Disability Discrimination Act 1995 (c. 50) 1995 CHAPTER 50
ARRANGEMENT OF SECTIONS
Go to Preamble
Part I
Disability
1. Meaning of “disability” and “disabled person”.
2. Past disabilities.
3. Guidance.
Part II
Employment
Discrimination by employers
4. Discrimination against applicants and employees.
5. Meaning of “discrimination”.
6. Duty of employer to make adjustments.
7. Exemption for small businesses.
Enforcement etc.
8. Enforcement, remedies and procedure.
9. Validity of certain agreements.
10. Charities and support for particular groups of persons.
11. Advertisements suggesting that employers will discriminate against disabled persons.
Discrimination by other persons
12. Discrimination against contract workers.
13. Discrimination by trade organisations.
14. Meaning of “discrimination” in relation to trade organisations.
15. Duty of trade organisation to make adjustments.
Premises occupied under leases
16. Alterations to premises occupied under leases.
Occupational pension schemes and insurance services
17. Occupational pension schemes.
18. Insurance services.
Part III
Discrimination in Other Areas
Goods, facilities and services
19. Discrimination in relation to goods, facilities and services.
20. Meaning of “discrimination”.
21. Duty of providers of services to make adjustments.
Premises
22. Discrimination in relation to premises.
23. Exemption for small dwellings.
24. Meaning of “discrimination”.
Enforcement, etc.
25. Enforcement, remedies and procedure.
26. Validity and revision of certain agreements.
27. Alterations to premises occupied under leases.
28. Advice and assistance.
Part IV
Education
29. Education of disabled persons.
30. Further and higher education of disabled persons.
31. Further and higher education of disabled persons: Scotland.
Part V
Public Transport
Taxis
32. Taxi accessibility regulations.
33. Designated transport facilities.
34. New licences conditional on compliance with taxi accessibility regulations.
35. Exemption from taxi accessibility regulations.
36. Carrying of passengers in wheelchairs.
37. Carrying of guide dogs and hearing dogs.
38. Appeal against refusal of exemption certificate.
39. Requirements as to disabled passengers in Scotland.
Public service vehicles
40. PSV accessibility regulations.
41. Accessibility certificates.
42. Approval certificates.
43. Special authorisations.
44. Reviews and appeals.
45. Fees.
Rail vehicles
46. Rail vehicle accessibility regulations.
47. Exemption from rail vehicle accessibility regulations.
Supplemental
48. Offences by bodies corporate etc.
49. Forgery and false statements.
Part VI
The National Disability Council
50. The National Disability Council.
51. Codes of practice prepared by the Council.
52. Further provision about codes issued under section 51.
Part VII
Supplemental
53. Codes of practice prepared by the Secretary of State.
54. Further provision about codes issued under section 53.
55. Victimisation.
56. Help for persons suffering discrimination.
57. Aiding unlawful acts.
58. Liability of employers and principals.
59. Statutory authority and national security etc.
Part VIII
Miscellaneous
60. Appointment by Secretary of State of advisers.
61. Amendment of Disabled Persons (Employment) Act 1944.
62. Restriction of publicity: industrial tribunals.
63. Restriction of publicity: Employment Appeal Tribunal.
64. Application to Crown etc.
65. Application to Parliament.
66. Government appointments outside Part II.
67. Regulations and orders.
68. Interpretation.
69. Financial provisions.
70. Short title, commencement, extent etc.
SCHEDULES:
Schedule 1
— Provisions Supplementing Section 1.
Schedule 2
— Past Disabilities.
Schedule 3
— Enforcement and Procedure.
Part I
— Employment.
Part II
— Discrimination in Other Areas.
Schedule 4
— Premises Occupied Under Leases.
Part I — Occupation by Employer or Trade Organisation.
Part II — Occupation by Provider of Services.
Schedule 5 — The National Disability Council.
Schedule 6 Consequential Amendments.
Schedule 7 — Repeals.
Schedule 8 Modifications of this Act in its Application to Northern Ireland.
An Act to make it unlawful to discriminate against disabled persons in connection with employment, the provision of goods, facilities and services or the disposal or management of premises; to make provision about the employment of disabled persons; and to establish a National Disability Council.
[8th November 1995]
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
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Section 2(2).
SCHEDULE 2 Past Disabilities
1 The modifications referred to in section 2 are as follows.
2 References in Parts II and III to a disabled person are to be read as references to a person who has had a disability.
3 In section 6(1), after “not disabled” insert “and who have not had a disability”.
4 In section 6(6), for “has” substitute “has had”.
5 For paragraph 2(1) to (3) of Schedule 1, substitute—
“(1) The effect of an impairment is a long-term effect if it has lasted for at least 12 months.
(2) Where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect recurs.
(3) For the purposes of sub-paragraph (2), the recurrence of an effect shall be disregarded in prescribed circumstances.”
Sections 8(8) and 25(6).
SCHEDULE 3 Enforcement and Procedure
Part I Employment
Conciliation
1 (1) Where a complaint is presented to an industrial tribunal under section 8 and a copy of it is sent to a conciliation officer, he shall—
(a) if requested to do so by the complainant and respondent, or
(b) if he considers that he has a reasonable prospect of success,
try to promote a settlement of the complaint without its being determined by an industrial tribunal.
(2) Where a person is contemplating presenting such a complaint, a conciliation officer shall, if asked to do so by the potential complainant or potential respondent, try to promote a settlement.
(3) The conciliation officer shall, where appropriate, have regard to the desirability of encouraging the use of other procedures available for the settlement of grievances.
(4) Anything communicated to a conciliation officer in a case in which he is acting under this paragraph shall not be admissible in evidence in any proceedings before an industrial tribunal except with the consent of the person who communicated it.
Restriction on proceedings for breach of Part II
2 (1) Except as provided by section 8, no civil or criminal proceedings may be brought against any person in respect of an act merely because the act is unlawful under Part II.
(2) Sub-paragraph (1) does not prevent the making of an application for judicial review.
Period within which proceedings must be brought
3 (1) An industrial tribunal shall not consider a complaint under section 8 unless it is presented before the end of the period of three months beginning when the act complained of was done.
(2) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
(3) For the purposes of sub-paragraph (1)—
(a) where an unlawful act of discrimination is attributable to a term in a contract, that act is to be treated as extending throughout the duration of the contract;
(b) any act extending over a period shall be treated as done at the end of that period; and
(c) a deliberate omission shall be treated as done when the person in question decided upon it.
(4) In the absence of evidence establishing the contrary, a person shall be taken for the purposes of this paragraph to decide upon an omission—
(a) when he does an act inconsistent with doing the omitted act; or
(b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.
