Stigmatisation and Health Law - Essay Example

of the of the of the Stigmatisation and Health Law The disabled, in the United Kingdom, occupy a significant proportion of the population. Statutes, such as the Disability Discrimination Act 2005, the Disability Rights Commission Act 1999 and the Disability Discrimination Act 1995, are some of the significant acts, whose provisions attempt to curtail discrimination against the disabled. In addition, these pieces of legislation enjoin upon the entities dealing with the disabled to ensure that they accommodate their requirements. Individuals afflicted with neglected ailments, are on occasion subjected to discrimination. Such, persons have to envisage discriminatory policies and practices, on account of their health problems and disabilities. This discrimination can be witnessed amongst people suffering from neglected diseases, such as leprosy, lymphatic filariasis and leishmaniasis 1. These diseases cause physical disabilities and physical deformities to the persons who have been infected with them. Diseases like HIV/ AIDS, cause greater anxiety among the members of society. Consequently, those who suffer from such diseases are stigmatised to a greater extent, in respect of their right to health2. Such individuals are commonly subjected to discriminatory practices at their workplace. Moreover, these people may find it difficult to access education and health care. This situation persists in both the public and private sectors; and women who are afflicted with these neglected diseases are more prone to undergo social discrimination and stigma3. The Disability Discrimination Act 1995 prohibits any sort of discrimination against disabled persons. Under the provisions of the Disability Discrimination Act, discriminatory policies and practices have been deemed to be illegal. This Act prohibits discrimination in employment and promotion opportunities. In addition, employers should not dismiss or subject disabled persons to any disadvantageous situation in the course of their employment. Therefore, employers in the public, as well as the private sector are required to comply with the provisions of the Disability Discrimination Act4. In the UK, apart from the DDA, there are a number of other statutes and regulations that deal with disability. These are the Disability Discrimination (Meaning of Disability) Regulations 1996 (SI 1996/1455), the Disability Rights Commission Act 1999, the Disability Discrimination (Blind and Partially Sighted Persons) Regulations 2003 (SI 2003/ 712), the Disability Discrimination Act 1995 (Amendment) Regulations 2003 (SI 2003/ 1673), the Disability Discrimination Act 2005, the Disability Discrimination (Guidance on the Definition of Disability) Appointed Day Order 2006 (SI 2006/ 1005), the Disability Discrimination Code of Practice (Services, Public Functions, Private Clubs and Premises) (Appointed Day) Order 2006 (SI 2006/1967), and the Disability Discrimination (Public Authorities) (Statutory Duties) (Amendment) Regulations 2008 (SI 2008/641) 5. In addition to these statutes, the courts also invoke additional legislation, depending on the nature of the discrimination, whenever the situation so warrants. For instance, the Protection from Harassment Act 1997 has been invoked, on several occasions, in order to deal with instances of discrimination, which are different from those dealt with by the aforementioned legislation6. In order to determine whether an employer had subjected a disabled employee to discrimination, Section 3A (1) of the Disability Discrimination Act requires two conditions to be fulfilled. First, the employer should treat the disabled employee less favourably than a non – disabled employee. Second, the employer cannot justify the treatment meted out to the disabled employee7. The House of Lords’ decision in London Borough of Lewisham v Malcolm (2008) IRLR 700 HL proved to be a landmark decision in the area of discrimination against people with disability. It served to capsize the perception that had been established by the previous case law, in the context of discrimination against the disabled8. Prior to this decision, discrimination against disabled people was determined, by making a comparison to the treatment accorded to non – disabled people, under the same circumstances. For instance, if a disabled employee failed to attend work, and if the employer dismissed that employee on the basis of absenteeism due to that disability, then such dismissal was to be assumed to be tantamount to discrimination against that disability. The disabled employee, who had absented himself from duty, was compared with an employee who was not absent. Subsequently, the difference in treatment was determined through this comparison. The reasoning adopted was that in the absence of the disability, the disabled employee would have attended work regularly9. This important tenet of discrimination against the disabled was set aside by the decision in Malcolm. With