Legal briefing: Disability discrimination

This legal briefing gives an outline of the law regarding disability discrimination. It covers the following:

1. Overview
2. Disability Discrimination: General
3. Discrimination and Employment
4. Discrimination in the Provision of Goods and Services
5. The Equality and Human Rights Commission 
6. Further Information

1. Overview

By the 1990s it had become widely recognised that people with disabilities were facing discrimination. However, there was no legislation protecting their rights as there was for race and sex discrimination. Disabled people began a vigorous campaign for anti-discrimination legislation. Their voices were strengthened and inspired by the comprehensive legislation set out in the Americans with Disabilities Act 1990. The cause was given even greater impetus after several Commonwealth countries passed legislation addressing the rights of disabled people.

Backbench Members of Parliament introduced various private members Bills but due to lack of support from the front benches the Bills did not progress, although there was cross-party approval. In 1993-1994 a Civil Rights Bill went through the Committee stage of the House of Commons, and for the first time there was hope that there would be anti-discrimination legislation on the statute books. The Bill was defeated at Report stage by procedural means in 1994. Instead the Conservative Government introduced its own Disability Discrimination Bill which was passed in 1995 and came generally into force in December 1996.

On the Third Reading of the Disability Discrimination Bill in the House of Commons on 28 March 1995 the then Minister for Social Security and Disabled People, William Hague, claimed:

"It is a landmark Bill. It is the only comprehensive Bill for disabled people ever introduced by a British Government. It will mark the United Kingdom out as one of the world leaders and the leader in Europe in the move towards comprehensive anti-discrimination legislation for disabled people. It is a profound measure with significant implications for every part of the economy". [1]

The Disability Discrimination Act 1995 came into force on 2 December 1996. Disability rights campaigners have argued that the Act is flawed and inadequate in scope. In 1999 the Disability Rights Task Force recommended numerous changes and some of these recommendations have recently been implemented.

2. Disability Discrimination: General

The Disability Discrimination Act 1995 (DDA) makes it unlawful to discriminate against those with a disability when providing services and for most employers when providing employment. A person with a "disability" is defined in the DDA as someone with a physical or mental impairment which has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities.

The definition includes any impairment resulting from or consisting of a mental illness. By virtue of the Disability Discrimination Act 2005 (effective from December 2005), there is no longer any requirement for the illness to be "clinically well-recognised". Conditions that are therefore not regularly diagnosed by a doctor may now be covered as well as the more well known illnesses such as anxiety, depression, bipolar disorder and schizophrenia. (Other mental disorders and conditions appearing in the standard diagnostic reference books known as ICD-10 or DSM-IV will also be included).

To obtain protection under the DDA a person has to demonstrate that their impairment lasted for at least 12 months, is likely to last for at least that period, is likely to last for the rest of the person’s life or is recurrent.

This provision has been criticised but has not been changed.

A person also has to show that their "impairment" has a substantial effect on particular activities. These activities are as follows:

• mobility
• manual dexterity
• physical co-ordination
• continence
• ability to lift, carry or otherwise move everyday objects
• speech, hearing or eyesight
• memory or ability to concentrate, learn or understand
• perception of the risk of physical danger

If a person is being treated with medication to control or alleviate their impairment then the DDA specifically disregards this and the person is still treated as being disabled for the purposes of the DDA. The list of "day-to-day activities" has been criticised as favouring physical, rather than mental, disabilities. The Guidance notes have been revised (with effect from May 2006) in an attempt to rectify the situation.

The DDA also applies to persons who have a history of disability. For example, if a person suffered from an impairment some years ago and this is now being used to discriminate against them then they will have protection under the DDA. They do however, have to have met the criteria for a "disability" (set out above) during the period that they suffered with the particular impairment.

It is currently unclear whether under English law it is unlawful to discriminate against a person on the grounds that he or she is associated with a disabled person, for example where a carer needs to take time off work to look after a disabled person. However, in January 2008, the Advocate General of the European Court of Justice gave his opinion that the European Directive does cover discrimination by association. [2] The case has not yet been heard by the Court but the Court usually follows the Advocate General’s opinion.

3. Discrimination and Employment

The DDA applies to most employers in the United Kingdom regardless of the number of employees. It also covers contract workers, office holders and business partners. A disabled person can be discriminated against in the recruitment process, during employment, if they are selected for redundancy due to their disability or even if their contract is terminated.