Evidence
4 (1) In any proceedings under section 8, a certificate signed by or on behalf of a Minister of the Crown and certifying—
(a) that any conditions or requirements specified in the certificate were imposed by a Minister of the Crown and were in operation at a time or throughout a time so specified, or
(b) that an act specified in the certificate was done for the purpose of safeguarding national security,
shall be conclusive evidence of the matters certified.
(2) A document purporting to be such a certificate shall be received in evidence and, unless the contrary is proved, be deemed to be such a certificate.
Part II Discrimination in Other Areas
Restriction on proceedings for breach of Part III
5 (1) Except as provided by section 25 no civil or criminal proceedings may be brought against any person in respect of an act merely because the act is unlawful under Part III.
(2) Sub-paragraph (1) does not prevent the making of an application for judicial review.
Period within which proceedings must be brought
6 (1) A county court or a sheriff court shall not consider a claim under section 25 unless proceedings in respect of the claim are instituted before the end of the period of six months beginning when the act complained of was done.
(2) Where, in relation to proceedings or prospective proceedings under section 25, a person appointed in connection with arrangements under section 28 is approached before the end of the period of six months mentioned in sub-paragraph (1), the period allowed by that sub-paragraph shall be extended by two months.
(3) A court may consider any claim under section 25 which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
(4) For the purposes of sub-paragraph (1)—
(a) where an unlawful act of discrimination is attributable to a term in a contract, that act is to be treated as extending throughout the duration of the contract;
(b) any act extending over a period shall be treated as done at the end of that period; and
(c) a deliberate omission shall be treated as done when the person in question decided upon it.
(5) In the absence of evidence establishing the contrary, a person shall be taken for the purposes of this paragraph to decide upon an omission—
(a) when he does an act inconsistent with doing the omitted act; or
(b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.
Compensation for injury to feelings
7 In any proceedings under section 25, the amount of any damages awarded as compensation for injury to feelings shall not exceed the prescribed amount.
Evidence
8 (1) In any proceedings under section 25, a certificate signed by or on behalf of a Minister of the Crown and certifying—
(a) that any conditions or requirements specified in the certificate were imposed by a Minister of the Crown and were in operation at a time or throughout a time so specified, or
(b) that an act specified in the certificate was done for the purpose of safeguarding national security,
shall be conclusive evidence of the matters certified.
(2) A document purporting to be such a certificate shall be received in evidence and, unless the contrary is proved, be deemed to be such a certificate.
DISABILITY DISCRIMINATION CLAIM
We deal with claims on behalf of employees relating to employment matters including advising on a disability discrimination claim. We do not act for employers. Our solicitors are experts in their field and where possible they negotiate settlement failing which they will make application to an Employment Tribunal to resolve any dispute.
The Disability Discrimination Act 1995 makes it unlawful to treat disabled people differently from able bodied people at work or when providing goods, facilities and services or in the provision of renting or buying property. The law states that 'disability' means a physical or mental impairment, which has a substantial and long-term negative effect on the ability to carry out normal day-to-day activities. This definition also covers sensory impairments of sight and hearing, severe disfigurement, cancer, multiple sclerosis and HIV/AIDS as soon as they are diagnosed.
Under the The Disability Discrimination Act 1995 a long term disability must have :-
lasted for more than 12 months; or
be expected to last for that period; or
be expected to last until death if life expectancy is less than 12 months:
An impairment is deemed to affect the ability to carry out normal day-to-day activities if one of the following items is affected :-
ability to use hands, eg for writing or cooking
mobility
memory or the ability to concentrate, learn or understand
physical co-ordination
the ability to lift, carry or move ordinary objects
continence (the ability to control your bladder or bowels)
speech, hearing or eyesight
being able to recognise physical danger
Addiction to alcohol, nicotine or any other non prescription drug along with hay fever, exhibitionism, voyeurism, tendency to steal, set fires, physical or sexual abuse of others and tattoos or body piercing are not covered by the The Disability Discrimination Act 1995 however any subsequent physical damage caused by any of these conditions may be.
It is now unlawful for an employer to :-
discriminate against a disabled person
treat anyone less favourably because of disability
harass a disabled person
victimise a disabled person who takes or assists in legal action because of discrimination
fail to carry out 'reasonable adjustments' to the workplace to enable continuance of work which may include :-
structural alterations to buildings
the supply of special equipment
transfer to a different post or work place
altering hours of work or giving extra time off
Case Number: 2901131/98
The Employment Tribunal Reserved decision between
Applicant: Ms C Ashton and Respondent: The Chief Constable, West Mercia Constabulary
Decision of the employment tribunal held at Shewsbury on: 22 February 1999 to 5 March 1999 26 April and 24 to 27 May 1999 5 July and 7 July 1999
Chairman: Mr S J Williams Members: Dr B Marsh, Mr J Bennett
Representation
For the Applicant: Ms S Harrison For the Respondent: Mr D Jones
Decision
The unanimous decision of the Tribunal is that the applicant was not discriminated against, contrary to section 5(1) or 5(2) of the Disability Discrimination Act 1995; further, the applicant was not discriminated against for a reason based on her sex, contrary to section 6(2) of the Sex Discrimination Act 1975; further, the applicant was not discriminated against contrary to the principle of equal treatment laid down in the Council Directive (76/207/EEC). The applicant’s claims are therefore dismissed.
Representation
For the Applicant: Mr D O’Dempsey, counsel For the Respondent: Mr M Kurrein, counsel
Extended reasons
1. Mr O’Dempsey on behalf of the applicant adduced the evidence of Dr Gould and Clive Webster, in addition to that of the applicant. Mr Kurrein, on behalf of the respondent, adduced the evidence of Jan Bennett, Sergeant Dewerson, Vicki Dobson, Sergeant Lyons, Superintendent Smith and James Spence. All witnesses gave evidence in chief from prepared witness statements. The Tribunal received in evidence a bundle of documents containing pages 1 to 790 to which page numbers in this decision refer. We were also assisted by the submission of agreed documents setting out the chronology of major events and the issues to be determined by us in the case. The Tribunal took the opportunity of visiting the Respondent’s Operations Room and was thereby helped in its understanding of the evidence. The Tribunal wishes to record its gratitude to both counsel for their able assistance in a case raising sensitive issues and for their preparation and submission of their closing arguments, together with supporting materials, in advance of the final day of the hearing.
2. By her Originating Application the applicant complains that the respondent’s dismissal of her with effect from 31 March 1998 amounted to discrimination contrary to the Disability Discrimination Act 1995, discrimination contrary to the Sex Discrimination Act 1975 and/or discrimination contrary to the Equal Treatment Directive (76/207/EEC). By its Notice of Appearance the respondent denies that it discriminated against the applicant as alleged or at all, and it further denies that the applicant had a disability within the meaning of the Disability Discrimination Act 1995 and further asserts that, in view of the fact that the Originating Application was presented to the Tribunal on 25 June 1998, no act or omission of the respondent which occurred prior to 25 March 1998 should be admitted as a matter of substantive complaint, under either the act of 1975 or the act of 1995.
