What you need to know: Disability Discrimination Act

Headlines

• The Disability Discrimination Act (DDA) has an effect on the way you manage safety
  
• While you can use health and safety issues related to disability as a reason not to employ someone – or to refuse a service to someone – you can only do so if certain conditions are met
  
• If the safety of a task may be affected by someone's disability, then a risk assessment should be carried out for everyone, not just for disabled employees
  
• If you don't document the steps you've taken to consult disabled workers or customers, and to make reasonable adjustments, your organisation could be involved in an expensive tribunal case.
  

Legislation

The key legislation is the Disability Discrimination Act 2005.  This should be read in conjunction with the earlier DDA 1995.  DDA (1995) section 6 explains the duty of employers to make reasonable adjustments to allow a disabled person to carry out their job. Section 21 states the duty of service providers to make reasonable adjustments to allow disabled people to access their services.

The Data Protection Act 1998 defines 'sensitive personal data' to include information about an individual's physical and mental health. Schedule 3 of the Act provides the conditions under which sensitive personal data can be used. Where an employee, or the user of a service, discloses information about their disability for the purposes of a risk assessment, an organisation has a responsibility to follow the Act in the use of that information.

Regulation 3 of The Management of Health and Safety at Work Regulations 1999 requires that a suitable and sufficient risk assessment be made of the health and safety risks to employees. The regulations introduced a particular responsibility to consider young workers – regulation 3(4) and 3(5) – and pregnant workers. While there's no specific mention of disability in this regulation, it should be clear that the assessment of an individual's ability to safely work, or to receive a service, will need to take account of their capabilities.

In addition, public bodies must comply with the Disability Equality Duty. See the Disability Rights Commission website and Do the Duty for more details. 

What is a disability?

DDA (1995) defines a disabled person as someone with a "physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities". DDA (2005) extends this to include people with cancer, HIV or multiple sclerosis from the point of diagnosis. Schedule 1 (2) of the DDA (1995) defines long-term to mean an impairment that's lasted, or is likely to last, twelve months or more –  or that's likely to last for the rest of an individual's life. Substantial is less well defined in the regulations, but paragraph 4(1) of schedule 1 of the DDA (1995) list some of the impairments to consider, including mobility, ability to lift and carry, and eyesight.

Good safety management practice suggests that rather than being concerned over whether someone counts as disabled under DDA, the capabilities of every individual should be considered, and reasonable adjustments made as needed.

What is discrimination?

DDA (1995) section 5 defines disability discrimination as treating someone less favourably than another because of a reason relating to that person's disability. The Equality and Human Rights Commission (EHRC) provides a simpler definition which is "treating someone worse than other people."

When does health and safety justify discrimination?

The service provider or employer can justify less favourable treatment, or a failure to make an adjustment, if it can be shown that making such adjustment or treating the disabled person the same would endanger the health and safety of any person, including the disabled person. The EHRC code of practice 'Rights of Access' gives the example of not allowing an amusement park visitor who needs walking sticks onto a high-speed ride, as they would not be able to keep themselves safe on the ride. The Employment and Occupation code of practice explains that it would be allowed to reject an applicant with severe back pain for a job as a carpet fitter, where the work would make his back condition worse.

However, stereotypical views about what a person with a particular condition is capable of – especially conditions such as epilepsy and diabetes, which many people are able to control sufficiently to lead normal lives – can't be used to justify discrimination, and the codes of practice are full of such examples. For examples in your business area, look at the appropriate code of practice listed on the EHRC's website.

What are reasonable adjustments?

DDA (1995) section 6 provides examples of reasonable adjustments which may be made to allow a disabled person to carry out their job:

• Modifying equipment or premises
• Altering working hours
• Providing different work or a different place of work.

Section 21 gives examples of adjustments service providers should consider to allow disabled people to access a service:

• Remove a physical feature
• Provide an alternative route
• Make the service available in a different way.

Further examples of reasonable adjustments are provided in the EHRC's codes of practice and in HSE's disability case studies.

What about the extra cost?

Many adjustments that you make for disabled people will have benefits for all – for example, better lighting in a dark corridor to help partially sighted employees could result in fewer trips for all employees. Also, clearer emergency instructions in simple language for those with learning difficulties will be clearer for everyone.

In addition, grants are available to help with the additional costs of introducing a disabled person to the workplace.

Case study

The 2006 Employment Appeal Tribunal case of Surrey County Council v Hay provides an example of how an employer can face large legal bills if they fail to demonstrate they have done all that's reasonably practicable to make adjustments.

The tribunal made it clear that, under section 6 of the DDA, there should be an examination of the risks, and that this should involve a combination of an examination of the medical condition and of the way in which an individual could work in the job if suitably adapted. Surrey County Council appealed because the original Employment Tribunal ruled that their risk assessment had not been 'formal'. Although they won on appeal, and won again at the Court of Appeal, it would have saved them many months of legal wrangling had their original assessment been more systematic. The Disability Rights Commission concluded with a clear message to employers: consult with the disabled person and assess what adjustments may be required.

IOSH links

A healthy return - good practice guide to rehabilitating people at work:  

Other links

EHRC Codes of practice

HSE disability area

Disability Equality Duty:  Disability Rights Commission website 

Do the Duty