Volunteers are not generally covered, but can be if they receive a fee (not simply reclaiming expenses) or other employment benefits such as training.

An employer is deemed to discriminate against a disabled person if he/she:

1. treats that person less favourably than he/she would treat others to whom the reason does not or would not apply and
2. cannot show that the treatment was justified;
   or
3. fails to comply with a duty of reasonable adjustment imposed on him/ her by the DDA.

Less favourable treatment of a disabled person will only be justified if the reason for it is both material (i.e. relevant) to the circumstances of the particular case and substantial (not trivial). Less favourable treatment cannot be justified if it amounts to direct discrimination. A person directly discriminates against a disabled person if he/she treats the disabled person less favourably than he/she treats a person not having that disability whose circumstances, including his/her abilities, are the same as, or not materially different from, those of the disabled person.

The Code of Practice relating to Employment (DfEE, 1996) says that less favourable treatment will be justified if the disabled person cannot do the job concerned, and no adjustment which would enable the person to do the job (or another vacant job) is practicable.

Reasonable adjustments in employment

An employer has to take reasonable steps to help an employee overcome the effect of his or her disability. These may include:

• making adjustments to premises;
• altering an employee’s working hours;
• allowing an employee to be absent during working hours for rehabilitation, assessment or treatment;
• providing supervision;
• acquiring or modifying equipment;
• allocating some of an employee’s duties to another colleague;
• transferring him to fill an existing vacancy.

However, the employer must consider any reasonable adjustments that the employee proposes, for example allowing additional leave. What is reasonable will be judged according to the following factors:

• The extent to which the adjustment will prevent the problem;
• The extent to which it is practicable for the employer to make it;
• The financial and other costs, and the disruption it would cause to any of the employer’s activities;
• The extent of the employer’s financial & other resources; and
• The availability to the employer of financial or other assistance (e.g. grants) to make the proposed adjustment.

By virtue of the Disability Discrimination Act 1995 (Amendment) Regulations 2003, an employer can no longer justify a failure to make reasonable adjustments. These regulations also make it unlawful for an employer to subject a disabled employee to harassment. Harassment includes any unwanted conduct which is degrading, intimidating or humiliating.

Remedies for discrimination: employment

If you believe you have been discriminated against by your employer you can take your case to an Employment Tribunal. If the tribunal agrees it can award you compensation for the injury to your feelings etc, as well as for loss of earnings and other expenses. There is no upper limit on compensation awards under the DDA.

Making an application

The application must be made to your nearest Employment Tribunal on the proper form (ET1). You may be entitled to make another employment claim at the same time, for example unfair dismissal or sex discrimination, if appropriate. Details of your nearest tribunal will be listed in the telephone book. The tribunal will want you to use their questionnaire to clarify with your employer what is agreed and disputed, before you make your application (if you have time).

Any application to the tribunal must be made within three months of the alleged discrimination. The tribunal may consider an application out of time if in all the circumstances of the case it is just and equitable to do so. However, you must have strong reasons for making a late claim (especially if they arise from the effects of the disability itself).

Publicly funded ("legal aid") assistance can be available to allow an employment specialist solicitor to prepare your case, if you qualify financially. Solicitors specialising in employment law who can take publicly funded cases appear in the Community Legal Advice directory, available in local libraries and Citizens Advice Bureaux, and on the CLA website: www.clsdirect.org.uk. However, publicly funded representation is not available at any hearing. Solicitors will occasionally consider a "conditional fee agreement", often known as "no win, no fee", if you have a strong case but cannot afford to pay privately.

You may be able to obtain free legal advice in the following ways:

1. Contact your trade union, if you are a member.
2. Check if you have an insurance policy (for example, home contents) which includes legal expenses cover. Not all policies will cover employment legal advice, but a surprising number do.
3. Find out if there is a local Law Centre with an employment or disability adviser. Law centres tend to be located in major towns and will be listed in the telephone directory, or call the Law Centres Federation on 020 7387 8570, or visit www.lawcentres.org.uk.
4. Many towns have a disability advice centre, which is part of the DIAL network. They should be listed in the telephone directory, or you can contact DIALUK on 01302 310123, or visit www.dialuk.info.
5. Many Citizens Advice Bureaux give employment advice. Most towns have a CAB. They will be listed in the telephone directory, or you can contact the National Association of CABx on 020 7833 2181 or visit their website at www.nacab.org.uk.