3. The scope of the issues to be determined by us was further considered at an Interlocutory Hearing held on 27 September 1998 and further at a Preliminary Hearing held on 21 January 1999.
4. In the result, the matters for our decision have been summarised in the document “Issues in the Case” and are as follows:
(i) Is the applicant disabled within the meaning of S.1(1) Disability Discrimination Act (DDA). It is suggested that the questions for the Tribunal will include:-
a. does the applicant have an impairment that is either mental or physical?
b. does the impairment affect the applicant’s ability to carry out day to day activities, and does it have an adverse effect?
c. is the adverse effect substantial within the section?
d. is the adverse effect long-term?
(ii) If so were: -
a. the assessments of her work performance;
b. the extension of her probationary period;
c. the recommendation and decision to dismiss her;acts of discrimination contrary to S.4(2)(d) DDA?
(iii) Was there any duty on the Respondent to make adjustments pursuant to S.6 DDA and, if so, what were they, were they made or, if not, has the Respondent justified such failure?
(iv) Has the Respondent justified the treatment in question?
(v) Would the treatment have been justified if the Respondent had carried out such reasonable adjustments as the Tribunal have identified.
(vi) In any event, were the matters at paragraph 2(ii) acts of discrimination contrary to Ss.1 (1)(a) and 6(2) Sex Discrimination Act 1975 and/or the Equal Treatment Directive.
5. In addition to the statutory bases for the applicant’s complaints, we were referred extensively to the Code of Practice for the Elimination of Discrimination in the Field of Employment against Disabled Persons or Persons who have had a Disability, issued under section 53(1)(a) of the Disability Discrimination Act 1995, and to the Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability, issued under section 3 of that Act. We were also referred to the following authorities:
Transsexualism
P -v- S and Cornwall County Council [1996] IRLR 347
M -v- The Chief Constable of West Midlands Police (unreported) ET Decision
Chessington World of Adventures Ltd -v- Reed [1998] ICR 97 EAT
Disability
O’Neill -v- Simm & Company Ltd [1998] IRLR 233
Morse -v- Wiltshire [1998] IRLR 352
Rideout -v- T C Group [1998] IRLR 628
Goodwin -v- The Patent Office [1999] IRLR 4
Kenny -v- Hampshire Constabulary [ 1999] IRLR 76
Clark -v- Novacold Ltd [1999] IRLR 318
Discrimination
Kingston -v- British Railways Board [1982] IRLR 274
James -v- Eastleigh Council [1990] ICR 554
King -v- Great Britain-China Centre [1991] IRLR 513
Glasgow City Council -v- Zafar [1998] IRLR 36
General
Meridian Global Funds Management -v- Securities Commission [1995] 3WR 413
The facts
6. Based on the evidence we heard we found the following facts relevant to our decision:
(i) The applicant was born on 26 March 1951 and until the summer of 1996 she presented and was regarded as a male. For many years, however, she had harboured deep-rooted feelings, sometimes more and sometimes less suppressed, that she was really female. In the summer of 1996 she was diagnosed as suffering from gender identity dysphoria (GID). The applicant has had a varied working career. She was for three years a surveyor in the Royal Artillery. She was passionately interested in mountaineering and worked for time as an instructor. She has worked as an HGV driver, in a wholesale electrical goods business and in her father’s printing business. Before joining the Police Force she was for six years a Special Constable, in which capacity she dealt with over 100 serious incidents. From September 1987 until March 1997 she held the office of Police Constable in the West Mercia Constabulary based at Shrewsbury Police Station. Since her time in the Army the applicant has been interested in firearms and pursued this interest whilst she was a constable. She pursued the sport of pistol shooting and competed successfully at European Championship level. She was also skilled at firearms engineering and made and modified pistols for herself and for others. The applicant has developed a keen interest in computing, which she practises at a level which enables her to advise others and to create websites.
Following her diagnosis of GID in the summer of 1996 the applicant determined that she would no longer continue to live as a man and harbour secretly the feelings referred to above, but decided to change her life radically by declaring what she regarded to be her true self to her family, friends, colleagues and employer. She informed the Assistant Chief Constable of her diagnosis and told him that she intended to follow a course of medical treatment which would allow her to live at the conclusion of it as a woman, that is to say she intended to undergo gender reassignment. On 19 August 1996 she wrote an open letter to her colleagues (pages 74 to 77) setting out her position in some detail. Initially, the applicant hoped to be allowed to complete her proposed course of treatment and continue her service as a Police Officer as a woman. At that stage the case of P -v- S and Cornwall County Council [1996] IRLR 347 had been reported and the case of M -v- The Chief Constable of the West Midlands Police was proceeding in the Birmingham Industrial Tribunal but had not been decided. Pending clarification of the law as it applied to transsexuals, the applicant was given a period of compassionate leave, was seen by the respondent’s Occupational Health Physician, Dr Laidlaw, who reported on 28 September 1996 (page 78), and was relieved of normal patrol duties and assigned to clerical tasks, initially in the Child Protection Unit (CPU) and thereafter in the Criminal Justice Support Unit. The decision in M -v- The Chief Constable of the West Midlands Police was promulgated on 20 December 1996.
(iii) The medical treatment which the applicant underwent consisted of the following. She began a course of hormone treatment in June 1996. She began a course of Androcur in February 1997 which continued until about July 1997 when it was stopped because Dr Gould believed it might be causing depression. Dr Gould formally diagnosed depression on 4 August 1997 and prescribed Lofepramine. On 11 November 1997 Lofepramine was stopped but then restarted on 29 November. Zoladex was prescribed in August 1997 and continued until March 1998 when all treatment was stopped in preparation for the applicant’s forthcoming surgery.
(iv) On 23 January 1997 the applicant met Mr Spence, the respondent’s Head of Personnel, as a result of which Mr Spence wrote to the applicant on 7 February 1997 (page 82 to 84) setting out the terms proposed for her future employment by the respondent. In essence, these were that the applicant would resign her office as a Police Constable with effect from 31 March 1997, that she would receive an immediate pension based on her previous service, that she would not be required to work during the month of March and that with effect from 1 April 1997 she would be appointed as a Communications Operator at the maximum point on the relevant pay scale and subject to six months’, rather than the normal 12 months’ probation. By her letter of 9 February (page 85) the applicant accepted those terms. Thereafter, a formal offer was made by the respondent and accepted by the applicant. The applicant had wished to be subject to no probation at all and Mr Spence had originally proposed that the usual 12 months should apply. The period of six months was a negotiated compromise between the two. Mr Spence advised the applicant to keep the terms of her employment confidential and did not himself inform Mrs Bennett, the Divisional Operations Room Manager, under whom the applicant would be working, or anyone else of her salary or length of probation. Mrs Bennett, and the tutor with whom the applicant was initially placed, believed that the applicant was on 12 months’ probation and continued so to believe until the applicant’s initial assessment in July. By his certificate of 24 February 1997 (page 103) Dr Laidlaw certified that the applicant was suffering from gender identity dysphoria and that she was disabled from performing the ordinary duties of a member of the Police Force. This contrasted markedly with Dr Laidlaw’s opinion expressed on 28 September 1996 (page 78), that the applicant was “at present … perfectly fit to carry out the duties of a Policeman.” The respondent at that time was seeking to secure the best possible terms for the applicant’s continued employment and remuneration.
