The definition of disability has the following key elements: (i) there must be a physical or mental impairment. Problems have arisen over the dividing line between physical and mental impairment. The right approach was set out by the Court Of Appeal in the case McNicol v Balfour Beatty Rail Maintenance Ltd2, here it was held that the term 'impairment' bears its ordinary and natural meaning, that it 'may result from an illness or it may consist of an illness' [Smith & Thomas], and, crucially, that 'it is not necessary to consider how an impairment was caused.
' [Smith & Thomas], (ii) the impairment must have a 'substantial' effect, (iii) the impairment must have a 'long-term' effect, (iv) the impairment must have an adverse result on a individuals capability 'to carry out normal day-to-day activities', in the case Vicary v British Telecommunications plc, normal day-to-day activities were held to include making beds, doing housework, etc, since they are all activities that many individuals do on a regular basis. Section 4 carries along with the other anti-discrimination legislation by forbidding discrimination again a disabled individual in all areas of employment.
This section makes it unlawful for an employer to discriminate against a disabled candidate for employment in the procedures, which he follows for recruitment. It is also unlawful for an employer to discriminate against a disabled individual 'whom he employs' relative to the terms of employment, the way the employer allows or refuses to allow him to have an opportunity to be promoted in the future, transfer, training or any other additional benefits, or by dismissing him, or subjecting him to any other detriment.
The meaning of discrimination in section 5 of the DDA changes in various respects from that used in other anti-discrimination legislation. The DDA doesn't need a complete comparison to be made, it allows less favourable behaviour to be supported in several situations, it uses an idea of reasonable change in place of indirect discrimination, and it permits positive discrimination supporting disabled individuals. The definition of discrimination in the DDA is consistent with the method taken in the Employment Directive, however some alterations were vital, and the reason being to bring domestic law into line with EC Law.
(a) Less favourable treatment and 'direct discrimination': section 3A(1) states that an employer has discriminated against one of their employees 'if, (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply and (b) he cannot show that the treatment in question is justified. ' [Smith & Thomas]
In the case Showboat v Owens3, it was held that this was discrimination on racial grounds although it was not related to the victim's race, where the white employee refused to obey an order of his employer. Also, in the case of Redfearn v Serco Ltd4, the EAT held it was a dismissal based on racial grounds because race gad played a huge part in the driver's dismissal. The Court of Appeal disagreed with this decision. The fact that racial thoughts had entered into the organizations decision did not mean the driver had been dismissed on racial grounds.
(b) Failure to make a reasonable adjustment: The DDA act imposes a duty on the employer to make reasonable changes where for example a statement, or any other physical characteristic etc, of the building occupied by the employer places the disabled individual in question at a considerable difficulty compared to individuals who are not disabled, in order to avoid that effect. Breach of this duty to make reasonable changes will amount to unlawful discrimination.
In the case, Kenny v Hampshire Constabulary5, the EAT held that the duty by the employer to make reasonable changes is only relevant to job-related arrangements, and it does not broaden the duty to provide a personal carer to help with the personal needs of a disabled employee. The Act does however list seven factors incorporating issues such as cost, effectiveness etc, which must also be taken into consideration in determining whether there is a duty on the employer's part to take such reasonable steps.
[Smith & Thomas] There is an additional kind of discrimination against a disabled individual and this is called 'disability-related discrimination. ' [Hughes, 2004] This type of discrimination arises where an individual discriminates against a disabled individual as an excuse relating to their disability, by acting less favourably towards them compared to how they would treat others to whom that reason does not or would not be relevant to.
This kind of discrimination is far less favourable behaviour, which does not add up to, direct discrimination, and the comparator will be as mentioned in the case of Clark v TDG Ltd t/a Novacold6. This category of less favourable behaviour will only be unlawful if it is not clearly justified, and behaviour will only be justified if the justification for it is both material to the conditions of the specific case and considerable. There are also remedies for unlawful disability discrimination, which are important to take into account.
Complaints must be taken to an employment tribunal and must be brought within 3 months of the act complained about. If the tribunal finds that the employee's rights have been breached, they are able to order the employer to pay the necessary compensation or they can advise the employer to take certain action, which is stated by the tribunal to remove the unfavourable effect of the discrimination. If the employer fails to follow this and they are not justified in why they are not following such actions, the tribunal are able to enhance the award of compensation if it is just and equitable to do so.
In conclusion it can be seen that the DDA has made a positive difference and has had a huge impact on disabled individuals. It has enabled disabled individuals to begin to receive legal safety on a level, which is the same as that presented by other equality legislation. However, a central issue has been that the DDA has concentrated in on a medical instead of a social model of disability. It has been debated that disability rights can have an optimistic influence on identity in a number of ways for e. g. they alter self-perception.
'If truly equal opportunities for disabled people are to be achieved, then the disadvantages created for them by society and the organisation of the labour market must be tackled. ' [Wells, 2003]The DDA and also the ADA request that disabled individuals are seen as full partners in social interaction and they are involved in all forms of social life and not left out at any expense. The disability movement in both the UK and US has adopted a more conventional method to the subject of disability equality and has debated that social justice should be based on redistribution.