This December parts of the Disability Discrimination Act 2005 (DDA 2005) come into force. The main changes are:

• There will be a positive duty on public bodies to promote a quality of opportunity between disabled persons and other persons (paralleling the race equality duty).

• People with HIV, cancer or multiple sclerosis will be “disabled” from the point of diagnosis.

• The requirement that a mental illness be “clinically well recognised” to be a disability will be removed.

• Publishers (eg magazines and newspapers) may be liable for publishing discriminatory adverts inviting application for an appointment or benefit.

• Group insurance providers may be liable for discriminatory acts against disabled people.

These changes are due to come into effect on 5 December 2005, with the exception of the positive duty of public bodies, which will come into force in December 2006.

KEY IMPLICATIONS

1. Public bodies will have their work cut out over the next year putting into place policies and procedures designed to meet the legislation, under the guidance of the Disability Rights Commission

2. The definition of disability has been substantially widened, with a much greater likelihood that general medical conditions, such as stress, will qualify.

3. Individuals with HIV, cancer and multiple sclerosis will qualify as disabled without the need to prove anything other than the diagnosis of their condition.

AMENDED DEFINITION OF DISABILITY

The new legislation will significantly broaden the definition of “disability” for the purpose of the DDA 1995.

Firstly, there will be an end to the requirement that mental illness be “clinically well recognised”. The change to the definition means that employees diagnosed with general conditions such as “stress”, “depression” or “anxiety” may be protected by the legislation if they satisfy the other requirements of the definition of “disability”, i.e. where the condition:

• Lasts or is likely to last 12 months or more ; and

• Has a substantial adverse effect on their ability to carry out day to day activities.

Secondly, conditions such as HIV, cancer and multiple sclerosis are specifically identified as disabilities under the new legislation. Currently these are classed as “progressive conditions” and require an individual to prove that the condition has an effect on their ability to carry out normal day to day activities and that it is likely in due course to have a substantial adverse effect upon them before it will qualify as a disability. The new legislation will extend protection from discrimination to those with these conditions from the point of diagnosis, which may be some time earlier.

POSITIVE PUBLIC DUTY

The new legislation places a positive duty upon Public Authorities to promote quality of opportunity for people with disabilities, in addition to their existing duty not to discriminate under the DDA 1995. This provision will apply to, for example, Local Authorities, government departments, universities and NHS Hospitals. In brief, the new legislation stipulates that public bodies must:

• Eliminate the harassment of disabled persons due to their disability;

* Promote equality for disabled people;

• Take into account disabled peoples’ disabilities, even where that involves treating disabled people more favourably than others;

• Promote a positive attitude towards disabled people;

• Encourage disabled people to participate in public life.

The Disability Rights Commission (DRC) has published a code of practice and guidance for public bodies on how to implement this duty. It has stated that the legislation will “bring about a shift from a legal framework which relies on individual disabled people complaining about discrimination to one in which the public sector becomes a pro-active agent of change”. The new law requires that major public bodies produce disability Equality Schemes in consultation with disabled people. This will involve the preparation of a three year action plan setting out how the body will meet its oligations, followed by evidence to show that they have taken the actions set out in the plan and achieved an appropriate outcome. If a public body fails to comply with its specific duties under the DDA 2005 the DRC can issue a compliance notice which is enforceable in the County or Sheriff Court.

The positive duty has wider implications which will impact upon private sector organisations as the obligation applies when public bodies contract with the private sector. This means that from December 2006 private sector organisations which contract with the public sector are likely to have to provide evidence of their commitment to disability equality.

DISCRIMINATORY ADVERTISEMENTS

Employers who publish a discriminatory advert can be liable for discrimination under the DDA 1995. This liability will be extended to third party publishers from December 2005.

It will be a defence to any disability discrimination claim against a publisher if they can prove that they published the advert in reliance on a statement made by the employer that the advert was not unlawful, and that it was reasonable for them to rely on such a statement. Accordingly, there will be a new summary offence (punishable by a fine of up to £5,000) where employers knowingly or recklessly make false or misleading statements that their advert is lawful where it is discriminatory.

HOW WE CAN HELP YOUR BUSINESS

We hope that this article is informative and useful for you. We would be happy to help you ensure that your workplace is compliant with disability discrimination legislation. We can also advise in respect of any particular instances where you think that this legislation may be relevant. We can:-

• Help formulate a disability discrimination policy for your organisation.
• Assist in auditing your existing policies and procedures and recommend and/or draft changes to these where appropriate.
• Provide training for managers and staff.
• Provide specific advice on any areas of concern.

This article is not a comprehensive guide to the law and advice should be sought on individual situations.

LINKS

For the full text of the DDA 2005 and its mandatory notes see:

OPSI

The guidance of the Disability Rights Commission can be found on its website at:

Disability Rights