(v) On 7 April 1997 the applicant took up her duties as a Communications Operator assigned to D Squad under the management of Mrs Bennett and being tutored by Kathy Griffiths and supervised by Sergeant Lyons. Ordinarily, candidates for the post of Communications Operator are required to undergo an assessment at the Force Headquarters Assessment Centre before taking up their appointment. The applicant did not do so, but did undertake such an assessment on 10 April. Her results are shown at pages 132ff. The applicant scored four Grade 3s, which was below the standard expected to meet the requirements of the post in question (page 132). If Mr Spence had seen the results of that assessment before the applicant was appointed, then it is very doubtful whether she would have been appointed. Mr Spence assumed that the applicant’s previous experience as a Constable meant that she would be able to cope with the demands of the Communications Operator’s role.
(vi) On 7 July 1997 Sergeant Lyons conducted an assessment of the applicant’s progress during her probation (page 264-75). The results of that assessment were not satisfactory. The complaints about the applicant’s performance which were made at this time, and continued to be made thereafter, were that she was slow in her responses to instructions, she was frequently forgetful and exhibited poor concentration with the result that her records of information given were inaccurate. It was said that she had difficulty communicating with others because she was unwilling to raise her voice to shout across the room. It was also complained that she was unable or unwilling to make records of incidents directly on the computer without first writing notes in hand. It was also complained that she seemed unable to the required degree to work “multi-functionally”, that is to say performing various of the procedures required in the Communications Room simultaneously. The Tribunal had no reason to think that Sergeant Lyons had any covert or otherwise improper motive for assessing the applicant as he did. In the light of the evidence we heard we accepted that the assessment was fair and the shortcomings identified in it were explicable by a combination of factors, namely the side effects of the drug therapy which the applicant had embarked upon, her depression (which, although not yet diagnosed as such, was beginning to manifest itself), the stressful environment of the Communications Operations Room, the further stress of the applicant having to prove herself and the still further stress caused to the applicant by her undergoing a major life change. The view that there were genuine and serious shortcomings in the applicant’s performance at that time is also supported by the evidence of the anonymous, and therefore unbiased, assessment at the Headquarters Assessment Centre (page 133ff) referred to above. At this stage the applicant had not suggested to the respondent that any lack of performance on her part might be due to her treatment or the side effects of it. In particular, it is noteworthy that the applicant’s job-holder’s comments on her assessment (page 270 to 272) do not suggest that her treatment regime was having any adverse effects on her. On 8 July the applicant met Sergeant Lyons and Mrs Bennett in the Staff Club to discuss her assessment. Subsequently, on 10 July she gave her comments, as noted above. On 11 July she met Mrs Bennett again to discuss the assessment, on which occasion Mrs Bennett informed the applicant that she would be requesting an extension to her probation period in order that steps might be taken in an effort to address the areas of concern (page 275). The system in operation required Mrs Bennett either to confirm a candidate in post or to extend the candidate’s probation two months before the end of the probationary period. Mrs Bennett formalised her request for an extension of the applicant’s probation by her letter of 16 July (page 180) and ultimately her probation was extended by a further six months, of which the applicant was informed on 4 August (page 188 to 189).
(vii) Meanwhile, another matter raised its head. When the applicant resigned her office as a Constable, a leaving card was presented to her signed by many of her colleagues, including a PC Jeff Morris who wrote on it words to the effect that he wished to be the first to “have a kiss” from the applicant. In April the applicant wrote a note to PC Morris saying words to the effect of “where is my kiss?” which note was given to PC Morris by Kathy Griffiths. PC Morris misunderstood the origin of the note and said “anytime Kathy”. When it was pointed out to him that the note was from the applicant and not from Kathy Griffiths, PC Morris blushed and left the room. Three months later, in early July Kathy Griffiths recounted the event to Sergeant Lyons in the Staff Club and was overhead doing so by D S Ingham, who later made fun of PC Morris over it. This in turn, was overheard by Mrs Bennett, who saw fit to report the matter to Vicki Dobson. PC Morris made no complaint, putting the matter down to what he himself had written on the applicant’s card. He was absolutely right. D S Ingham was spoken to by an Inspector and warned about his future conduct. The Tribunal concluded that this was an extremely trivial incident, originated by P C Morris himself and brought up three months after the event after being overheard twice. This matter then became the subject of an allegation of sexual harassment by the applicant against P C Morris. The applicant was interviewed about it on 16 July (page 175ff).
(viii) In the same interview (page 176ff) another allegation of sexual harassment by the applicant was also brought up. During a telephone conversation between the applicant and P C Lainchbury, an officer on patrol, the applicant commented “I am still waiting for a kiss”. This was overhead by Kathy Griffiths, the applicant’s tutor, and reported to Mrs Bennett. Mrs Bennett reported it to Vicki Dobson. PC Lainchbury made no complaint. The view of the Tribunal was that this also was a very trivial matter which might ordinarily not even have merited further action. These were not matters of substantive complaint before us. It was conceded that they could only be of relevance to us as material on the basis of which we might draw inferences as to the respondent’s reasons for treating the applicant as they did in the case of the substantive complaints. The Tribunal accepted that Mrs Bennett and Vicki Dobson found themselves in a sensitive situation. They knew that there was a background of some personal comments being directed at the applicant by some of her colleagues. The applicant herself referred to this in her comments on her Assessment (page 271). Sergeant Lyons also gave evidence about it and gave, examples to us of comments which he had heard but, out of sensitivity to the applicant did not pass on to her. We took the view that that background could well explain why Mrs Bennett and, in due course Vicki Dobson, took the view they did of the two allegations of sexual harassment and wished to warn the applicant that ill-thought out remarks by her could give offence. In that way the climate of adverse comment directed at the applicant might be made worse, to the applicant’s detriment.
