The Disability Discrimination Act in the UK - Case Study Example

Employment Protection Provisions of the Disability Discrimination Act The development of the law on disability discrimination since the enactment of the Disability Discrimination Act (DDA) 1995 has resulted in a complex framework of protection afforded disabled individuals in the area of employment. Discrimination against people with disabilities is something that is frowned upon in many parts of the world. There are around 650 million people who have some form of disability in the world today, with 10 million coming from Britain according to Bell and Heitmueller (2009). One in every five of these disabled people is unemployed, although they would want to work. 19% of the working age population in the UK is disabled. 2% of the working population becomes disabled annually in the UK (Martin, 2006). Discrimination against people with disabilities is prohibited in the laws of the UK. The Disability Discrimination Act of 1995 is one of the most important legislations that protect the rights of the disabled in the area of employment, service delivery and housing (The Disability Law Service, 1999). There have been a number of other legislations that have been passed since 1995 to protect the rights of disabled individuals. This paper will focus on the complex framework of protection afforded disabled individuals in employment on the basis of the DDA. The Disability Discrimination Act (1995) The Disability Discrimination Act of 1995 is an Act of Parliament that makes it unlawful for people to discriminate other people due to their disability. This piece of legislation is normally used in relation to transport, education, employment and the delivery of goods and services. DDA is a civil rights law that seeks to ensure that the civil rights of disabled people are not violated. The Disability Discrimination Act defines a disabled person as one who “has a physical or mental impairment which has a substantial and long term adverse effect on the person’s ability to carry out normal day to day activities” (Brading and Curtis, 2000, p8). According to this definition therefore, a physical impairment can include any weakening or adverse change to the body (Bell and Heitmueller, 2009). According to this DDA definition, impairment can include impairments in hearing, sight, learning disabilities, mental illness and dyslexia. There are some severe disfigurements that may count as disability. Other conditions that are legally considered as a disability include cancer, multiple sclerosis and HIV-AIDS. However, these conditions have to be diagnosed first before they can be defined as being a disability (The Disability Law Service, 1999). Holland and Burnett (2008) state that there are five types of discriminations under the Disability Discrimination Act of 1995: 1. the standard case under section 3A (1) 2. the failure under section 3A (2) to take steps to prevent disadvantages 3. direct discrimination under section 3B (1) 4. Victimization under section 55 (p. 155). The DDA 1995 operates under the following principles are based on the following principles (The Disability Law Service, 1999): Less favorable treatment for a reason related to a disabled person’s disability Failure to make a reasonable adjustment These principles are what make this piece of legislation against discrimination different from other similar legislations. It deals with all aspects of disability discrimination and not just direct discrimination (Maharramova, 2001). The Equality and Human Rights Commission is a national human rights body in the UK that is in full support of this legislation. There are other international bodies that support the implementation of the Disabled Discrimination Act (Equality Commission, 2004). The support of these extra legislations has helped the members of the physically disabled community in the UK have a say in employment and service delivery matters (Martin, 2006). The DDA is also in line with the provisions of the UN Convention on the Rights of Persons with Disabilities, which protects the rights of the disabled to equal opportunities. Article 27 of the convention states that any persons with disabilities has the right “to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities” (United Nations Human Rights, 2010, Article 27). Amendments to the DDA The following amendments were made to enhance the provisions in the Disability Discrimination Act of 1995. The Disability Rights Commission Act of 1999 The Special Educational Needs and Disability Act (2001) The Disability Discrimination Act 1995 regulations (2003) The Disability Discrimination Act (2005) The Equality Act of 2006 The Disability Rights Commission Act (1999) was passed to pave way for the Disability Rights Commission which replaced the National Disability Council. The Special Educational Needs and Disability Act enhanced the anti discrimination laws contained in the DDA, 1995 in educational establishments. The Disability Discrimination Amendment Regulation of 2003 amended the DDA 1995 so that it would be in line with the European Union employment directive. The Disability Discrimination Act of 2005 improved the provisions of the DDA 1995 to include public transport and public authorities. The Equality Act of 2006 made provision for the creation of the Commission for Equality and Human Rights in place of the Disability rights Commission (Martin, 2006). Justification of Disability Discrimination The Disability Discrimination Act of 1995 allows for discrimination in certain circumstances. In the case of employment, the employer has to give sufficient reason with evidence in relation to an employee’s disability (Martin, 2006). If there is no feasible evidence justifying the discrimination, then any reason given for discrimination is not good enough (The Disability Law Service, 1999). However, this should be used as an excuse to treat the disabled individuals any differently. The Kind of Protection that the DDA has Afforded Disabled Persons in Employment There are three areas that according to the DDA, an employer must not discriminate in. these are: The recruitment and selection procedure Promotion, redundancy or dismissal Change making Recruitment and Selection Procedure When selecting people