Public and Commercial Services Union

Provided that an individual meets the definition of disability within the Disability Discrimination Act, they are entitled to the full protection that the act provides.

If someone is claiming victimisation, however, there is no requirement for them to be a disabled person.

Only uniformed personnel of the Armed Forces are exempt from the protections of the DDA.

What is covered by the Disability Discrimination Act?

Disabled people are protected from:

Direct discrimination

Direct discrimination occurs if a disabled person is treated less favourably 'on the grounds of their disability' when judged against a comparator with the same abilities as the disabled person but without that particular disability.

Case law will be important to distinguish the dividing line between 'less favourable treatment for a reason relating to disability' (see below) and 'less favourable treatment on the ground of the disability', though it is likely that a similar approach will be adopted by tribunals to their approach to direct discrimination on sex and race grounds.

Harassment

This is a new specific offence since 1 October 2004. It is defined as when 'for a reason which relates to the disabled person's disability' a person subjects the disabled person to unwanted conduct which has the 'purpose or effect of:

(a) violating the disabled person's dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for the disabled person.'

Unfortunately, there is a 'reasonableness' qualification on this offence.

This says that conduct will only be regarded as harassment 'if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect.'

In practice this may allow Tribunals to decide that, although a disabled person has complained about certain treatment, the tribunal does not consider it to 'reasonably' be bad enough treatment to constitute harassment. We shall have to wait and see on this one.

Failing to make reasonable adjustments

Where 'a provision, criterion or practice applied by or on behalf of an employer' places a disabled person at a significant disadvantage, compared to someone without that disability, the employer is under a duty to make 'reasonable adjustments' to reduce or remove the disadvantage. Recent case law set by the House of Lords (Archibald -v- Fife Council) shows that the extent of this duty to adjust is substantial.

From 1 October, 2004 employers have lost their defence of 'justifying' a failure to make a reasonable adjustment. So, if the adjustment is reasonable, it must be made. To determine whether an adjustment would be reasonable, there are several factors to take into account:

• how effective the adjustment would be in overcoming the disadvantage
• how practicable it is to make the adjustment
• the financial and other costs incurred by the employer and the extent of any disruption to activities
• the extent of the employer's financial and other resources
• the availability of financial and/or other assistance in making the adjustment
• the nature of the employer's activities and size of undertaking

There is not a definitive list of adjustments that must be considered - though there are numerous examples given, especially in the Code of Practice.

Less favourable treatment

Disabled people should not be treated less favourably for a reason relating to their disability than an employer treats (or would treat) someone without that disability.

Employers can still seek to justify less favourable treatment: where an employer can show that less favourable treatment for reasons related to disability is both 'material to the circumstances of a particular case' and is 'substantial' , the treatment may not be classed as a breach of the law.

The case of Jones -v- the Post Office gives limited scope to tribunals to make their own judgement of the reasonableness of a justification defence by an employer.

Victimisation

Victimisation has a particular legal definition in equality law. The sections of the DDA relating to protection from victimisation do not only relate to disabled people.

It is unlawful for employers to treat a person less favourably because they have:

• taken proceeding under the Act
• given evidence or information at such proceedings
• helped a disabled person to take proceeding under the Act
• alleged that someone has infringed the Act

The DDA applies both to disabled applicants for employment and to disabled employees. It applies equally to applicants for outside adverts and internal trawls and notices. It covers:

• recruitment and selection
• terms and conditions
• opportunities for promotion, career development and training
• working conditions
• employee benefits
• dismissal procedures

Complaining of discrimination - time limits

New legal procedures for dealing with grievance and discipline issues came into force from October, 2004 and the majority of disability discrimination cases will be subject to these new rules.

It is important that the rules are followed because:

There are penalties for failing to do so - in some cases the tribunal complaint will be rejected or compensatory awards can be reduced.
Time limits can be extended by following the new rules.

Discrimination as a grievance

If someone alleges disability discrimination has occurred, they must now lodge a letter of grievance with their employer. This must be done within 3 months of the act of discrimination being complained of.

This then has the effect of extending the time limit for lodging a compliant with a tribunal by a further 3 months (6 months from the date of the act being complained of).

Also, the tribunal application cannot be submitted until at least 28 days AFTER the letter of grievance has been lodged.

If someone fails to send the grievance letter and submits a tribunal complaint, the tribunal application will be automatically rejected. They must then submit the grievance letter within 1 month of the normal 3 month limit and they have 3 months to resubmit a tribunal complaint (but not within 28 days of sending in the grievance).

It is important that representatives give the right advice on this to members, as the new rules could restrict the ability of tribunals to accept 'late' claims, especially if the grievance letter is not submitted in time.

Questionnaires

Where a grievance letter is submitted as required, this will also serve to extend the period allowed to submit a questionnaire - these are explained later in the guide. You cannot, however, use a questionnaire as a grievance letter.