(ix) When she had started work in the Communications Room the applicant had continued to use a toilet adjacent to the CPU. The applicant, being aware of the sensitive issue of toilet usage, had suggested this arrangement herself. The applicant was upset at being accused of sexual harassment by her managers, and in apparent response to it, decided to change her practice and start to use the ladies’ toilet adjacent to the Communications Room. She did not make clear her intention to do this in advance. That in turn led to complaints from some of her female colleagues in the Operations Room. Whilst the Tribunal could well understand the applicant’s dismay at the suggestion that she had sexually harassed colleagues, we nevertheless took the view that her reaction was an insensitive response by her to her irritation with management and, moreover, was calculated to lose her goodwill amongst colleagues. The applicant was subsequently spoken to about this on 30 July by Mrs Bennett and Mr Bradburn, the Divisional Personnel Officer (page 182). Out of sensitivity to the applicant, evidence concerning the complaints was given in writing to the Tribunal. Again, this not a matter of substantive complaint for our decision. It suffices to say that the Tribunal did not think that there was any real substance to the applicant’s colleagues’ complaints concerning her use of the toilet and we are quite sure that the matter could easily have been resolved if a little more tact and thought had been brought to bear. We were, however, satisfied that in tackling the applicant about her use of the ladies’ toilet, the respondent was not itself harassing or bullying her. Mrs Bennett had received complaints, however insubstantial or unfounded they might be, from colleagues of the applicant who plainly regarded the issue with some seriousness. That was a sensitive matter which Mrs Bennett had to take up as a manager and which it was difficult to take up without risking causing some embarrassment either to the applicant or to the complainants. Mrs Bennett frankly said that she shared some of the complainants’ concerns. Again, this was a matter which could only be of relevance to us if we were minded to draw inferences as to the true reason for the respondent’s treatment of the applicant.
(x) On 31 July complaints from the Oswestry Station concerning the applicant’s performance as a Controller were transmitted by Sergeant Jones to Inspector Broomfield (page 184ff). On 31 July and 1 August the applicant was absent from work due to sickness consisting of a high temperature (page 409). On 4 August at the meeting at which the applicant was told of her extended probation, the applicant alleged that she had been bullied by Mrs Bennett over the allegations of sexual harassment and in the way that she had been spoken to concerning her use of toilet facilities (page 189). On 6 August a further complaint was received concerning the applicant’s performance, this time from PC Cebo at the Church Stretton Station (page 190).
(xi) On 7 August Mr Spence wrote to the applicant (page 199) formally advising her of the extension of her probation by a further six months until 1 April 1998. On the same day the applicant submitted a letter invoking the Grievance Procedure in regard to her appraisal, a further letter invoking the Grievance Procedure in regard to the extension of her probation period, a further letter confirming her verbal complaint concerning the allegations of sexual harassment made against her by Mrs Bennett and alleging that the latter’s questioning of her concerning her use of toilet facilities was discriminatory and oppressive, and a further letter confirming her verbal complaint to Chief Inspector Charteris that confidential information concerning her had apparently been passed to a local newspaper from, as she alleged, a source within the respondent (pages 200 to 202a). On 8 August a Return to Work Proforma was completed following the applicant’s two days’ absence on which it was noted “Claire has seen her doctor regarding high temperature and has been advised that it may be triggered by depression. The timing of which coincided with other problems at work” (page 409). On 11 and 13 August meetings were convened at which the applicant’s grievances and complaints were further discussed.
(xii) On 24 August a further complaint was received from the Oswestry Station regarding the applicant’s performance as a Communications Operator (page 213ff).
(xiii) On 9 September Vicki Dobson met the applicant to discuss the results of her investigation into the applicant’s grievances and complaints (page 226-7). The applicant was advised that she might take the matter further if she wished. She considered doing so but in the end did not.
(xiv) With effect from 26 September the applicant was transferred from D Squad to A Squad where she was placed with Sophie Warren as her tutor. The supervising sergeant on A Squad was Sergeant Dewerson. Sergeant Dewerson advised Sophie Warren to keep notes on matters relevant to the applicant’s progress, which notes he saw from time-to-time. The purpose of this transfer was to afford the applicant an opportunity to start afresh with new colleagues.
(xv) A further complaint was received concerning the applicant’s performance as an Operator in the relation to an incident which occurred on 20 October (page 299-40). This complaint emanated from the Shrewsbury Station.
(xvi) On 25 October Sophie Warren noted that she and Sergeant Dewerson had spoken to the applicant privately with reference both to the recent complaint and to the applicant’s progress generally since her transfer to A Squad. The applicant was told that her performance was still not satisfactory. The applicant became upset. She said that she was currently taking anti-depressant tablets and attributed the need for these to the reports and appraisals that she had from D Squad. She said that she felt she could just put her head on the desk when she came into work because she was so tired of all of this, and the tablets and other medication she was on. Sophie Warren expressed the view that there was simply too much going on in the applicant’s personal life for her to be able to cope with a challenging job as well and concluded “I don’t think the Coms Room is the place for Claire to be”. The Tribunal accepted that these notes were not written for Sophie Warren’s exclusively private purposes, but were in all probability seen by Sergeant Dewerson and very probably others.
(xvii) On 11 November further complaints were received relating to the applicant’s performance of her duties (page 251-2).
(xviii) On 13 November Mrs Bennett reviewed the applicant’s progress in a memorandum to Superintendent Smith, enclosing numerous appendices, and concluded “unfortunately we, as individuals or as an organisation are unable to identify or provide any training which would address these areas (the areas of complaint). I therefore respectfully request that consideration be given to the termination of Claire’s employment with West Mercia Constabulary.” (page 257 to 283). On the same day Vicki Dobson wrote to Superintendent Smith saying that she had seen Mrs Bennett’s report and fully supported her recommendation (254-5). On the same day Superintendent Smith transmitted those two reports to Mr Spence, saying “I am now of the view that all avenues of help are exhausted and in the interests of the efficiency of my division, Claire’ services must be dispensed with.” (page 256)
(xix) On 18 November the applicant spoke to Sergeant Dewerson concerning the apparent side effects of her drug therapy, referring to her anti-depressant tablets, saying that a symptom of depression was weepiness, pointing out that she was on three different types of tablets of which the side effect were drowsiness (page 287).
(xx) On 25 November 1997 the applicant and others met Mr Spence (page 307Aff). The applicant told Mr Spence that she was on anti-depressants which made her drowsy and that her emotional life had affected her performance. Mr Spence noted that Jan Bennett’s concern was with the morale of the other operators in the Squad. Mr Spence noted (page 307D) that he wished to seek the views of the applicant’s GP concerning the impact of her medication on her multi-functionality and her speed. By her letter of 26 November (page 308ff) the applicant responded to that meeting saying, inter alia, that she was aware that at times she appeared emotionally distressed and had explained the reason. She concluded by saying at when she was permanently retired because of GID, she was redeployed to her present position and that no attempt had been made during that period to ascertain what her continuing treatment entailed or what possible effect it could have on her work. At pages 311 to 317 we were shown statistics purporting to demonstrate comparative speeds of work of various Operators. We found the statistics unhelpful and drew no conclusions from them.