for employment purposes, no discrimination based on disability should be present. All the stages involved in the recruitment, selection and job offering must be free from disability discrimination (Meenan, 2007). This means that the employer cannot discriminate in how he decides who he hires for the job. All the applications and interviews should be carried out impartially. If there are criteria for eliminating applicants, it should be applied equally to both the disabled and able bodied job seekers (Bell and Heitmueller, 2009). The DDA states that the initial the selection procedure must be based on the needs that are specific to the post, and not on the assumption on the type of person that might best fit the position (Bell and Heitmueller, 2009). That is not all; the employer must also make certain adjustments to the work place or work practice so that the disabled individuals can work comfortably. The adjustment should be reasonable depending on how effective and practical it is. It also depends on the financial implications it will have on the workplace (May and Raske, 2005). According to Scrope and Barnett, some adjustments that might be reasonable for people with mental disabilities include: alteration of the working hours depending on treatment and medication being administered to the affected individual (Scrope and Barnett, 2008). The employer could also allow for reasonable absences for such a person to allow for treatment (Perry, 2004). Although the act does not allow for any kind of discrimination against the disabled people in employment, it does allow for positive discrimination (The Disability Law Service, 1999). Promotion, Dismissal or Redundancy When considering people for promotion, dismissal or redundancy, the employer should not discriminate against the disabled people; this is to say that the disabled workers should not be singled out for promotion, dismissal or redundancy based on their conditions (Public and Commercial Services Union, 2009). All forms of discrimination should be avoided in the employees’ conditions and terms of employment as well as in the transfer, promotion or other benefits by refusing to offer them the available chances (Hurstfield, Meager, Aston and Davies, 1996). Disabled people are also protected by the DDA against unfair dismissals or treatment. The Act however, makes exceptions in cases where it is impossible to offer the mentioned terms of services (Scrope and Barnett, 2008). Making Changes The Disability Discrimination Act requires that employers should make some reasonable adjustments to the work premise if a certain feature will impede the disabled worker from carrying out his duties satisfactorily (Hauritz, Sampford and Blencowe, 1998). The adjustment should be done depending on how effective and practical it is. Carrying out the adjustment is also dependent on the financial capability of the organization to affect the adjustments (Public and Commercial Services Union, 2009). Some adjustments are also dependent on the external assistance that the employer may have in implementing the adjustment (Bell and Heitmueller, 2009). How the DDA Affects Employment of Persons with Disabilities The Disability Discrimination Act has done a lot in pushing for the rights of persons with disability all over the UK. Before the act was passed, there were many cases of discrimination against people with different forms of disabilities (Meenan, 2007). Employment opportunities for such people were very few. Many employers did not want to be burdened by the presence of a person who they thought could not perform as well as other employees (Miles and Peacocke, 2004). However, once the legislation started being implemented, there was a drastic change in the way people viewed the disabled (Public and Commercial Services Union, 2009) The legislation made it possible for the disabled people in UK to access employment that offered the same level of benefits for everyone (Pope and Bambra, 2005). Before DDA came to pass, the disabled used to be frowned upon as some kind of lesser beings (Brading and Curtis, 2000). However, the DDA changed all this and it gave the disabled a new lifeline. Not only could they earn their own living without being discriminated against, they were also able to access services just like everybody else in the UK (May and Raske, 2005). The Disability Discrimination Act has not only opened up better treatment of disabled employees, it has also increased awareness of such people’s rights. There are many initiatives all across the UK that are created to enhance the interests and rights of the disabled members of society, including in the area of employment. As more and more people get to know about the disabled and what they deserve in employment, discrimination cases become very few (Bell and Heitmueller, 2009). In some instances it might be difficult to determine whether or not a case of disability is justified enough to be treated in line with the provisions of the Disability with Discrimination Act. According to McTigue (2007), the case of Vance and Royal Mail plc 2006 is a good example when there seems to be confusion on the treatment of the disabled in employment. In this case, Vance had sued Royal Mail for discrimination based on his disability caused by osteoarthritis. The Employment Appeal Tribunal ruled that: “a person will not be treated as disabled because he is substantially impaired in his ability to carry out an unusual activity even if it is an activity that is normal for him. However, it is not a corollary of that that where a person does not, as part of his daily life, carry out an activity that is normal for others, that he is to be treated as disabled if he would not be able to do it” (p.5) McTigue questions whether this view of the court was based on the DDA. The ruling can be opposed from many points including medical ones. As much as Vance had a condition that made it hard for him to carry out some of his duties, it is debatable whether or not he was disabled enough for him not to have carried on his day to day activities. (McTigue, 2007). Some critiques of the Disability Discrimination Act claim that it is too complex to implement effectively. They give examples of how organizations would have to incur extra costs in the creating