Disability Discrimination
Disability Discrimination Act 1995 as amended 2004
At 08/06/05 there has been only one test case concerning a complainant suffering from CH, the case of Hood v London Clubs Management. This is very significant as at both the Employment Tribunal and the higher Employment Appeals Tribunal, it was found throughout that his condition DID constitute a disability under the DDA.
The DDA protects disabled people in:
- employment, access to goods, facilities and services, the management, buying or renting of land or property and education
Some of it became law for employers in December 1996. Others were introduced over time.
For service providers (e.g. businesses and organisations):
- since December 1996 it has been unlawful to treat disabled people less favourably than other people for a reason related to their disability
- since October 1999 they have had to make reasonable adjustments for disabled people, such as providing extra help or making changes to the way they provide their services and since October 2004 they have had to make reasonable adjustments to the physical features of their premises to overcome physical barriers to access.
This means until the test case is overturned by another case concerning a CH sufferer, an employee suffering from CH must be considered in employment law to be disabled and protected by all the provisions of the act. This means that to discipline or dismiss an employee for reasons relating to their condition will be a legal minefield and will have to be very carefully handled with suitable legal advice at each stage. It is also very probable that a dismissal of CH sufferer for reasons relating to their CH would be seen as Unlawful Discrimination by a court.
Below are relevant sections of the Guidance notes for the Act.
What is a disabled person?
A person with "a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities"
What is an impairment? (List edited for CH relevance)
An impairment is to be taken to affect the ability of a person to carry out normal day-to-day activities only if it affects that person in one (or more) of the following respects:
- mobility;
- manual dexterity;
- physical co-ordination;
- speech, hearing or eyesight;
- memory or ability to concentrate, learn or understand;
- (additional - fatigue - see below)
Effects of Treatment
Where an impairment is being treated or corrected the impairment is
to be treated as having the effect it would have without the measures in question
Recurring Effects
If an impairment has had a substantial adverse effect on a person's ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur; that is, it is more likely than not that the effect will recur. Conditions which recur only sporadically or for short periods (e.g. epilepsy) can still qualify.
Effects of Treatment on Reocurrence
If the treatment simply delays or prevents a recurrence, and a recurrence would be likely if the treatment stopped, then the treatment is to be ignored and the effect is to be regarded as likely to recur.
Mobility/Fatigue
The act specifically includes those whose condition or impairment causes pain or fatigue in performing normal day-to-day activities, so the person may have the capacity to do something but suffer pain in doing so; or the impairment might make the activity more than usually fatiguing so that the person might not be able to repeat the task over a sustained period of time.
Absence Recording
If an employee's absence from work is related to their disability, this should now be recorded separately from other sickness absence. It MUST BE DISCOUNTED when individuals are being considered for redundancy selection, promotion or training opportunities. Failure to do this will automatically be considered as unlawful discrimination.
Reasonable Adjustments - Almost anything could apply!
Examples for Ch sufferers:
- Flexible hours, Home working, Provision for breaks from work, Provision for 02 use at work
- Adjustments to travel arrangements , Environmental aspects if these are triggers e.g. chemicals
Summary of Legal Position at 12/06/05 ( this may change!)
In addition to all your other statutory rights as an employee:
- Until Case law changes the position, as a CH sufferer you ARE disabled under the DDA
- You are entitled to the provisions defined in Disability Discrimination legislation
- You are entitled to "reasonable adjustments" to assist you to perform your role
- Any absence from work due to your CH should be recorded separately from other absence
- This absence must be disregarded for the purposes of selection for redundancy, promotion or training
- To discipline you for absence related to your CH may constitute unlawful discrimination
- To dismiss you for a reason related to your CH may constitute unlawful discrimination.
- If you are dismissed, in order for the dismissal to be lawful, your employer must show that the dismissal was fully 'justified'. In order to justify such a dismissal, the employer must demonstrate that they could not make reasonable adjustments to your working conditions, hours of work, job duties or place of work or obtain or modify equipment that would allow you to work. The employer will therefore have to make enquiries into these areas to see if any steps can be taken before concluding that a dismissal would be held to be justified.