(xxi) On 27 November 1997 a complaint was received from the Whitchurch Station concerning the slow speed and inaccuracy of the applicant as an Operator (page 318-9).
(xxii) On 28 November 1997 Mr Spence wrote to the applicant (page 320-21) recording that her Divisional Managers had concluded that her services should be dispensed with, and that he was satisfied that five of the seven concerns which had been communicated to the applicant were well-founded. These were:
(i)
An inability to work multi-functionally.
(ii)
The recording of inaccurate details on OIS.
(iii)
The lack of direct recording of incident details.
(iv)
An unacceptable speed of incident creation.
(v)
A lower than average OIS incident workload.
Mr Spence went on to note the applicant’s concerns regarding the side effects of medication and/or the consequences of ceasing to take some medication and said that he needed to obtain medical advice from the Force Medical Officer on these issues and that the latter would no doubt wish to contact the applicant’s GP. He enclosed a medical consent form. Mr Spence concluded that it would be unwise for the applicant to continue work until the question of medical issues affecting her performance had been resolved and therefore advised her that she should not attend for work until further advised and that she would be treated as on special leave on full pay - not sick leave. The applicant was assured that whatever the outcome of Mr Spence’s deliberations her probationary period would be honoured until 31 March 1998. On 2 December the applicant replied to Mr Spence, asking that he forward a further medical consent form so that she might authorise Mr Spence to approach her consultant psychiatrist. No consent form was ever forwarded and Mr Spence did not contact the applicant’s consultant psychiatrist. On 6 January 1998, acting on behalf of Mr Spence, Miss Southall, Occupational Health Officer, posed two questions for answer by Dr Gould, the applicant’s GP. Dr Gould replied in his letter of 15 January (page 326). The Tribunal was of the view that although the questions posed by Miss Southall were relevant, they were far from exhaustive and not adequate to draw from Dr Gould the information which Mr Spence needed in order to enable him to assess the impact of the applicant’s medical regime on her past performance and on her likely future performance. In particular, no question is asked about the applicant’s then present condition or her prognosis. Mr Spence did not see the questions posed to Dr Gould, he see Dr Gould’s reply in full. Instead, Miss Southall relayed to Mr Spence in her memorandum of 3 February (page 332) a summary of what Dr Gould had said and his concluding paragraph.
(xxiii) Mr Spence discussed the matter with Dr Laidlaw, the Force Medical Officer, on the basis of the summary he had received. He did not ask Dr Laidlaw to see the applicant again. On 23 February (page 333-4) Mr Spence wrote to the applicant setting out in part the summary of Dr Gould’s report which he had received, noting that he had discussed the applicant’s case with Dr Laidlaw and concluded that, whilst he was satisfied that the applicant’s medication had had some impact on her performance as a Communications Operator, the overall concerns expressed regarding the applicant’s performance were well-founded. Mr Spence had therefore decided that he should accept the recommendation that the applicant not be confirmed in post at the end of her extended probationary period. The applicant was given notice that her appointment would therefore end on 31 March 1998 on the grounds of “compatibility”. The Tribunal accepted Mr Spence’s explanation that the word “compatibility” was used in error and should have read “capability”. The Tribunal did not accept that anything sinister underlay the use of that word.
(xxiv) On 6 March the applicant’s trade union submitted an appeal on her behalf, supported by a Statement of Case (page 336) in which it is said that at the time of transition from being a Police Office to a member of the support staff the applicant “was not given a skills audit in order to determine the most appropriate position to deploy her into”. Reliance was also placed on the high stress level in the Communications Room and it was argued that the impact of the applicant’s medication on her work had not been fully appreciated. Because of her length of service as a civilian staff member, the applicant did not enjoy an automatic right of appeal, but the respondent entertained her appeal nevertheless. Prior to the hearing of the appeal a report dated 31 March 1998 from the applicant’s consultant psychiatrist, Dr Russell Reid, was submitted (page 342-3). A further report of the same date was sent by Dr Reid to Dr Gould (page 553). No allegation was made on behalf of the applicant at her appeal that she had been the subject of discrimination on the grounds of disability or sex. The applicant told Dr Reid that she intended to claim that her dismissal was unfair. Dr Reid noted that as at the date of his consultation, 27 March 1998, the applicant was “psychologically stable and well with no sign of depression”. The applicant’s appeal was heard by Mr Neyroud on 24 April and by his letter of 29 April 1998 (page 406) that appeal was dismissed.
(xxv) An integral part of the applicant’s preparation for gender reassignment was that she should undergo a period of 12 months, known as the “real life test”, in which she would live and work exclusively in the female role before proceeding to irreversible surgery. In the applicant’s case that period coincided with her 12 month’s probation as a communications operator. The applicant commenced taking hormone treatment in June 1996 when Dr Russell Reid prescribed a trial of Ethinyloestradiol (confirmed in Dr Reid’s report to Dr Gould of 27 June 1996 at page 546). From about February until July 1997 the applicant took Androcur tablets; these were stopped by Dr Gould Who thought they were making her depressed. Androcur was replaced by Zoladex injections which are also reported to cause depression, dizziness and headache. The applicant continued taking Zoladex into the early part of 1998 before ceasing all medication on 1 March prior to her surgery. On 4 August 1997 Dr Gould diagnosed the applicant as suffering from depression and prescribed Lofepramine. Lofepramine was stopped on or about 11 November and re-started on about 29 November 1997. As already noted, Dr Reed found no evidence of depression in March 1998.
(xxvi) It is a feature of work in the Communications Room that “multifunctionality”, so-called, is required of those working as Operators there. From time to time Operators are required simultaneously or in quick succession to communicate by means of radio and telephone with officers on patrol and at the same time to interact with a computer terminal by reading messages which appear on the screen, and by typing on the keyboard. In addition, from time-to-time it may be necessary for operators to communicate with other operators in the Communications Room by shouting to them. The work is by its nature spasmodic in that periods of relative quiet may be succeeded by periods of hectic activity. The Tribunal was able to gain a helpful insight into the nature of the work undertaken in the Communications Room in the course of a short visit during the hearing.
