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Nick Booth, Barrister, Old Square Chambers
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Title:
DDA IN 2001 - OVER-REGULATION
OR UNDER-PROTECTION?
Who is covered and the scope of the Act
The next few years will see the first reforms to the DDA:
The Government has given its response to the final report of the Disability Rights Task Force ("DRTF"), "From Exclusion To Inclusion" (FETI), in its consultation paper, "Towards Inclusion" (TI), setting out proposals for legislative reform;
the Article 13 Directive will of itself require further reform.
The aim of this workshop is to consider where the DDA now is, and where it should be, if it is to be an effective tool for overcoming workplace disadvantage for disabled people without posing an undue compliance burden on employers.
Who should be covered by the Act?
This question itself has two parts: who should be entitled to bring a claim? Who should be subject to the Act’s duties?
One cannot consider the first question, which goes to the definition of disability, without considering the aim of the DDA.
There are at least three distinct types of case:
the DDA protects workers and job applicants from unfounded and stereotypical assumptions, prejudice and fear;
the DDA requires employers to make reasonable adjustments where this will enable them to work;
the DDA requires employers to respect a principle of proportionality when taking decisions about disabled people’s work and working conditions, embodied in the defence of justification.
Q1(a): Including perceived disability
The first aim listed above is akin to the rationale underlying direct sex and race discrimination legislation. People are subjected to detriments because of employers’ erroneous and prejudiced perceptions, and that this is always unjust. There is no question of striking a balance here.
It follows that all those who are victims of such perceptions should be protected. For that simple reason, the US Americans With Disabilities Act (ADA) covers discrimination on the ground of perceived disability.
The DDA, in contrast, only protects those who are actually disabled. The DRTF proposed only piecemeal changes to cover the most serious examples of current under-protection, but called on the DRC to consider wider changes. The DRC itself noted in its response to TI that "by piece-meal responses to areas in which the definition of disability is inadequate the definition of disability becomes unwieldy".
The proposed reforms remove some of the more obvious gaps in protection -- those with HIV are to be protected from the time of diagnosis, and those with cancer from the time when substantial treatment is likely. But there will continue to be gaps:
An employer discovers that an employee has tested for HIV. It excludes him from its sickness benefit and private health insurance scheme because of its concern that he may well become infected in the future and go on to develop HIV-related illnesses;
An employer regards an employee as "too unstable" for promotion to a higher level of responsibility because of a short-term absence several years ago during which the employee was receiving counselling and medication for stress and anxiety.
Q 1(b): Simplifying the definition of disability
The second and third aims of the DDA are, unlike the first, all about striking a balance between the reasonable needs of disabled people and employers. In each these cases disability will have put the DP at a disadvantage and the question is how far the employer must go to adjust for it.
Inevitably, therefore, the duties imposed on employers contain a built-in flexibility to take into account the constraints on them. They need only take such steps as are reasonable in all the circumstances to reduce disadvantage – and any number of issues, economic, technical or organisational, can come into play in determining that question (as well as the efficacy of the step itself). Equally, they can treat DPs less favourably provided their reasons for doing so are "rational" (see more on justification below).
Given that flexibility, it is submitted that an under-inclusive definition of disability does much more harm than an over-inclusive one.
The DDA’s definition of disability, full as it is of arbitrary exclusions and quirks, is (we submit) seriously under-inclusive.
But it is worse than that. Unlike the qualifying period for unfair dismissal (which is at least relatively simple to operate), the DDA’s thresholds positively encourage complex and sometimes controversial medical evidence about which side of an arbitrary line the Applicant falls.
The resulting increase in expense, complexity and length of hearings and uncertainty of result manages both to limit the DDA’s effectiveness (by reducing disabled workers’ effective access to justice) and significantly to increase the DDA’s compliance burden on business.
Against that background, it is submitted that good policy reasons are required to justify the retention of the existing definition, the following elements of which appear particularly problematic.
Exclusion of work activities from "normal day-to-day activities". The DRTF commented on this as follows (FETI Ch. 3 paras 18-19):
"18. We considered whether the reasons for not including work as a normal day-to-day activity had been clearly explained in statutory guidance and was understood by legal advisers and Employment Tribunals. The reasons were, firstly, that there was no single occupational role that is common for most people; and, secondly, many activities carried out as part of particular occupations, were exceptional and not normal.
19. We therefore felt the exclusion of exceptional activities was acceptable. However, many of the activities carried out in employment are not exceptional and would be quite normal outside the work place. For example, if a person with Repetitive Strain Injury cannot operate a keyboard in the workplace but does not use a keyboard outside work, this does not imply that he is not covered. Operating a keyboard outside the workplace is a normal day-to-day activity for very many people, even if it is not for him. He is likely to be covered by the DDA definition."