4. Discrimination in the provision of Goods or Services

Part III of the DDA says that service providers of any size who are based in the United Kingdom must not treat a disabled person less favourably than others to whom they provide the same service unless this can be justified. This applies to the following:

• Refusing to provide, or deliberately not providing, to a disabled person a service which is provided to members of the public;
• Failing to comply with the duty of "reasonable adjustments" (see below) so that it is impossible, or unreasonably difficult, for the disabled person to use the service;
• Providing a different standard of service to the disabled person; or
• Providing a service to a disabled person on different terms from other members of the public.

Reasonable adjustments in provision of goods and services

Service providers discriminate if they fail to make "reasonable adjustments" to their policies, practices or procedures so as to make the service more accessible to disabled people. This is a general duty, i.e. service providers should make adjustments now, rather than waiting until someone with a particular disability tries to use the service. It is also a continuing duty: an adjustment which appears reasonable at one time may be regarded as inadequate a couple of years later.

What is "reasonable" is judged similarly to reasonable adjustments in the field of employment (see above), though more detailed guidance is given in the 1999 Code of Practice. Specific provisions appear in the Disability Discrimination (Services and Premises) Regulations 1996. As from 2004, service providers are required to carry out physical adaptations to premises to allow easier access if this is reasonable. Otherwise, service providers have to provide an alternative means of access unless they can justify not doing so.

Defences

A service provider can justify less favourable treatment if he or she believes, with good reasons, that:

1. The treatment is necessary so as not to endanger the health or safety of any person, including the disabled person;
2. The disabled person lacks capacity to enter into an enforceable agreement or give informed consent to the service;
3. Refusing the service to the disabled person is necessary to enable the service to be provided at all (e.g. a short guided tour might become impossible if one participant had severe mobility problems);
4. A lower standard of service, or less favourable terms, are necessary in order to allow the service to be provided at all; or
5. The different terms of the service reflects the greater cost of providing an individual service to a disabled person. (But disabled people may not be charged for general disability adjustments.)

Discrimination in Education

As enacted the DDA did not apply to the provision of education to pupils at schools or students at colleges or universities. However, the Special Educational Needs and Disability Act 2001 (SENDA) extends the provisions of the DDA to this area. The Act is extensive and places new responsibilities on local authorities, nurseries, schools, universities and colleges to ensure that disabled pupils and students are not treated less favourably than others as a result of their disability. The Act imposes a duty to make reasonable adjustments so that disabled pupils and students are not put at a substantial disadvantage compared to others. In the case of universities and colleges, less favourable treatment can be justified if it is necessary to maintain academic standards.

The disability discrimination provisions of the Act relating to less favourable treatment and reasonable adjustments came into force with effect from September 2002. There is, however, no requirement for schools to provide auxiliary aids and services or alter premises in respect of their duty to make reasonable adjustments. However, universities and colleges were required to provide auxiliary aids and services, where appropriate, with effect from September 2003 and with effect from September 2005 need to consider altering premises.

Schools have a duty to prepare accessibility strategies and plans to increase the extent to which disabled pupils can participate in schools and access premises.

Complaints under SENDA relating to schools are heard by special education tribunals. Complaints relating to colleges and universities are heard in the County Court. The time limit for bringing a claim is six months from the date of the alleged discrimination. Publicly funded assistance and representation may be available depending on the circumstances (see below).

The DDA continues to apply to education authorities, schools and colleges in their roles as employers.

Private Clubs

Private clubs whose membership was subject to a proper selection procedure were exempt from the provisions of the DDA. However, by virtue of the 2005 Act, private clubs with more than 25 members are now subject to the same provisions as any other service provider.

Discrimination over Transport

The use of transport is generally exempt from the Goods and Services provisions under Part lll of the DDA (though discrimination by transport providers in stations etc, for example treatment by staff in ticket offices, is covered under Part III).

Part V of the DDA contains specific provisions for taxis, public service vehicles and railways. However, no definitive date has been given when these provisions will come into force.

Insurance – special provisions

Insurance comes within the Goods and Services provisions in Part lll of the DDA. There is a need for insurers to be allowed to distinguish between individuals when they are carrying out their "risk assessment". However, it is up to the insurer to prove that there is an additional risk associated with a disabled person arising from their disability. The DDA Code of Practice states that blanket assumptions should be avoided. The Association of British Insurers has issued its own Guide to the DDA for Life and Disability Insurers, which makes the same point. [3]

An insurer should not adopt a policy or practice of generally refusing to insure disabled people, or people with particular disabilities. Regulations set out the circumstances in which less favourable treatment by an insurer when providing services will be justified.

