Disability Discrimination Update

All personal injury lawyers need to have at least a passing familiarity with the employment protection provisions of the Disability Discrimination Act 1995. We all know that if your client is in employment and suffers an injury that prevents or restricts his ability to work, his prospects of eventually returning to employment are much greater if he does not lose his job.

'Capability' (or rather being incapable of doing the job) is, of course, a potentially 'fair' reason for a dismissal. However, the 1995 Act gave considerably greater protections to employees suffering from a disability. Disability for the purposes of the 1995 Act is defined as "a physical or mental impairment, which has a substantial and long term adverse effect on [the person's] ability to carry out normal day-to-day activities". This impairment must have lasted 12 months, be likely to last more than 12 months, or be likely to be permanent. So far as mental illness is concerned, this must be "clinically well-recognised". Under the provisions of the 1995 Act an employer was not permitted to treat a disabled employee less favourably for a reason related to his disability. Employers were also required to make reasonable adjustments to working "arrangements", unless it was justified not do so.

There have been a number of problems with the 1995 Act. One issue has been the tortuous drafting, which has led to a great deal of case law on nearly every word in key provisions. Furthermore, the remedy is to bring employment tribunal proceedings and legal costs are not normally allowed on top of any compensation award which, as with other discrimination remedies which also depend on complex law, makes it difficult for clients who are not union members or who do not have the benefit of legal expenses insurance to enforce their rights. Furthermore, a number of occupations were excluded and small employers (those with fewer than 15 staff) were also excluded from the scope of the legislation.

On 1 October 2004 the Disability Discrimination Act 1995 (Amendment) Regulations 2003 came into force. Much of the public profile of these changes has been to do with amendments to Part III of the 1995 Act which relates to removing physical barriers to the provision of goods and services to disabled people. This is of course an important change, requiring business to much improve disabled access. However, in the period between 1996 and 2000, nearly nine thousand employment related disability discrimination claims were brought, but only 53 claims were brought under the goods and services provisions of the Act1. It seems unlikely that there will be a big increase in the number of civil claims brought to court for breach of the new provisions relating to removing physical barriers because of the likely level of compensation and the absence of orders for payment of legal costs in the small claims track to which most cases will be allocated.

However, a number of important improvements to the employment provisions were also brought in on 1 October 2004. The small employer's exemption has been removed. The significance of this change should not be underestimated bearing in...

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