7. Our conclusions on the factual issues before us were as follows. There was a persuasive body of evidence that notwithstanding her excellent prior performance as a Police Constable, the applicant did not perform at the expected level after her transfer to the position of communications operator. The concerns and complaints about her performance expressed by officers came from different sources in different stations and were in most cases well documented and, at least in some cases, accepted by the applicant to have been grounded in fact. The anonymous assessment carried out at Headquarters suggests, albeit after the event, that the applicant perhaps did not have the qualities required for success in this post in sufficient degree to make it a wise move to transfer her into the Communications Room. The decision of Mr Spence so to transfer the applicant was based on the best of motives and intentions and we reject entirely any suggestion that the applicant was “set up to fail”. In the early days, just before and just after the applicant’s transfer into the Communications Room, she was full of praise for the support she had from fellow officers and, in particular, from Mr Spence. We accept that Mr Spence took the course he did because it seemed to him that it was the best way to meet the applicant’s desire to remain working for the respondent and to enable her to continue to earn at the best possible level whilst she did so. Whilst it must have been obvious to all around her that the applicant was going through a difficult emotional stage in her life, we do not think that that alone was sufficient to explain satisfactorily the applicant’s poor performance in her new role. It was not until October 1997 that the applicant began in her conversations with others at work, for example, Sophie Warren and Sergeant Dewerson, to suggest a link between her poor performance and her medical regime. The assessment of the applicant’s performance in July 1997 was carried by Sergeant Lyons. There was no evidence before us that in assessing her as he did, Sergeant Lyons acted out of any improper motive at all. We conclude that the assessment was fairly and properly carried out and that it reflected Sergeant Lyons’ honest views on the applicant’s then state of progress.
8. After the assessment of July 1997 the respondent reasonably and on proper grounds concluded that the applicant could not realistically be expected to achieve an adequate level of performance in her new role within the initially contemplated probationary period of six months. Accordingly, the respondent determined to extend that probationary period to the 12 months usual for all other probationers at that time. Lyn Gibb, another probationer who started at the same time as the applicant, and who had been an officer in the British Transport Police, had to do 12 months’ probation from the outset. In earlier times, when the standard probationary period had been six months, it was not unknown for probationers to have that period extended if they had not reached a satisfactory standard after six months. There was therefore nothing unique about the way in which the respondent handled the applicant’s case. It was part of the respondent’s strategy for dealing with the applicant’s unsatisfactory standard to date in an attempt to bring her up to the required level of performance. It must be borne in mind that one alternative open to the respondent at that time would have been simply not to confirm the applicant in post at the end of the six months. The Tribunal accepted that the reason for the extension of the applicant’s probation was as stated in the letter of Mr Spence dated 7 August 1997 (page 199). The- applicant accepted that Mr Spence was at all times sympathetic to her position and there is no evidence before us upon the basis of which we could impute any covert or improper motive to Mr Spence. If the respondent, whether in the person of Mr Spence or anyone else, had been antipathetic to the applicant for some improper reason, it would have been far more likely that they would have sought to bring the applicant’s service in the Communications Room to an end at the conclusion of her six month’s probation, rather than to extend it. The extension of probation was not the only part of the respondent’s strategy for dealing with the applicant. She was also transferred from D Squad to A Squad so that she might make a fresh start in her training under a new and experienced tutor, Sophie Warren, and a new supervising sergeant, Sergeant Dewerson.
9. After the applicant’s transfer to A Squad, further complaints were received in October and November. The Tribunal accepted that these complaints were based on the honest views of the complainants and not on any improper motive. Sergeant Dewerson formed the view that the applicant had become withdrawn and uncooperative and her tutor, Sophie Warren, formed the view that the Communications Room was not the right place for the applicant. When, at a late stage, the applicant did suggest that the side effects of her medication and/or ceasing to take some prescribed medication might have affected her performance adversely, Mr Spence took the view that she should be relieved of her duties and placed on special leave. It will be recalled that by that time Mr Spence had received recommendations for the termination of the applicant’s employment from Mrs Bennett, Mrs Dobson and Superintendent Smith. Yet Mr Spence did not take that course in November 1997. In evidence Mr Spence accepted the criticism that the period of three months between his letter of 28 November 1997 and his letter of 23 February 1998 dismissing the applicant was unnecessarily long. He also accepted with hindsight that he had not made all the enquiries of medical experts that he might reasonably have been expected to make, for example by securing a full report from Dr Gould, by taking up the applicant’s offer of a report from Dr Reed and by asking Dr Laidlaw to see the applicant again before giving a final opinion. In the context of a complaint of unfair dismissal, which this is not, those matters might well have been the subject of more extensive criticism but in the context of this enquiry we are concerned to establish the reason why the respondent acted as it did towards the applicant. We concluded that the reason for the recommendation to dismiss the applicant and the reason why Mr Spence ultimately acted upon those recommendations, was that the applicant had persistently failed to perform to the standard required of communication operators and because the respondent, having pursued a number of strategies in an attempt to enable the applicant to achieve the required standard, in the end came to the view that the applicant would never be able to do so.
The law
10. To those facts we have to apply the law as set out in (1) the Disability Discrimination Act 1995, together with the associated Code of Practice and Guidance, and (2) the Sex Discrimination Act 1975 and the Council Directive (76/207/EEC) “the Equal Treatment Directive”.
The Disability Discrimination Act 1995
11. Mr O’Dempsey argued that the applicant was a disabled person within the meaning of section (1) of the Act. The applicant did not have any physical impairment. The applicant was diagnosed as suffering from gender identity dysphoria (GID) which, it was agreed by both parties, was a clinically well-recognised illness. The applicant was also diagnosed on 4 August 1997 as suffering from depression. Depression also, it was agreed by both parties, is a clinically well-recognised illness.
12. The Tribunal accepted that the applicant’s GID was a long-standing condition which had lasted for many years. The Tribunal accepted that the onset of the applicant’s depression predated its diagnosis on 4 August 1997 and was probably a side effect of Androcur which manifested itself in about June/July and was the reason why Dr Gould discontinued that drug in July 1997. Dr Reid reported on the basis of his consultation of 27 March 1998 that the applicant displayed no sign of depression and his impression was that she had been free of depressive symptoms for some months. The applicant therefore suffered from depression from about June 1997 until about December 1997. Mr O’Dempsey argued that we should look at the applicant’s condition “in the round” and over the years, and conclude from the general tenor of her evidence that she had been depressed for many years. He submitted:
“The issue of whether Miss Ashton was suffering from a depression (not having a substantial adverse effect, but having an effect on her) can be settled by reference to the issue of the diagnosis of GID. It is submitted that before that diagnosis on a balance of probabilities she was suffering from a depression, otherwise the GID diagnosis could not have been made, relating to her sex.”
We found no evidence upon which we could draw any such inference. We reminded ourselves that in order for it to constitute a mental impairment within the meaning of the Act, the applicant’s depression had to be a clinically well-recognised illness. We took that to mean an illness which a qualified medical practitioner would categorise as depression and not a generalised feeling of low spirits. On the evidence before us the applicant’s depressive condition lasted less than twelve months and therefore did not have a long-term effect within the meaning of section 1(1) and Schedule 1 paragraph 2 of the Act.
13. The applicant’s depression was a side effect of her treatment for another condition, namely GID. We considered that Schedule 1 paragraph 6 of the Act did not preclude its being considered an impairment producing a disability. We did not have to concern ourselves with the cause of the impairment (Guidance, paragraph 1373).