this decision, the comparator test was made inapplicable to cases, in which disabled employees were dismissed and whose disability is not categorised as a disability by the DDA. If the employer can establish that it would have provided the same treatment to a non – disabled person, who was absent for a long time, as a person who was disabled, due to illness; then the employer can escape liability for discriminatory behaviour, if it dismisses a disabled employee on the same grounds10. This situation is not advantageous to disabled persons. The Malcolm decision resulted in this unenviable situation. Employers are required by the Act to bring about reasonable adjustments to their workplace, if their premises cause difficulties to disabled employees. Moreover, employers have to change their policies and practices if these prove to be disadvantageous to the disabled employees. Sections 3A (2) and 4A of the Disability Discrimination Act, specifically lay down the principles, in this context. These concern the employer’s duty to make reasonable adjustments; and it applies to employers, who have knowledge about the disability of their employees11. The Disability Discrimination Act provides examples of reasonable adjustments to be initiated by the employers for their disabled employees. These steps include the altering of working hours to suit the convenience of employees with disabilities; provision of time – off for treatment; distribution of the disabled employee’s duties amongst the other employees; transfer of the disabled employee, if the latter so desires, to another workplace; provision of training to disabled employees; provision of an interpreter, reader or assistant if the disabled employee so requests; modification of equipment for the convenience of the disabled employee; modifications to the workplace; and the provision of support12. With regard to what is reasonable, the Disability Discrimination Act explains that reasonableness can be determined by examining the extent to which the adjustment resolves the problem. It also depends on the practicality of making the arrangement, by the employer. The practicality depends on the cost of the arrangement and the financial resources of the company13. The justifiable discrimination of the employer depends on the reasonableness of the adjustment. Thus, an employer cannot justify its discriminatory policy, by adopting the reasoning that is related to the disability of the employee under the provisions of the Section 3A (1). The employer can justify discrimination after having initiated reasonable adjustment. If the adjustment aims to prevent the emergence of the reason under Section 3A (1), then the employer need not initiate reasonable adjustment; and the discrimination would be justified14. This can be illustrated by the following example. If a job requires the employee to deliver confidential internal documents, the company can refuse to employ an applicant who suffers from mobility restriction. However, this duty can be allotted to some other employee through reasonable adjustment. In this case, if the employer does not reallocate the deliver duty to some other employee, or if the employer fails to make the adjustment of reallocation of the duty, then it can be construed that the employer has discriminated against the disabled employee15. Consequently, the employer can no longer claim justification for refusing to employ the disabled individual. The Disability Discrimination Act 1995 precludes discrimination towards the disabled; in the context of supply of goods, facilities and services, and with regard to premises. Consequently, any entity that supervises some premises is prohibited from acting in a discriminatory manner towards a disabled occupant of these premises, by evicting that occupant or by subjecting that person to some detriment16. There were expectations that this act would help the disabled to procure and continue with their employment. However, there was opposition from some quarters, which claimed that the costs imposed by such legislation would bring about a reduction in the employment rate, instead of increasing it17. The following case law reveals the fact that the rights of the disabled person had been violated by the employer, on several occasions. It was held by the Employment Appeal Tribunal that employment tribunals were empowered to take up claims filed under the Disability Discrimination Act 1995, in the context of association with a person, suffering from a disability. In EBR Attridge Law LLP and another v Coleman (2010) IRLR 10 EAT, Coleman who was the primary carer for her disabled son, brought a claim against her employer, for disability discrimination. Some of the alleged acts of discrimination that she had been subjected to by her employer, included an accusation that she was indolent; refusal to let her continue in the job that she had been working in, prior to availing herself of maternity leave; refusal to grant her flexible