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Disability discrimination

redarrow Return to the main Disability Discrimination Section
redarrow Who is a disabled person for the purpose of the Disability Discrimination Act?
redarrow Duty to provide reasonable adjustments

Duty to provide reasonable adjustments

The Disability Discrimination Act 1995 Section 6 and Section 16 impose a duty on the employer to provide reasonable adjustments. The initial duty imposed on the employer is to make reasonable adjustments to working practices, premises type of work done etc to ensure that the employee is not disadvantaged by the systems working practices or physical features of the premises.

Reasonable adjustments apply to :-
a) Any arrangements made by or on behalf of the employee;
b) Any physical feature of premises occupied by the employee;
c) Any requirement applied to interviews for job applicants and also Terms and Conditions of employment for the employee.

At the beginning of this web page I promised not to deal too much with the intrinsic technicalities of the law and we have made every effort to try to explain in the simplest possible terms what the law is. However, determining arrangements under the Disability Discrimination Act, I feel it necessary to refer to case law. The case I am going to refer to is Jones –v- The Post Office which is a Court of Appeal case in 2001.

example

Mr Jones was a postal worker on a rural delivery round. As part of his job he was required to drive a post van. He was diagnosed with diabetes which needed to be controlled through diet and tablets. He had a heart attack and his treatment was changed to cover insulin. It was the Post Office policy to require him to cease all driving duties if he was on insulin. In the subsequent ruling at the Court of Appeal, the Judges said that all the Tribunal have to do is find themselves in considering whether the reason given for the less favourable treatment can properly be described as both material to the circumstances of the particular case and substantial.

The Court then provided a test for the Tribunal’s to adopt in making this determination:

  • First of all, identify what the employee’s disability is.
  • Secondly, what was the discrimination by the employer’s disability.
  • Thirdly, what was the employers reason for treating the employee in this way and is there a sufficient connection between the employer’s reason for the discrimination and the circumstances of the particular case.
  • Lastly, is that reason on examination, a substantial reason.

This basically means that the Act itself recognises that there are certain circumstances where discrimination can be justified. For discrimination to be justified, it must be both material to the circumstances of that case and substantial.

I give an example from my own direct knowledge.
The facts of this case have been changed to protect the guilty.

example

A factory employed a Secretary for 15 years. The last 5 of those 15 years the Secretary was diagnosed with rheumatoid arthritis. Because of the condition, the Secretary’s output and typing ability was substantively reduced. There were no alternative jobs available for her to move to. She wished to continue as long as she could typing and doing basic Secretarial work but her condition was having a substantial affect on her ability to type quickly and accurately. The employer in this case obtained a medical report from a doctor and he stated she would be able to continue her Secretarial role not in a full time capacity but in a part time capacity but not at the standard that the Company had set for Secretaries of 45 words per minute. The Company dismissed the Secretary on the grounds that although she was disabled and they accepted the fact she was disabled, they were justified in dismissing her because failure to be able to do a job was both material to the case and substantial.

What do you think?

On the one side you can see that the employer pays her to be a Secretary and pays her to be able to type at 45 words per minute full time. The Act required them to actively consider reasonable adjustments to prevent her being disadvantaged. At first sight, relying on the doctor’s report clearly she could not type at 45 words per minute anymore and she could no longer work full time. Therefore, they felt they were justified in dismissing her.

The reality of the situation is they were under the duty to actively consider reasonable adjustments. One of the reasonable adjustments was to consider whether she could type quicker working part time so that they were paying her less because she was only part time, she was reasonably productive working part time and that together with help such as providing a key board with larger keys, voice activated recognition for standard typing or an adaptation to her role so that she had to do less typing and could do other duties that required her to be less dextrous was available to her.

The problem they faced at the Tribunal was they did not set their mind to it. They did not consider whether other adjustments could allow her to cope before deciding that they were right to dismiss her on the grounds of capability so they were unsuccessful in defending the claim at the Employment Tribunal.

If they had considered these possibilities and they were impractical for substantial reasons, then they would have been justified in dismissing her, simply to jump straight to justification is not normally enough, they have to actively go through the process of thinking firstly are there any reasonable adjustments that can prevent her disadvantage? If there are no reasonable adjustments to prevent her substantial disadvantage, then are we justified in dismissing. That is the correct process to adopt.

Types of common adjustment include;

  • a change of hours
  • a reduction in hours
  • allowing person say with dyslexia to use a lap top or use a Dictaphone as opposed to putting everything in writing
  • allowing specialist equipment for people who suffer back problems
  • fire alarm systems that can be adapted to flash light as well as make a noise for someone who is hard of hearing
  • providing a pager for the person who is hard of hearing to enable them to communicate and be advised of any situations.
  • providing wheelchair access for someone who is a wheelchair user.

What most employers do not realise is that there are significant grants available through Access to Work, that there are disability advisors freely available through the Local Job Centres and that they can get free advice about adjustments to potentially disabled people.

In conclusion, this general guidance note on disability discrimination is just a general guidance. There are great many complexities within the Act itself and you should always seek proper legal advice about these issues.

As a general ethos however, it is true to say that the large majority of the working population at some point or other, could become disabled for the purposes of the Disability Discrimination Act and that the purpose of the Act is wholly sensible in requiring employers to actively consider ways to allow people to remain in employment rather than simply discarding them because of a health problem. It also encourages those people who are disabled and cannot get work and helps them back into the workforce.

Disability discrimination would include also situations where unfortunately, people are bullied because of their physical or mental impairment. We are aware of many offensive remarks that people make poking fun at people with disability and such words have been held to amount to disability discrimination by an individual.

 


IAMBEINGFIRED Disclaimer
The site author/owner has endeavoured to give clear information to benefit the reader. The information is no substitute for obtaining specific advice about any claim you may have from a person qualified to give it. The examples, and circumstances described etc bear no relation to any actual case and any resemblance to real circumstances is purely accidental and unintentional. The site author/owner accepts no liability for any mistake, error or inconsistency in the text and the reader should ALWAYS OBTAIN specific advice about his/her own situation. In order to assist the reader, you can give your details so that a qualified advisor can call you free of charge and assist you further via CLAIM EVALUATOR