Discrimination law has developed significantly since the original race and sex discrimination legislation of the 1960s and 1970s. By the 1990s it had become widely recognised that people with disabilities were facing discrimination. In other countries laws were being passed outlawing disability discrimination; the United States had enacted comprehensive legislation with the Disabilities Act 1990 and several Commonwealth countries had also passed legislation addressing the rights of disabled people. After much campaigning by disability rights organisations, the Disability Discrimination Act 1995 was enacted and came into force on 2 December 1996. This remains the core piece of legislation although it has been significantly amended and extended since that date.
At the time of writing, the Equality Bill is being debated in Parliament. This will bring together all discrimination legislation under one Act, including discrimination on the grounds of race, sex, disability, sexual orientation, religion or belief and age. It is likely that there will also be amendments to the existing law. It is hoped that the Bill will be enacted in the course of the current Parliament (that is by May 2010).
The Disability Discrimination Act 1995 (DDA) as amended 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. Conditions not regularly diagnosed by a doctor (and so not "clinically well-recognised") may now be covered as well as the more well known illnesses such as anxiety, depression, bipolar disorder and schizophrenia. Mental disorders and conditions appearing in the standard diagnostic reference books known as ICD-10 or DSM-IV will certainly 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 or for the rest of the person’s life, or that it is likely to recur. The House of Lords has considered the meaning of the phrase "likely to" and has clarified that it means "could well happen", an easier outcome for a claimant to prove.
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 would, however, need to have met the criteria for a "disability" (set out above) during the period that they suffered with the particular impairment.
A person also has to show that their "impairment" has a substantial effect on particular activities. These activities are as follows:
If a person is being treated with medication to control or alleviate their impairment this could still be a disability for the purposes of the DDA. He or she will need to explain that they "could well" be unable to do things if they were to stop taking medication. The Guidance notes (available in the archives of the DRC website) have been revised (with effect from May 2006) in an attempt to give examples of the way mental disabilities may affect a person's ability to carry out day-to-day activities.
It has now been decided that it is unlawful to discriminate against a person on the grounds of disability where he or she may not be disabled but is associated with a disabled person, for example, where a carer needs to take time off work to look after a disabled child. In 2008, the European Court of Justice (ECJ) decided that the European Directive covers discrimination by association and the Employment Tribunal has recently interpreted the DDA in line with this.[1]
Part II of the DDA applies to 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:
An employer will directly discriminate against a disabled employee if he/she treats the disabled employee less favourably on the grounds of his/her disability, than the employer treats another person who does not have a disability (but who in other ways is in very similar circumstances to the disabled employee). If the disabled employee can show that he or she has been treated less favourably, then the employer has discriminated and cannot try to argue that he/she was justified in doing so. However, it is difficult for an employee to prove that the less favourable treatment was on the grounds of "his or her disability".
A disabled employee was able until recently to argue that he/she was treated less well for a reason "related to" his or her disability and in such cases it was possible for an employer to try to show that any less favourable treatment was justified.
However, the concept of "disability related" discrimination has recently been reviewed in a decision by the House of Lords.[2] The result is that it is now all but impossible to challenge less favourable treatment for a reason related to disability. This leaves only a claim for direct discrimination or a claim that there has been a failure to make reasonable adjustments. It is likely that this situation will be addressed in the Equality Bill.
An employer has to take reasonable steps to help an employee overcome the effect of his or her disability. The employer has to look at anything that may help. These may include:
The employee doesn't need to come up with suggestions, but it will help to do so, and 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:
An employer cannot try to justify a failure to make reasonable adjustments.
It is also unlawful for an employer to subject a disabled employee to harassment. Harassment includes any unwanted conduct which is degrading, intimidating or humiliating.
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, as well as for loss of your income and for the costs and any disadvantage caused by the need to find a new job. There is no upper limit on compensation awards under the DDA.
The application must be made to the Employment Tribunal nearest to your workplace on the proper form (an 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 office will be listed in the telephone book or is available on the website www.employmenttribunals.gov.uk.
It is often advisable to use the form of questionnaire (known as a DL56) to clarify with your employer the issues that you consider amount to discrimination, as a way of identifying if you have a good claim and what is agreed and disputed. You can do this before you make your application (if you have time) or up to 28 days after submitting your ET1.
Any application to an Employment 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, for example, by showing that the effects of the disability stopped you from being able to do so.
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 on publicly funded cases are listed on the Community Legal Advice (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:
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:
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.
A service provider can justify less favourable treatment if he or she believes, with good reasons, that:
Originally, 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) extended 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 in education of the Act relating to less favourable treatment and reasonable adjustments in education can now be found in Part IV of the DDA. These 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. Universities and colleges have been required to provide auxiliary aids and services, where appropriate, with effect from September 2003 and with effect from September 2005 also 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 (or Part IV DDA) 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 applies to education authorities, schools and colleges in their roles as employers.
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.
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 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:
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.
The Disability Access Rights Advice Service has suggested a five-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.
If you feel that you have been discriminated against because of 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.
It is likely to be difficult to win an argument that you have been discriminated against for a reason related to your disability because of a recent decision by the House of Lords referred to in section 3 above [2]. However, you may be able to show that the treatment was directly due to your disability. We expect this position to be improved when the Equality Bill becomes law.
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.
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 public helplines which are open Monday to Friday between 9am and 5pm or you can write to them. The contact details are:
England: Equality and Human Rights Commission Helpline
Freepost RRLL-GHUX-CTRX
Arndale House
Arndale Centre
Manchester
M4 3AQ
Email: englandhelpline@equalityhumanrights.com
England: 0845 604 6610
textphone 0845 604 6620
Wales: Equality and Human Rights Commission Helpline Wales
Freepost RRLR-UEYB-UYZL
3rd Floor
3 Callaghan Square
Cardiff
CF10 5BT
Email: waleshelpline@equalityhumanrights.com
Wales: 0845 604 8810
textphone 0845 604 8820
Website: www.equalityhumanrights.com
Time to Challenge is part of a national campaign called Time to Change. We can provide advice where someone with a mental impairment feels that they have been discriminated against. As with the EHRC, we can only provide representation if a case has significance for many people in similar circumstances. You can find out more about the work we are doing at www.time-to-change.org.uk. You can contact us by email at legalunit@mind.org.uk.
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.
Pauline Dall
Legal Unit
Mind
Granta House
15-19 Broadway
London E15 4BQ
February 2010
[1] Coleman v Attridge Law (ECJ Case Number C-303/06 17 July 2008) / Attridge Law v Coleman [2009] EAT 31/10/09
[2] Lewisham v Malcolm [2008] UKHL 43; CSA v Truman 5 February 2009 EAT
[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.