPATIONAL MEDICINE
GUIDELINES FOR OCCUPATIONAL PHYSICIANS ON THE
DISABILITY DISCRIMINATION ACT 1995
(Continued - Part 2)
Disability has not generally been seen as a discrimination issue. Acknowledging the problems that disabled people face and the need for this legislation is important. Occupational physicians must be prepared to review their assumptions about disability and understand that disabled people have rights as enshrined in the Act.
The parts of the Act dealing with employment became law on the 2 December 1996. These are supported by secondary legislation(2). The Act puts into statute a definition of disability and makes it unlawful to discriminate against disabled people where this cannot be justified. The Act in effect regulates many aspects of the practice of occupational medicine. These guidelines have been written to provide occupational physicians with timely advice on aspects of the Act that are thought relevant to the practice of occupational medicine. The Act is however wide ranging in its scope and the reader is recommended to refer to the references at the end of this document for further information. At the time of going to press there has been no relevant case law. It is recognised therefore that guidance to occupational physicians may change in the light of experience.
Occupational physicians should see the Act as a unique opportunity for the development of their speciality. There are areas where the development of occupational medicine may be encouraged through the implementation of the Act. Ensuring that disabled people are not unjustifiably discriminated against by occupational physicians will require and foster an evidence based approach to occupational medicine.
Summary of the Act
The Act defines disability as a physical or mental impairment which has a substantial and long term adverse effect on a persons ability to carry out normal day to day activities. The Act states that discrimination occurs when a disabled person is treated less favourably than someone else, for reasons associated with their disability, but where the treatment cannot be justified. With regard to employment, discrimination can occur in all aspects of everyday working arrangements and in the areas of recruitment and retention of employees, promotion and transfers, training and development, the dismissal process and access to benefits provided by the employer.
Employers may also be found to have discriminated unlawfully if they fail to make reasonable adjustment to the workplace and/or to the employment arrangements, which would otherwise have overcome the disadvantage encountered by a disabled person. In most cases there should be no doubt that a person is or is not disabled, as defined by the Act. In any specific case where there is doubt as to whether an individuals condition represents a disability, as described by the Act, it is the recommendation of the Working Group that the employer or occupational physician behaves as though the individual is protected by the Act. Only an industrial tribunal or court can say with certainty who is disabled. The Working Group would endorse the view that objective consideration of reasonable adjustment is the essential element of the Act and the key to avoiding unjustifiable discrimination. It should be noted that there is no legal objection to positive discrimination in favour of disabled people: in fact, the Act encourages it.
The Act applies to all employers with 20 or more employees. There are some exemptions. These include people serving in the armed services, police officers, (including: members of Ministry of Defence Police; British Transport Police; Royal Parks Constabulary; United Kingdom Atomic Energy Authority Constabulary,) fire brigade members who take part in fire fighting, Ministry of Defence fire fighters, prison officers and prison custody officers. In addition the Acts employment provisions do not apply to people working on board a ship, aircraft or hovercraft or to people who work wholly or mainly outside the United Kingdom.
In considering the definition of disability, guidance to the Act describes a substantial adverse effect as something which is more than minor or trivial (3). This may initially appear to be an unhelpful description but the guidance does much to clarify this, by taking a functional approach to defining disability in terms of the effect on day to day activities and giving practical examples. The Act describes a long term effect as one which has lasted at least 12 months or is likely to last at least 12 months. A condition which may improve but has the potential to recur will also be considered as having a long term effect. Other than for spectacles, the effects of artificial aids or medical treatment should be disregarded. This particular point is important in considering conditions that might, with treatment, have relatively little effect on day to day activities, but which are nevertheless covered by the Act, for example, diabetes mellitus and epilepsy.
Those who suffer from a progressive condition, for example multiple sclerosis, muscular dystrophy or a malignancy are classified as disabled as soon as they begin to experience symptoms, even though their condition is not yet severe enough to be defined as a disability by the functional criteria. Those who are HIV positive would only be classified as disabled with the onset of effects from HIV related illness.
The Act protects those who were disabled in the past, but have now recovered. This will be especially important in cases of mental illness. Such people have been subjected to discrimination by employers in the past and this provision of the Act is seen as very important.
For an impairment to affect day to day activities, it must affect one or more of the following categories:
Individuals need only be functionally impaired in one of these categories to be considered disabled
People who were previously registered under the Disabled Persons (Employment) Act 1944, both on the 12 January 1995 and 2 December 1996 will be treated as being disabled under the Act for a period of 3 years from the 2 December 1996. Following this they will continue to be covered by the Act as disabled people, provided they meet its definition of disability. They will also be covered as people who have had a disability.
It is important to note that the registration scheme for disabled people has been discontinued and employers will no longer have to maintain records to show they employ a quota of disabled people. Vacancies for car park and passenger lift attendants will no longer be reserved for disabled people.
There are some important exclusions from the coverage of the Act. These include:
People with severe disfigurements are covered by the Act unless this is as a result of a tattoo which has not been removed, or non-medical body piercing.
The Act covers other areas of potential discrimination for disabled people which may be relevant to occupational physicians. These include: new duties placed upon the providers of goods, facilities and services; requirements on schools, colleges and universities to provide more information about how they will facilitate disabled pupils and students; new powers for government to make taxis, coaches, buses and trains more accessible and safer for disabled people and responsibilities on people letting or selling land or property to disabled people.
An employer who has unlawfully discriminated may be ordered to pay compensation by an industrial tribunal. There is no requirement for a minimum period of employment before an individual is eligible to make a claim of unlawful discrimination and there is no upper limit on the amount of compensation which may be awarded.
More detailed guidance on the provisions of the Act and its interpretation is contained in the Code of Practice (4) and other publications (5, 6, 7).
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