This equipment was donated by Thompsons solicitors

This equipment was donated by Thompsons solicitors

Working with HIV/ AIDS

Wednesday 7th February 2007

http://www.thompsons.law.co.uk/index.htm

The Disability Discrimination Act 1995 (as amended)

Catherine Casserley,

Barrister-at-law

Senior Legislation Adviser

Institute of Employment Rights Working with HIV/ AIDS Wednesday 7th February 2007

The Disability Discrimination Act 1995

- Amended by :

- Special Educational Needs and Disability Act 2001

- The Disability Discrimination Act 1995 (Amendment ) Regulations 2003 SI 2003/1673

- The Disability Discrimination Act 2005

- See also the statutory codes of practice at the DRC website


Disabled person – defined in s.1 and Schedule 1 of the Act

- Schedule 1 as amended: ) … a person who has cancer, HIV infection or multiple sclerosis is to be deemed to have a disability, and hence to be a disabled person

- In this Schedule, “HIV infection” means infection by a virus capable of causing the Acquired Immune Deficiency Syndrome.


Only disabled persons are covered by the Act (though see Attridge Law v Coleman Times, January 12, 2007)


Employment – What is Unlawful?

Recruitment: s.4(1)

To discriminate against a disabled person

(a) in the arrangements made for determining to whom employment is offered (i.e. application and interview process)- Murray v Newham CAB EAT/1096/99 6 July 2000 (1st hearing)

(b) in the terms in which employment are offered

(c ) by refusing to offer or deliberately not offering employment

What is Unlawful?When in Employment :s.4(2)


To discriminate against a disabled employee

(a) in the terms of employment

(b) in the opportunities afforded for promotion, a transfer, training or receiving any other benefit, or by refusing such opportunity

(c ) by dismissing him or subjecting him to any other detriment (Jenkins v Legoland Windsor EAT/1155/02 3 July 2003)

What is Unlawful?Harassment :s.4(3)


It is also unlawful to subject a disabled person, either an applicant or employee, to harassment

Harassment: where for a reason related to disability, there is unwanted conduct which has the purpose or effect of violating the disabled person’s dignity or creating an intimidating, hostile, degrading humiliating or offensive environment for him

Forms of Discrimination (s.3A)

• direct discrimination (s.3A(5))

• failure to make a reasonable adjustment – the cornerstone of the Act (s.3A(2))

• disability related discrimination (s.3A(1))


Direct Discrimination

Treating a disabled person, on the grounds of disability, less favourably than you treat or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as or not materially different from, those of the disabled person

No justification possible


In Practice

• treatment based on prejudice

• “blanket” bans

• e.g. Leon worked as a hairdresser in an exclusive hair salon in a large city. He disclosed his HIV status to his employers as he felt he might have to take time off work. He was then dismissed from his job as his manager felt that customers and staff would feel uncomfortable with him working in the salon. This would be unlawful direct discrimination


“Disability Related” Discrimination

• where, for a reason relating to the disabled person’s disability, you treat him less favourably than you would treat others to whom that reason does not or would not apply

• broader than “direct” discrimination

• effectively, treatment which relates to disability but does not fall within “direct discrimination” e.g. dismissal because of sickness absence

• Clarke V TDG Ltd t/a Novacold [1999] IRLR 318 CA

• Murphy v Slough Borough Council and Governing Body of Langley Wood School EAT/1157/02


“Disability Related” Discrimination - Example

• a person who takes six months sick leave due to a disability is sacked

• not direct discrimination - anyone in the same circumstances would have been treated in this way

• less favourable treatment for a reason relating to their disability - but for the disability, they would not have had the six months off, and so would not have faced the sack

• subject to justification “material and substantial reason”


Duty to Make Reasonable Adjustments s.4A, 18B

where a

• provision, criterion or practice applied by or on behalf of an employer, or

• any physical feature of premises occupied by the employer

• places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable in all the circumstances of the case for him to have to take in order to prevent the physical feature or provision criterion or practice from having that effect.


Duty to Make Reasonable Adjustments

“provision criterion or practice” includes arrangements

• examples of adjustments (18B) are:

• making adjustments to premises

• allocating some of the disabled person’s duties to another person

• transferring him to fill an existing vacancy

• altering his hours of working or training

• assigning him to a different place of work or training


Duty to Make Reasonable Adjustments 2

allowing him to be absent during work or training hours for rehabilitation, assessment or treatment

• giving or arranging for training or mentoring (whether for the disabled person or any other person) – to capture the DRTF recommendation of disability awareness training as an adjustment

• acquiring or modifying equipment

• modifying instructions or reference manuals

• modifying procedures for testing or assessment

• providing a reader, interpreter, supervision or other support


Factors to be taken into account in Determining what is Reasonable (18B)

• the extent to which taking the step would prevent the effect in relation to which the duty is imposed

• the extent to which it is practicable

• the financial and other costs incurred in taking the step and the extent to which taking it would disrupt any of his activities

• the extent of his financial and other resources

• the availability of financial or other assistance


Factors to be taken into account in Determining what is Reasonable

• the nature of his activities and the size of his undertaking

• where the step would be taken in relation to a private household, the extent to which taking it would:

• (a) disrupt that household or

• (b) disturb any person residing there


A Failure to Make a Reasonable Adjustment Cannot be Justified

Either it is reasonable, in which case there is a breach of the duty, or it is not, in which case there is no breach

For the duty to apply, the employer must know or be reasonably expected to know, that the person has a disability and is likely to be affected by the provision/physical feature


Justification

• Justification is only applicable to disability related discrimination, not to direct or failure to make reasonable adjustments

• “material and substantial” (3A(3))– relatively low threshold (Jones v Post Office [2001] IRLR 384

• BUT cannot justify if there has been a failure to make adjustments which would have made a difference to the reason for treatment (s.3A(6)) - this is key to the DDA now


Key Cases

• Archibald v Fife Council [2004] IRLR 197

• Notts County Council v Meikle [2004] IRLR 703

• High Quality Lifestyles Ltd v Watts [2006] IRLR 850


Key Issues Relating to HIV in the Workplace and the DDA

• Disclosure

• Sickness absence

• Health and safety


Disability Equality Duty – the Public Sector and HIV

• All public authorities bound by the general duty to promote disability equality

• Key public authorities also have to produce a disability equality scheme, which will include arrangements for monitoring disability

• Must take a proactive approach to disability equality – in the employment context, means taking an anticipatory approach e.g. impact assessing relevant employment policies etc


Contact us

• www.drc-gb.org

• Helpline: 08457622633


http://www.drc-gb.org/





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