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Discrimination occurs when a person is, for a reason related to their disability:
· unjustifiably treated less favourably than others · subjected to harassment · victimised
Discrimination also occurs when an employer fails to make a reasonable adjustment in relation to a disabled person. The new Act extends this protection to groups previously not covered, such as people with
progressive conditions like cancer, HIV and multiple sclerosis. This protection becomes effective from the point of diagnosis.
Conditions which affect a person’s ability to carry out normal day to day activities and which are likely to produce substantial adverse effects in the future are
also covered. People who have had a disability in the past will also be included, even if they have
recovered – for example those who have previously had episodes of mental ill health. People who have severe back pain or arthritis can be covered by the law if that condition means that their ability to do normal
activities is impaired. The definition of disability is further extended in relation to mental illness. Where the
previous DDA 1995 required for any mental impairment to be ‘clinically well recognised’ in order to be constituted as a disability, the new provisions remove this restriction. According to the government, these new categories will increase the number of people covered by the DDA by around 175,000.
It
is important for employers to be familiar with the requirements in this area and the changes involved as the consequences of failing to comply with them could be serious. If an employment tribunal were to find that disability discrimination has occurred, it could impose tough penalties and
there is no limit on compensation. There are no length-of-service or age requirements
in bringing a claim and where the claimant is an employee, he or she does not need to have left your employment. However, the claim to an employment tribunal will generally have to be brought within three months of
the alleged discriminatory act occurring. In the private sector, the discrimination provisions apply to all employers
regardless of their size. This provision covers all aspects of employment including applications, interviews,
promotion and training. This means that someone may be able to take an employer to an employment tribunal even though they’re not an employee, if they believe they weren’t selected for a particular job for
discriminatory reasons. Care must therefore be taken in the wording and placing of recruitment advertisements.
While the current provisions make it unlawful for an employer to publish a discriminatory advertisement, they do not prohibit
third parties (e.g. newspapers or magazines) from publishing a discriminatory advertisement on behalf of another. The new provisions fill this gap and as of 5 December 2005 it will be unlawful for a third party to
publish a discriminatory advertisement. The new provisions should now make it clear to employers when and how the
DDA applies to them; this will be most important to small and medium enterprises where minimising red tape is essential.
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