working arrangements, as had been granted to some of her colleagues; and the accusation that she was utilising her disabled child to manoeuvre her working conditions18. Being seized with the gravity of the issue, the employment tribunal referred the matter to the European Court of Justice. Specifically, it sought clarification, as to whether discrimination by association came under the ambit of the Framework Employment Directive19. The European Court of Justice clarified that the proscription against direct discrimination and harassment, described in this Directive, was not restricted to disabled individuals. Accordingly, the employment tribunal held that the Disability Discrimination Act 1995 (Amendment) Regulations 2003, aimed to give effect to the Framework Employment Directive. Therefore, the Disability Discrimination Act 1995 was applicable to associative discrimination, which Coleman had alleged20. Consequently, the tribunal permitted Coleman’s claim to proceed to a full hearing. In Clark v Novacold (1999) IRLR 318, Court of Appeal, a very important test relating to disability discrimination had been established. In this case, the applicant’s back was seriously injured at work, and a protracted period of rest had been prescribed by the attending physicians. The employer summarily dismissed the applicant. The Appellate Court directed that the treatment accorded to the employee’s absence had to be compared to that accorded to an employee who was not absent. This served to establish discrimination, and inter alia, provided a very useful test, in respect of disability discrimination. Unfortunately, in London Borough of Lewisham v Malcolm (2008) IRLR 700 HL, the test established in Clark v Novacold (1999) IRLR 318 was rescinded by the House of Lords. During the course of the discussion, in this case, the majority of the Law Lords recommended an analysis that would compare the manner, in which a non – disabled individual, under the same circumstances, would have been treated by the local council, and by extension, by an employer21. The decision in this case, permits employers to dismiss their absent disabled employees; if they can establish that a non – disabled employee, who had been absent for a similar length of time, would have been accorded the same treatment. In Fareham College Corporation v Walters EAT/0396/08, 0076/09, Walters a lecturer in Fareham College, suffered a disability, which compelled her to proceed on leave for a significant period of time. She requested her employer to permit her to effect a phased return to work. However, the college management dismissed her from service, due to her prolonged absence from duty22. The employment tribunal opined that the employer had failed to engender reasonable adjustments; and that in addition, there had been discrimination based on disability. On appeal, the EAT ruled that the employer had failed to make reasonable adjustments. However, it ruled that there had been no discrimination, based on disability23. Thus, it has become onerous to establish disability related discrimination, and this caused great injustice to the disabled. In David Allen (a child by Ceri Allen, his Litigation Friend) v The Royal Bank of Scotland PLC (2009) EWCA Civ 1213, the Appellate Court directed the Royal Bank of Scotland to modify its premises, by installing a lift; and to pay a compensation of £6,500 to David Allen. The latter was disabled to the extent that he was confined to a wheelchair24. The bank had breached the reasonable adjustment duty, enjoined in the Disability Discrimination Act 1995. In Ghaidan v Godin-Mendoza (2004) 2 AC 557 HL, their Lordships had decided that to the extent possible, EU law was to be given effect, whilst interpreting UK legislation. As such, discrimination on the basis of disability was an essential component of the Disability Discrimination Act 199525. In addition, UK legislation, pertaining to discrimination, deems associative discrimination to be illegal. In Manchester City Council v Romano (2005) 1 W.L.R. 2775 the court had referred to instances, wherein it had the discretion to make a possession order. In such instances, if the disabled tenant was able to establish that the landlord had behaved in a discriminatory manner, as defined in the Disability Discrimination Act 1995, then this would constitute an important factor in making a possession order26. Nevertheless, in O’Neill v Symm & Co Ltd (1998) ICR 481, and Hammersmith and Fulham LBC v Farnsworth (2000) I.R.L.R. 691 it was held that this factor was not to be taken cognisance of, while making a possession order. Moreover, the case law related to disability based discrimination is limited; which in turn, affects the provision of effective control against discrimination. The Disability Discrimination Act states that if reasonable adjustments cannot be initiated, then the discrimination is justified27. This statute operates at the individual level, and there is no compulsion for employers to