With respect, this passage still leaves the rationale for the exclusion unclear. Of all people, employees who are unable on a substantial and long-term basis to perform tasks at work by reason of physical or mental impairment would seem to be among those who most need the DDA’s protection. This exclusion makes their civil rights at work depend upon whether the activities affected happen also to be "normal day-to-day activities", or whether there happen to be other such activities also affected.
The activities covered. Sch 1 para 4 sets out an arbitrary list. Many practitioners and advisors will have found themselves trying to squeeze conditions into one or other category. Those with mental impairments, as the DRTF recognised, are at particular risk of finding themselves excluded (e.g. agoraphobics and those with impairments to social interaction and feeling.)
The definition of "long-term". The exclusion of those whose disabilities are likely to have subsided within 12 months is perhaps the most arbitrary of all the elements in the definition. It is particularly pernicious since the most common complaint arising out of the DDA is dismissal on ill-health grounds, where an employee will have typically been absent from work after a few months’ or even weeks’ absence. It is a somewhat bitter pill for workers to learn that their condition lasted long enough for their employer to give up on them, but not long enough to give them robust protection.
The rule cannot even be said to provide any real legal certainty for the employer, especially since the worker is able to rely on hindsight and rely at the ET on the fact that the adverse effects have in fact lasted longer than 12 months, even though they did not seem likely to at the time of the act complained of (see para B8 of the statutory guidance as approved in Greenwood v BA [1999] IRLR 600).
The consideration of whether an effect is likely to last over 12 months, or to recur, will very often require expert medical evidence.
The DRTF’s suggestion that the requirement be scrapped altogether and replaced with an overall requirement that adverse effects be "substantial" both in severity and in duration, is therefore a welcome one.
Mental impairments. The definition excludes mental impairments resulting from mental illnesses unless these are clinically well-recognised. The supposed justification appears to be a fear of Applicants relying on spurious medical conditions. Of course, there is no getting around the need for workers to prove the genuineness of their symptoms (for which some diagnosis of their cause is often helpful), and medical evidence will to that extent be inevitable. It is however unclear why more should be required than this. As PI lawyers know, medical experts often agree that symptoms are genuine but disagree as to their cause; and disagree in particular as to the existence of certain conditions (think of RSI, fibromyalgia, ME, functional overlay…). Such debates may be unavoidable where the focus is on whether the employer should have foreseen the condition develop, but they appear entirely irrelevant on the question whether the employer should act to accommodate its effects once it has manifested itself.
Again, the DRTF has suggested the abolition of this restriction and we support that. It goes on, however, to suggest that temporary but severe short-term conditions be excluded, an exclusion which we think unnecessary – the more exclusions, the more scope for litigation on them, and if an employer were indeed to discriminate because of (or fail to accommodate) a short-term but severe condition, why should the worker not be protected?
Reasonable adjustments
Two issues to consider here:
The scope of the duty – what kind of adjustments must an employer consider?
the interrelationship between the duty of reasonable adjustments and justification.
The level of ET scrutiny: review of the reasonableness of the employer’s decision, or substitution of the ET’s own view?
The scope of the duty
This was considered in Kenny v Hampshire Constabulary [1999] IRLR 76. The EAT found that an employer was not under any duty to provide assistance with personal care: "It seems to us that in the context of the language used … Parliament had in mind what might be called ‘job-related’ matters… A line has to be drawn on the extent of the employer's responsibilities in providing adjustments to accommodate a disabled employee." (per Morison J at paras 40 and 44).
It also appears that the employer does not have to compensate for the DP’s inability or reduced ability to work:
there is no duty to make adjustments in relation to performance pay schemes. If the employee is not able to perform at the same rate as others, she can be paid less under such a scheme: see reg 3 of Employment Regulations SI 1996/1456;
there is no duty to make adjustments in relation to pensions, sick pay, health insurance, long-term disability cover etc: s.6(11) DDA.
Another interesting question relates to the scope of the duty to accommodate in relation to job requirements. Many disabled people will have less experience or qualifications because of the discrimination they have faced at school or in the job market. Must an employer who has set a rationally justifiable qualifications or experience requirement accommodate such an employee on the basis that they have the "potential" to do the job with extra training and/or part-time study leave?
The relationship between reasonable adjustments and justification
One might have thought that there was intended to be a close fit between the extent of the duty to make reasonable adjustments and justification.
The Act provides for this in one direction – an employer cannot justify action which a reasonable adjustment would have avoided (s.5(5) DDA).
