Disability discrimination - Can you afford to get it wrong?

From 1 October 2004 significant changes came into force regarding the Disability Discrimination Act (DDA) which have widened the scope of protection for employees. At the same time, case law has developed to introduce positive burdens on employees when looking at reasonable adjustments. The Employment Appeal Tribunal has just upheld what is thought to be the highest award for compensation for injury to feelings in a disability discrimination case, providing a timely reminder of the potential importance of the DDA when operating a business.

One of the main changes to the DDA which came into force on 1 October 2004 was the removal of the small employers exemption. Beverley Ensor, an Employment specialist at Manchester solicitors dent, raven marsdens explains ìprior to 1 October 2004, employers who employed 15 or fewer employees were not bound by the provisions of the DDA, however this exemption has now been completely removed meaning that it no longer matters whether an employee has 1 or 100 employees, they are bound by the DDA.î As Beverley goes on to comment, ìthe extension of the DDA now even includes employees who are employed in a private household, for example nannies, meaning that individuals who employ people in their home are also obliged to comply with the DDA.î

The DDA now contains specific provision for new, additional claims of harassment and victimisation, in a way which mirrors other discrimination legislation.

As for case law developments, employers should bear in mind the House of Lords decision in Archibald v Fife Council which decided that in some situations employers have a positive duty to treat disabled employees more favourably. This obligation arises when in relation to an employerís duty to make reasonable adjustments to accommodate a disabled employee. Beverley comments, ìthis is the only form of discrimination which requires employees to positively discriminate in favour of disabled people. Where an employee becomes disabled for the purposes of the DDA in a way that prevents them from performing their duties their employer is obliged to consider appointing them to some other position that they may be physically able to undertake even if they are not the best candidate for the job.î

So what is the cost of getting it wrong? A recent decision in the Employment Appeal Tribunal has up held what is thought to be the highest award for compensation for disability discrimination. In the case of The Prison Service v Beart an employee was awarded 400,000 for her claim of disability discrimination, Beverley comments ìthis serves as a reminder for employers that awards for injury to feelings arising from any form of prohibited discrimination (sex, sexual orientation, religion, religious belief or disability) are not subject to any limitation. Although this case is clearly of the extreme end of what an employee could expect to recover the fact that Tribunals are prepared to award such sums shows just how seriously discrimination should be taken.î

As for the future of disability discrimination, it is expected that a new Disability Discrimination Bill will be laid before Parliament next year. One of the anticipated amendments is the extension of what constitutes a ìmental impairmentî which currently requires a claimant to overcome the difficulty of showing that the impairment constitutes a clinically well-recognised condition.