All the following conditions must be satisfied:

• it is in connection with insurance business carried on by the service provider;
• it is based on information which is relevant to assessment of the risk to be insured, for example, a medical diagnosis;
• the information is from a source on which it is reasonable to rely, a medical report from the individual’s GP or consultant;
• the less favourable treatment is reasonable having regard to the information relied on and any other factors (e.g. the applicant’s medical history).

Example: A person with a diagnosis of manic depression applies for motor insurance. He is told that he will have to pay double the normal premium because of his condition. The insurer is relying on actuarial data relating to the risks posed by a person driving when in a manic episode. However, the applicant produces credible evidence that he has been stable on medication for some years and has an unblemished driving record. In the circumstances, the charging of a higher premium in this case is unlikely to be justified because not all of the conditions above have been fully satisfied.

However, if in the circumstances a motor insurer can show that a decision taken to charge a higher premium is based on sound and reliable statistical data, the insurer may be able to justify the higher premium.

Remedies for Discrimination by Service Providers (Part lll)

The Disability Access Rights Advice Service has suggested a 5 step approach to discovering whether there has been unlawful discrimination under the DDA in the provision of goods and services. This is set out below for information purposes.

1. Does the service user meet the Act’s definition of disability?
2. Is the service excluded from the Act?
3. Has the disabled person received less favourable treatment for a reason related to that person’s disability?
4. Can the service provider justify the treatment?
5. Resolving the problem.

If you feel that you have been discriminated against for a reason related to your disability, you have the right to make an application to a County Court to seek damages for your distress and any loss. An application should be made to the Court within six months of the alleged act of discrimination. The Court will consider a claim out of time if in all the circumstances of the case it is just and equitable to do so.

Publicly funded assistance may be available from solicitors qualified to advise on consumer claims, depending on your financial position. Publicly funded representation might be available for a very high-value claim. However, unless the claim is for more than £5000 it will be treated as a small claim for which publicly funded representation is unavailable. Some solicitors may consider a conditional fee agreement ("no win, no fee") if the claim is a very strong one, but this is unusual. (Not surprisingly, very few claims are brought under Part III of the Act.)

You may be able to obtain free legal advice from the agencies described above, although this will depend upon whether they feel able to advise on consumer matters.

5. The Equality and Human Rights Commission

The Equality and Human Rights Commission (EHRC) was established in October 2007. It brings together the Disability Rights Commission (which was established in April 2000), the Commission for Racial Equality and the Equal Opportunities Commission. The EHRC gives information and advice about the DDA to the public and to service providers, including useful leaflets. It does not provide general legal representation, though occasionally it will take up a case of discrimination which has significance for many other people.

The EHRC operates a public helpline which is open Monday to Friday between 9am and 5pm (8pm on Wednesdays) or you can write to them. The contact details are:

EHRC
Freepost Mid 02164
Stratford-on-Avon
CV37 9BR

Telephone: 08457 622 633
Textphone: 08457 622 644
Fax: 08457 778 878
Email: info@equalityhumanrights.com
Website: www.equalityhumanrights.com

6. Further Information

This legal briefing relates only to the law of England and Wales in force at the time of writing. It is a brief outline of the law and is not a substitute for detailed advice.

For further information about the work of Mind's legal unit, please refer to our information sheet, Introduction to the Legal Unit. This is also available in hard copy (T: 020 8519 2122).

For more detailed advice on any of the issues discussed in this briefing you should take advice from a solicitor specialising in this area of the law. Details of where to seek specialist advice can be obtained from the Law Society (www.lawsociety.org.uk, telephone 0870 606 2555) or from Community Legal Advice (www.communitylegaladvice.org.uk, telephone 0845 345 4345). Alternatively, you could contact your local Law Centre or Citizens Advice Bureau, who may be able to help.

Michael Konstam

Legal Unit
Mind
Granta House
15-19 Broadway
London E15 4BQ

May 2008

Notes
[1] HC Deb, vol 257, col 904. Quoted in Disability Discrimination Law and Practice by Brian J Doyle: 2^nd Edition 2001
[2] Coleman v Attridge Law (Case Number C-303/06 31 January 2008)
[3] A Life and Disability Insurer’s Guide to the Disability Discrimination Act 1995 (published 2001), available from the Association of British Insurers, 51 Gresham Street, London EC2V 7HQ, or at www.abi.org.uk.