Conversely, one might argue that if all reasonable adjustments have been taken into account, the employer’s action will be justified so long as it meets the requirement of proportionality or rationality apparently set out in s.5(3) (more on this below). One powerful reason in support of this is that, given the test for less favourable treatment adopted by the CA in Clark v Novacold [1999] IRLR 318, many cases could be framed equally easily as discrimination under s.5(1) or 5(2):
an employer requires job applicants to have Maths GSCE for a simple administrative post. A candidate with a learning disability was not regarded as capable of passing the exam and was not entered for it but is able to use the employer’s IT systems to carry out the numeracy-related tasks in the job. It will be discrimination to reject the candidate on the basis of qualifications, whether on the basis that it has failed to take a reasonable step (adjusting its assessment procedures) or that it has unjustifiably treated her less favourably for a reason related to her disability (cf. Code 5.6, 5.21).
However, the case law suggests that even adjustments outside the scope of s.6 may be relevant to justification:
in Kenny v Hampshire Constabulary, even though the EAT found that there was no duty to provide or fund a personal carer, the case was remitted to the ET to determine whether the employer had been justified in rejecting the job applicant in circumstances where an enquiry about the possibility of PACT funding for such a carer was still outstanding at the time.
in a case now on its way to the EAT (Hood v London Clubs), an ET found that the employer’s failure to exercise its discretion to pay sick pay to a disabled employee was unjustified discrimination.
This poses some analytical difficulties:
For one thing, it may lead to arbitrary results. Suppose the need for assistance with personal care during working hours arose in the case of a current employee. He would not be able to force the employer to consider accommodating that need directly, because no section 6 duty arises. If he resigned as a result of the employer’s failure to do so, presumably he would be without remedy. If, however, the employer dismissed him because of his inability to perform the job, the employer’s failure to look into the possibilities of arranging care would apparently be relevant to the question of justification.
For another, it casts doubt on precisely what the defence of justification is meant to cover – more on this below.
The level of scrutiny
Morse v Wiltshire County Council [1998] IRLR 352 decided that the question of what steps it was reasonable to take under s.6 was an objective one for the ET to decide for itself. In contrast, Jones v Post Office [2001] IRLR 384 decides that in relation to justification, the ET is only to consider whether the employer’s reason was within the band of reasonable responses to the treatment – see more on this below.
The difficulty of this is the overlap in practice between s.5(1) and s.5(2) cases, a matter already referred to above. Consider:
A is a truck driver employed by X Co. and is diagnosed with insulin-dependent diabetes. A tells his employer and asks to be allowed to stop every 2 hours for a 15-minute meal break, relying on advice from his own GP. X Co. refers him to its occupational health adviser who disagrees with the GP concludes that A cannot safely drive for more than 2 hours in any 4 hour period even with meal breaks. X Co. takes him off the truck runs and offers him an alternative desk-based job which (although he is not told this) will be paid 20% less. A refuses to take the new job and is dismissed.
Scenario (a): A claims that the dismissal cannot be justified because the reason for it was not material and substantial in the circumstances, relying on an expert consultant’s report to the effect that he can drive safely provided he can take the breaks. The ET is not entitled to adopt the consultant’s view in preference to the OH doctor’s as long as the original risk assessment was "rational" in the sense that it was based on relevant evidence and did not take irrelevant matters into consideration: it must rule that his dismissal is justified – Jones v Post Office [2001] IRLR 384 – see below.
Scenario (b): A claims that the dismissal cannot be justified because of X Co’s failure to make a reasonable adjustment, namely allow him to take meal breaks – i.e. he relies on s.5(5) to preclude the s.5(3) justification defence. If the ET is to apply an objective test in considering the "reasonable steps" that an employer must take (as Morse v Wiltshire County Council decided) then there is nothing to stop it from concluding in this case that it, on the evidence it has heard, it was reasonable to allow A to drive with meal breaks.
This apparent anomaly can only be resolved if Jones v Post Office is taken to have overruled Morse not only as to the test for justification, but also as to the approach towards reasonable adjustments, at least where the employer has considered the matter.
That last caveat is important because the ET will sometimes have to consider whether s.6 has been complied with even if the employer has not addressed its mind to the question. The employer cannot be liable under s.5(2) if there were, in fact, no steps it would be reasonable to have taken – British Gas Services v McCaull [2001] IRLR 60.
Yet can it really be that the ET is to apply the same statutory language on a different basis depending upon whether or not the employer has considered the matter?
_ DRTF: "From Exclusion To Inclusion" at 3.3
Nick Booth - Old Square Chambers