Content of Chapter 2
2.1 Definition of Discrimination
2.2 The DDA 'Backbone'
2.3 History and Paper Tiger
2.4 Who is covered?
2.5 Burden of Proof
2.6 Indirect and Lawful Discrimination
2.7 Positive Discrimination
2.8 What the Employer has to do
2.9 Remedies
2.10 Conclusion DDA
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2.1 Definition of Discrimination
The 'DDA 1995' introduced new measures; aiming to end the discrimination that many disabled people experience in their everyday lives.
"Under the DDA, discrimination occurs where:
- a disabled person is treated less favourably than someone else
- the treatment is for a reason relating to the persons disability
- the treatment cannot be justified.
Discrimination also occurs when;
- there is a failure to make a reasonable adjustment for a disabled person
- that failure cannot be justified."
(www.drc-gb.org/knowyourrights/discrimination.asp)
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2.2 The DDA 'Backbone'
"'If an employer treats a disabled employee less favourable than a non-disabled employee, and that treatment cannot be shown to be justified, then discrimination has occurred.' Disability Discrimination Act 1995 (DDA)" (Daniels 2004 p.99)
In legal terms, the definition of a disabled person is widely:
"'(…) anyone with a physical or mental impairment, which has substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.' Disability Discrimination Act 1995 (DDA)" (Daniels 2004 p.99)
The DDA is the most important piece of legislation for disabled people in their daily life and their work environment. The latest version (October 2004) of the DDA also covers small employers (www.dwp.gov.uk/employers/dda/employers.asp) (2.). The bottom line of the Act is that it is unlawful to treat disabled employees or candidates less favourably, for a reason related to their disability without justification.
In this context, justification means that if the disability has a genuinely adverse effect on the ability to do the job and it cannot be remedied by a change in equipment or alteration to the building, then that person is not protected by the law.
The law is already applicable when recruiting a person, which means that potential employers need to make arrangements for interviews and assessment centres so that applicants with disabilities are not disadvantaged. This might be, for example, practical help with transport or a sign language interpreter. (doctorjob's 2004) The DDA goes further into the employment sector, for example through career development and redundancy.
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2.3 History and Paper Tiger
Discrimination Law is quite new and started in 1979 with the 'Equal Pay Act'. It was based on an EC Directive, and the UK had to bring such a law into force to become a member. This Act addresses the issue that women and men should be paid equally for the same work. (Daniels 2004 p.88) However, the evidence for its effectiveness is poor and the difference in pay is still around 3% since its initiation. (Ms Hewlett, Lecture 'Law of Employment' 15/03/2005) This aspect brings into question, how big the impact of law is on discrimination. It helps to have rights but whether you can use them is a different matter.
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2.4 Who is covered?
It is impossible to give a complete definition of who is covered and who is not. Only the courts can categorically decide whether somebody is covered. Nevertheless, an impairment must be a 'clinically recognised' illness and must be classified by a doctor as a disability even if a diagnosis has not been given. This occurs even when the sickness has no visible or measurable symptoms such as gripping pains.
It might be even more difficult to prove that discrimination took place with the 'Equal Pay Act' as this is often an emotional issue. So even with witnesses, it is possible that they are not brave enough to give evidence, or encourage the bullying at work against minorities. There are many consequences in trying to fight for own rights, such as social isolation. As the labour market can be difficult, many might be scared to lose their jobs. As a matter of fact, not everybody has the backbone to stand up for own rights.
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2.5 Burden of Proof
The burden of proof carries the respondent, which is normally the employer.
"The Disability Discrimination Act 1995 (Amendment) Regulations 2003 reversed the burden of proof. Once the employee has produced facts from which the Employment Tribunal could deduce that discrimination has occurred, then the complaint is upheld unless the employer can prove that he did not commit the act of alleged discrimination, or is not responsible for it.' (Daniels 2004 p.100)
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2.6 Indirect and Lawful Discrimination
Indirect Discrimination states that the intention of the employer is irrelevant. Daniels put it quite clearly:
"This is where the employer applies to both sex/all races a criterion that adversely affects a considerably larger proportion of one group than another and it is to that group's detriment that he/she cannot comply and the criterion cannot be justified." (Daniels 2004 p.90-91)
Yet there are situations when it can be lawful to discriminate, for example, when there is a genuine need for a particular sex, race or in the case of disability, a particular health condition. This might occur when there is a call for manual labour, mobility flexibility, or health and safety in the work place. For instance it is generally difficult to work as a disabled person on most means of transport such as a ship, where the staff also have to ensure the health and safety of passengers as a priority during emergency.
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2.7 Positive Discrimination
Positive discrimination means a rule such as a quota, which removes inequalities to ensure equal opportunities. It occurs when a particular minority is under-represented in a particular area or at a particular level within an organisation. There has to be a ratio if the barriers really exist and the quota is justified to ensure that it helps the minority.
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2.8 What the Employer has to do
The employer is required to make 'reasonable' adjustments to accommodate the needs of the disabled employee. A reasonable adjustment depends also on the size of the company and its financial situation. The following adjustments should be affordable:
- "Making physical adjustments to the workplace
- Allocating some of the duties to another employee
- Moving the disabled person to another job
- Altering the hours of work (e.g. easier travel arrangements)
- Moving the employee to a different place of work
- Allowing time off during working hours for treatment or rehabilitation
- Arranging training for the employee (ex. more suitable job)
- Acquiring or modifying equipment
- Altering instructions or reference materials
- Altering procedures for testing or assessment (eg. allowing a longer time to complete the activity)
- Providing a reader or an interpreter
- Providing supervision (avoid dangerous situations)"
(Daniels 2004 p.99)
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2.9 Remedies
"The remedies are the same as for sex and race discrimination." (Daniels 2004 p.100) This means that there is no limit to how much an employment tribunal can require an employer to pay someone if, as an employer, you have discriminated against them. The company is responsible for the actions of the employees, so the staff should also know, what is expected of them.
The general purpose of remedies is to reduce the discrimination effect on employees. These are the following measurements that can be awarded by an Employment Tribunal:
- "A declaration of the rights of the parties.
- An order of compensation that is not subject to a maximum. The compensation should address any loss or damage that has occurred, and can include a sum relating to injured feelings.
- A recommendation that the employer should take certain actions to ensure that the situation does not recur. If the employer does not take these actions, without reasonable justification, compensation can be increased."
(Daniels 2004 p.93)
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2.10 Conclusion DDA
The DDA is a massive piece of legislation (3.) and covers the whole area of disabled people well. There are worries that it might not be adopted whole-heartedly, as the difficulties that arise from its implementation have to overcome social and moral barriers in order to establish the rights of those concerned.
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Chapter 3
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