UK: Disability Discrimination: The New Provisions

The DDA now draws a distinction between direct discrimination and less favourable treatment for a reason relating to a person’s disability.

Direct discrimination is defined as less favourable treatment of a disabled person on the grounds of his or her disability where the relevant circumstances, including the abilities of the disabled person, are the same as for a person without that disability who is or would be treated more favourably. In other words, it will be unlawful for an employer to treat a disabled job applicant or employee less favourably simply because of his or her disability. Direct discrimination can never be justified.

The old definition of disability discrimination has been retained, so that discrimination occurs where for a reason which relates to the disabled person’s disability, an employer treats him or her less favourably than the employer treats or would treat others to whom that reason does not or would not apply. Discrimination on these grounds i.e. discrimination for a reason related to disability can still be justified by an employer.

The difference between the two definitions can, in practice, be difficult to understand. The new Code of Practice issued by the Disability Rights Commission and which also came into force on 1 October 2004 gives some practical examples which you may find helpful.

The wording of the reasonable adjustments provision in the DDA has been changed so that an adjustment must be made where a "provision, criterion or practice" rather than an "arrangement" (as was) places a disabled person at a substantial disadvantage. It has been stated that this amendment will expand the scope of the reasonable adjustments which an employer has to make; for example, it could apply to redundancy selection criteria or a policy that all employees must work full-time. However, in reality, this change is unlikely to make much difference as most employers worked on the basis that the duty to make reasonable adjustments was a broad one in any event.

It should be noted, however, that it will no longer be possible to justify a failure to make reasonable adjustments. An adjustment will either be reasonable or not and if the employer is under a duty to make an adjustment, it should do so.

The amendments to the DDA introduce harassment as a freestanding concept in disability discrimination for the first time. Harassment is defined as unwanted conduct for a reason relating to the disabled person’s disability which has the purpose or effect of violating the disabled person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.

As with other forms of discrimination, under the new definition a person may harass another person even if it is not his or her intention to do so. The focus is on the person who is the subject of the unwanted conduct: if the disabled person feels harassed and it is reasonable for him or her to feel that way, the conduct is likely to be considered as harassment.

There is now a statutory definition of postemployment discrimination in the DDA. This type of discrimination will usually occur where, for example, an employer provides an unfavourable reference in respect of a disabled person for discriminatory reasons after the employment relationship has ended.