Advice on Disability Discrimination Law
Please note that this is not a definitive guide to the law. In individual cases, further advice should be sought from UCU.
Discrimination on the grounds of disability is unlawful under the Disability Discrimination Act 1995 (DDA), which covers employment, education, goods and services, and premises.
The Disability Equality Duty (DED) is a new legal duty, introduced by the Disability Discrimination Act 2005, which means that every public body (including colleges and universities) will need to look actively at ways of promoting disability equality and eliminating discrimination and harassment. Such bodies are required to set out their plans in a Disability Equality Scheme, which must be publicly available. More information is available at www.ucu.org.uk/media/pdf/0/t/ded_guidance_1.pdf
- All employers have to comply with the DDA, irrespective of number of employees.
- There is no justification for direct discrimination, that is, for treating someone less favourably because of their disability.
- There is no justification for failing to make a reasonable adjustment.
- All college and university buildings should have been made fully physically accessible from 2005.
- Harassment is explicitly recognised as a distinct form of discrimination and is unlawful.
- The burden of proof in disability discrimination cases is now the same as for sex discrimination, i.e. if a case is made against an institution, it is for the institution to prove that discrimination did not occur.
If a member is disabled or has had a disability the DDA makes it unlawful for an employer to discriminate against him/her when he/she is applying for a job or is already in employment. This includes:
- application forms
- interview arrangements
- proficiency tests
- job offers
- terms of employment
- promotion, transfer or training opportunities
- dismissal (including the end of a fixed term contract) or redundancy.
It is important to be aware that a disability may not always be obvious to other people. There is no automatic link between ill health and disability. Like non-disabled people, disabled people may be healthy or ill. There is no reason for disabled staff to have more (or fewer) accidents than others, if the adjustments for safe working are made. Much of what is useful for disabled staff is also valuable for non-disabled colleagues. Many disabled people do not have any additional access requirements. For those who do require additional support, government grants are available through the Access to Work scheme (more information on this scheme is below).
A disabled person is defined in the DDA as: ‘someone who has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities’.
This is likely to cover:
- sensory impairments
- physical impairments
- mental health difficulties
- learning difficulties, including specific learning difficulties such as dyslexia, dyspraxia and dyscalculia
- impairments controlled by medication or prosthesis
- hearing loss, even if a hearing aid is used
- recurrent conditions – (even if an impairment ceases to have a substantial effect, it is treated as continuing to have that effect if it is likely to recur)
- progressive conditions.
In addition, people who are registered blind are automatically covered, as are people with severe disfigurements, and people with HIV, cancer and multiple sclerosis are covered from the point of diagnosis.
The Jobcentre Plus’s Access to Work scheme provides practical support to disabled people in paid employment, or seeking to enter paid employment, to help overcome work-related obstacles caused by disability. Access to Work is open to employed, unemployed and self-employed disabled people. It provides a grant towards additional employment costs resulting from disability. The scheme can help in a number of ways, for example:
- Special aids and equipment
- Communicator support at a job interview
- Adaptation to premises or existing equipment
- Help with fares to work
- Support worker (e.g. personal reader, carer, driver, job coach, communicator)
It also provides specialist help and advice to employers, including recruiting disabled people and retaining employees who become disabled. More information can be found on the Access to Work website:
It is up to the employee whether he or she chooses to tell their employer about any disability. However, if their disability affects their way of working, they are advised to talk to their employer and colleagues if they want a reasonable adjustment to be considered.
Examples of adjustments:
- making adjustments to premises
- allocating some of a person’s work to someone else
- transferring someone to another post or another place of work
- flexibility about working hours – allowing someone to have different core working hours and to be away from the office for rehabilitation, assessment or treatment
- providing training
- using modified equipment
- making instructions and manuals more accessible
- using a reader or interpreter
- place of work (e.g. working from home).
In considering whether an adjustment would be reasonable or not, the employer will need to consider:
- How effective it will be?
- Will it mean that the person’s disability is a little less of a disadvantage or will it greatly improve the output of a disabled person?
- Will it cause much disruption?
- Will it help others in the workplace?
- Will it help other people with similar disabilities?
- Will the cost be a problem?
If considering making a request for an adjustment remind the employer of the following:
- the investment which has been made in the staff member, such as training, how long he/she has worked there, his/her knowledge and skills
- the staff member’s relationship with colleagues and students
- the cost of salary compared to the likely cost of an adjustment
- how effective a particular adjustment would be in helping the staff member
- how a particular adjustment could help future disabled employees without any additional expenditure (e.g. access for wheelchair users)
- the cost of an adjustment and extent of any disruption it might cause
- what financial and other resources are available to the employer to help make an adjustment (tribunals will have higher expectations of large employers like universities).
Ultimately, if someone were to complain under the DDA, an employment tribunal would decide whether any adjustment was a reasonable one for the employer to make. It would also be up to the tribunal to decide if an employer’s treatment of a staff member was justified or not.
There are a number of questions to be asked when establishing whether an employer has unlawfully discriminated against a person defined as disabled within the terms of the DDA:
- Is the person disabled according to the definition of the Act?
- Has the employer directly discriminated against the disabled person?
- Has there been any less favourable treatment which relates to the person’s disability and which the employer cannot justify?
- Has the employer made a serious effort to identify a range of possible adjustments, using expert advice if necessary, and implemented those which are reasonable?
- Has the disabled person been subject to victimisation or harassment?
- Has the employer met its obligations under the Disability Equality Duty?
If a staff member believes that the employer has treated him/her less favourably or if the employer has not made reasonable adjustments, the staff member may consider further action. This action might include:
- Having an informal discussion with the employer about the staff member’s needs and reminding the employer about anything that is felt relevant in the DDA
- Making a complaint through the institution’s grievance procedure
- Following the ‘questions procedure’ and/or make a complaint to an employment tribunal. The questions procedure enables an employee to ask their employer questions aimed at finding out whether and why he or she has been treated in a discriminatory way. An employer is not obliged to reply, but if the employer fails to reply within a reasonable time or gives an evasive answer or ambiguous reply, this may be taken into account by a tribunal. For the DL56 questions procedure form, see www.equalityhumanrights.com/en/foradvisers/usingyourrights/pages/resources.aspx
- Bear in mind that there are time limits for using the questions procedure or complaining to an employment tribunal which DO NOT take into account the time involved in following internal procedures
There is more information available from the Equality section of the UCU website at www.ucu.org.uk/index.cfm?articleid=1868, including a regular newsletter - Equality News. Specific guidance for branch officers can be found in the Equality Resource Centre in the UCU Activists section of the website at www.ucu.org.uk/index.cfm?articleid=2131.
Members with concerns about a disability equality issue should contact their UCU branch/local association (LA) equality officer. If you don't know how to contact any local UCU representative, ask your regional office – contact details are on the website at www.ucu.org.uk/index.cfm?articleid=2057. The regional office finder at www.ucu.org.uk/index.cfm?articleid=2229 will tell you the relevant regional office for your institution.
UCU’s Equality Unit has an equality officer with special responsibility for disability equality, who can provide advice and support for branch/LA officers and members where necessary. See the Equality Unit page on the website at www.ucu.org.uk/index.cfm?articleid=1940 for contact information.
Equality and Human Rights Commission www.equalityhumanrights.com
EHRC Helpline Wales
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Cardiff CF10 5BT
0845 604 8810 - Wales main number
0845 604 8820 - Wales textphone
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ACAS Equality page www.acas.org.uk/index.aspx?articleid=1363
Equality Challenge Unit www.ecu.ac.uk