ensure minimum standards, in order to facilitate disabled employees. The Disability Discrimination Act is the first statute that protects disabled employees from being subjected to disability related discrimination. However, this statute has been criticised by the activists of the disability movement. The Disability Discrimination Act defines disability as an inability to perform day – to – day activities. Such inability is caused by physical impairment, and the Disability Discrimination Act relies on medical models of impairment, rather than social models28. It fails to take into consideration, attitudinal barriers and stigmatisation. As such, the disabled person is required to initiate action for having been subjected to discrimination by the employer. In addition, the disabled person has to bear the costs entailed in obtaining medical evidence, and he is also subjected to other forms of stress29. Thus, the Disability Discrimination Act provides limited protection against discrimination in employment. Moreover, it enhances the burden on the disabled, while protecting their rights against discrimination. Works Cited 1. David Allen (a child by Ceri Allen, his Litigation Friend) v The Royal Bank of Scotland PLC . No. EWCA Civ 1213 . England and Wales Court of Appeal. 2009. 2. Ayling, Lisa. Disability and employment. July 2009. 7 January 2010 . 3. Bell, David and Axel Heitmueller. "The Disability Discrimination Act in the UK: Helping or hindering employment among the disabled? ." Journal of Health Economics 28.2 (2009): 465 – 480. 4. Clark v Novacold. No. IRLR 318. Court of Appeal. 1999. 5. "COUNCIL DIRECTIVE 2000/78/EC." COUNCIL DIRECTIVE 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. Brussels: The Council of the European Union, 27 November 2000. 6. "Disability Discrimination Act 1995." Disability Discrimination Act 1995 CHAPTER 50. London: Her Majestys Stationery Office, 8 November 1995. 7. "Disability Discrimination Act 2005." Disability Discrimination Act 2005 CHAPTER 13. London: Her Majestys Stationery Office, 7 April 2005. 8. "Disability Rights Commission Act 1999." Disability Rights Commission Act 1999 1999 CHAPTER 17. London: Her Majestys Stationery Office, 27 July 1999. 9. Duff, Angus, John Ferguson and Karen Gilmore. "Issues concerning the employment and employability of disabled people in UK accounting firms: An analysis of the views of human resource managers as employment gatekeepers." The British Accounting Review 39.1 (2007): 5 – 38. 10. EBR Attridge Law LLP and another v Coleman (No.2). No. IRLR 10 EAT. 2010. 11. Fareham College Corporation v Walters. No. EAT/0396/08, 0076/09. Employment Appeal Tribunal. 2009. 12. Ghaidan v Godin-Mendoza . No. 2 AC 557 HL. 2004. 13. Hammersmith and Fulham LBC v Farnsworth . No. I.R.L.R. 691. 2000. 14. Hunt, Paul, et al. Neglected diseases: a human rights analysis. World Health Organization, 2007. 15. London Borough of Lewisham v Malcolm . No. IRLR 700 HL. 2008. 16. Manchester City Council v Romano . No. 1 W.L.R. 2775. 2005. 17. O’Neill v Symm & Co Ltd. No. ICR 481. 1998. 18. "Protection from Harassment Act 1997." Protection from Harassment Act 1997 Chapter 40. London: Her Majestys Stationery Office, 21 March 1997. 19. Summary of the Law on Disability Discrimination. February 2009. 7 January 2010 . 20. "The Disability Discrimination (Blind and Partially Sighted Persons) Regulations 2003." Statutory Instrument 2003 No. 712 The Disability Discrimination (Blind and Partially Sighted Persons) Regulations 2003. London: Her Majestys Stationery Office, 14 April 2003. 21. "The Disability Discrimination (Guidance on the Definition of Disability) Appointed Day Order 2006." The Disability Discrimination (Guidance on the Definition of Disability) Appointed Day Order 2006 Statutory Instrument 2006 No. 1005. London: Her Majestys Stationery Office, 30 March 2006. 22. "The Disability Discrimination (Meaning of Disability) Regulations 1996 ." Statutory Instrument 1996 No. 1455 The Disability Discrimination (Meaning of Disability) Regulations 1996 . London: Her Majestys Stationery Office, 30 July 1996. 23. "The Disability Discrimination (Public Authorities) (Statutory Duties) (Amendment) Regulations 2008." The Disability Discrimination (Public Authorities) (Statutory Duties) (Amendment) Regulations 2008 Statutory Instruments 2008 No. 641. London: Her Majestys Stationery Office, 6 April 2008. 24. "The Disability Discrimination Act 1995 (Amendment) Regulations 2003." Statutory Instrument 2003 No. 1673 The Disability Discrimination Act 1995 (Amendment) Regulations 2003. London: Her Majestys Stationery Office, 1 October 2004. 25. "The Disability Discrimination Code of Practice (Services, Public Functions, Private Clubs and Premises) (Appointed Day) Order 2006." The Disability Discrimination Code of Practice (Services, Public Functions, Private Clubs and Premises) (Appointed Day) Order 2006 Statutory Instrument 2006 No. 1967. London: Her Majestys Stationery Office, 20 July 2006. Read More