special provisions for the needs of the disabled (Meenan, 2007). However, these are baseless fears for the adjustments made for the disabled do not have any negative effect on business (Hurstfield, et. Al., 2006). Conclusion Every citizen of the United Kingdom has the right to work in a conducive environment. The Disabled are not exempt from this right. The Disability Discrimination Act of 1995 opened many avenues for the equal treatment of all workers and job seekers, regardless of their physical disabilities (May and Raske, 2005). The DDA makes it illegal to directly discriminate the disabled or those associated with disabled people. It also makes it illegal to treat people less favorably because of their disability (CIPD, 2009). Not making any reasonable adjustment at the place of work for the comfort of disabled employees is also considered disability discrimination. The Disability Discrimination Act makes it unlawful for employers or workmates to harass their disabled employees or fellow work mates. Victimizing a disabled employee because of taking a legal action against his employer is not allowed in the DDA (Holland and Burnett, 2008). This Act has helped push for the interests of the disabled members of society especially when such interests are related to employment (Maharramova, 2001). This and other legislations have enabled the disabled workers to be at par with their able bodied workmates. Since the passing and implementation of the DDA, a lot of changes can be seen in the work place. The employment gap between the disabled and those who are not has narrowed over the years. More disabled people are now in employment in comparison to the situation a few years ago. However, more needs to be done to ensure that as many people who are disabled in the UK get into employment. The government has done well in the implementation of the Disability Discrimination Act, but there is still room for more of such legislations which are not only meant to protect the interests of the disabled in employment, but also in the delivery of services and in education (Miles and Peacocke, 2004). The disabled seek employment because they want to earn a living that will enable them enjoy the same services as their able bodies counterparts (Hauritz, Sampford and Blencowe, 1998). Therefore, the same kind of non-discriminative treatment in employment should be observed in public service areas. More should also be done about improving the education conditions of the people with disabilities (CIPD, 2009). The learning environments for such people should be conducive enough so that the disabled individuals can gain all the academic knowledge that they need to compete equally with other people in employment and in other areas (Brading and Curtis, 2000). Although a lot of people have complained about the cist of making adjustments to accommodate the needs of the disabled in the work place, there seems to be no concrete reasons why the adjustments should not be made (Hurstfield, et. Al., 2006). In any case, these adjustments do not in any way affect the employment or career development of people with disabilities (Maharramova, 2001). An organization has more to gain if it makes the life of its disabled staff members more comfortable. This is because such employees will feel motivated to perform well in their duties, and this should translate to good returns for the organization. Taking care of the needs of the disabled in employment should be seen as a burden. Rather, it should be seen as a way of promoting equality to all UK citizens (Public and Commercial Services Union, 2009). Living and working in harmony with one another is one of the best ways of reaching prosperity. Employers should not feel obligated to treat their disabled employees fairly; they should it out of their own free will. References Bell, D. and Heitmueller, A. 2009, “The Disability Discrimination Act in the UK: Helping or Hindering Employment Among the Disabled?” Journal of Health Economics, 28(2): p465- 480. Brading, J and Curtis, J. 2000, Disability Discrimination: A practical guide to the new law, Kogan, Page Publishers, London. CIPD. 2009, Disability and Employment, viewed 27, July 2010 Elza Maharramova. 2001, Disability Employment Policies within the Civil Service, viewed 27, July 2010 Equality Commission 2004, Disability Discrimination Act: Your Rights, viewed 27, July 2010 Hauritz, M., Sampford, C. and Blencowe, S. 1998, Justice for People with Disabilities, Federation Press, Washington. Holland, J. and Burnett, S. 2008, Employment Law 2008, Oxford University Press, Oxford. Hurstfield, J., Meager N., Aston J, Davies J, Mann K, Mitchell H., O’Regan S and Sinclair A. 1996, Monitoring the Disability Discrimination Act (DDA) 1995, viewed 27, July 2010 Martin, David, M. 2006, Discrimination Law and Employment Issues, Thorogood Publishing, London. May, Gary, E. and Raske, Martha, B. 2005, Ending Disability Discrimination: strategies for social workers, Pearson Allyn and Bacon, New York. McTigue, Peter. 2007. “Critiquing “disability”: The Disability Discrimination Act’s Interplay with Society”, In-Spire E-Journal, viewed 27, July 2010 Meenan, H. 2007, Equality Law in an Enlarged European Union: understanding the Article 13 directives, Cambridge University Press, London. Miles, S. and Peacocke, B. 2004, Disability Discrimination Act Review- reasonably effective but still some room for improvement, Clayton UTZ, 22 October 2004, viewed 27, July 2010 Numhauser-Henning, A. 2001, Legal Perspectives on Equal Treatment and Non-discrimination, Kluwer Law International, Berlin. Perry, P. 2004, Winning with the Disability Discrimination Act, BSI British Standards Institution, London. Pope, D and Bambra, C. 2005, Has the Disability Discrimination Act Closed the Employment Gap?, viewed 27, July 2010 Public and Commercial Services Union. 2009, Employment Protection Under the DDA, viewed 27, July 2010 Scrope, H. and Barnett, D. 2008, Employment Law Handbook, Henry Scrope. The Disability Law Service 1999, Employment Rights Under the Disability Discrimination Act 1995: A Brief Guide for Disabled People, viewed 27, July 2010 United Nations Human Rights. 2010, “Work And Employment”, Convention on the Rights of Persons with Disabilities, viewed 27, July 2010 Read More