14. In the judgement of the Tribunal the applicant’s condition of GID did not have substantial adverse effect on her ability to carry out normal day-to-day activities, as defined in Schedule 1 paragraph 4 of the Act. The activities relied upon by Mr O’Dempsey prior to the applicant’s decision in June 1996 to change her lifestyle are mobility and manual dexterity. However, the evidence before us demonstrated that for many years up to and including June 1996 the applicant had not been compromised at all in her, mobility and manual dexterity. She had performed to a high level as a Police Constable and had an enviable record. We did not accept that the fact that the applicant chose not to socialise outside work, preferring to keep herself to herself, because of her condition, amounted to an adverse effect on her mobility. The applicant gave evidence, which we accepted, that towards the end of her Police career she was less able to perform the precision engineering tasks required to make and repair firearms than earlier. However, we did not accept that that level of manual dexterity amounted to a day-to-day activity. The applicant’s move from uniformed patrol duties to clerical duties in about August 1996 was not the result of any effect on the applicant’s ability to perform day-to-day activities but was to avoid publicity and remove the applicant from the public gaze. The applicant has throughout retained her high degree of competence in computing.
15. After the applicant’s decision to change her lifestyle, Mr O’Dempsey argued that there was an effect on the applicant’s speech in that she chose to modulate her voice so as to soften it and make it sound more feminine. That, he argued, was the cause of some of the alleged difficulties of communication whilst the applicant worked in the Communications Room. We could not accept that argument. There was no evidence before us that the applicant’s ability to speak was in any way affected. We could not accept that a conscious decision to alter the way in which one speaks amounts to an effect on one’s ability to speak. We concluded that at no point did the applicant’s condition of GID have any adverse effect on her ability to carry out normal day-to-day activities as defined, and that it was therefore not a disability within the meaning of the Act. We did not consider that Schedule 1 paragraph 6 of the Act was directly in point here either. There was no evidence that the applicant’s condition of GID, untreated, would be likely to have a substantial adverse effect on her ability to carry out normal day-to-day activities. The evidence of the applicant’s previous history was to the contrary. The consequence of the applicant’s treatment, so far as it is relevant, was to cause a side effect, namely depression, which as set out above, we accepted could amount to an impairment within the Act, its cause being irrelevant. Accordingly, we also regarded it as irrelevant whether, as Mr Kurrein argued, the applicant’s depression was brought on by critical events at work, such as her adverse appraisal in July and her being placed on special leave in November. That depression manifested itself in a number of symptoms which the applicant set out in her witness statement at paragraph 1 0 (a) - (c). The Tribunal was of the view that the applicant correctly attributed the symptoms she described to her depression, and not to her gender identity dysphoria. (The applicant’s description of her symptoms is set out in part below where we consider her claim under the Sex Discrimination Act.)
16. So far as the applicant’s condition of depression is concerned, we accepted the evidence of the applicant that that condition did have an adverse effect on her memory and ability to concentrate, which was from time to time substantial. The applicant found difficulty absorbing and following instructions, she was unusually slow to respond on the radio and telephone and from time to time she was seen staring blankly at the screen. In significant respects, however, the requirements placed on a communications officer went well beyond normal day-to-day activities. Each activity performed by an operator, taken separately, might well amount to a normal day-to-day activity, but the striking feature of the work was that a high degree of co-ordination, both mental and physical, was required in order to perform different activities either simultaneously or in rapid succession, whilst maintaining a high degree of accuracy. We were supported in this view by the fact that the former period of six months’ probation had been generally extended to 12 months and the fact that communications operators were the most highly paid civilian employees in the Respondent’s Force. As noted above, we had an opportunity of observing work in the Communications Room.
17. For the reasons set out above the Tribunal concluded that the applicant was at no material time a disabled person within the meaning of section 1 of the Act by virtue of suffering from either GID or depression.
18. Strictly speaking, therefore, no question of discrimination under the Act arises but in deference to the arguments advanced before us we make the following further observations. The applicant alleges that she was subjected to a detriment when the respondent assessed her in the way it did in July and, further, when the respondent extended her probation. She also relies upon her dismissal as an act of discrimination. We accepted that the respondent had a bona fide reason to take each of those steps in relation to the applicant and we have rejected the argument that there was any improper motive for those steps. It follows in our judgement that the applicant was not treated less favourably by the respondent than any other person would have been who had performed as she did at the stage when it took each of those steps.
The Sex Discrimination Act 1975
19. Mr Kurrein submitted that the Act of 1975 had no application to alleged discrimination against a transsexual. He based that argument on the decision in P -v- S and Cornwall County Council and sought to support it by arguing that the legislature would not have made the Sex Discrimination (Gender Reassignment Regulations 1999), which amended the Act of 1975 so as to cover discrimination on the grounds of gender reassignment, if the Act of 1975 already prohibited such discrimination. However, this very point was considered by the Employment Appeal Tribunal in Chessington World of Adventures Limited -v- Reed, where it was held that it was possible to construe the Act of 1975 consistently with the ruling of the European Court of Justice in P -v- S. It was conceded that the Equal Treatment Directive could be relied upon directly by the applicant against this respondent since they were an emanation of the State. This Tribunal is bound by the ruling of the EAT referred to above and, accordingly, we consider that the applicant is entitled to rely upon both the Act of 1975 and the Directive. The applicant relied upon the same three alleged three acts of discrimination as she advanced in her claim under the Act of 1995. These are set out in paragraph 4(ii) above. She also relied on the same supplementary matters (the complaints of sexual harassment and the complaints concerning her use of the toilet facilities) and invited us in like manner to draw inferences from these. It seemed to us that there was some conflict between the ways in which the applicant put her claim under the Disability Discrimination Act, on the one hand, and under the Sex Discrimination Act/Equal Treatment Directive on the other. For the purposes of her sex discrimination claim the applicant alleged that the respondent’s treatment of her was motivated by ill-feeling because of her transsexualism. On the other hand, however, for the purposes of her disability claim she asserted that she was performing poorly in a number of respects but that her poor performance was explicable by her GID and/or her depression and/or the regime of treatment she was undergoing. The central question for us was whether the applicant was indeed performing poorly, the respondent would say incompetently, and if she was, was the treatment of which she complains properly motivated by that poor performance or incompetence, or was it on the ground of her sex as explained by the EAT in Chessington World of Adventures Ltd -v- Reed.
20. In our judgment the evidence that the applicant was indeed performing consistently at a level well below that expected of a successful probationer was overwhelming. The applicant, in her statement to us had this to say:
“I began to repeat instructions, would pause and hesitate and could not take in what was being said to me. I found it difficult to concentrate and the more I tried to rectify things the worse it would become. Because I had no confidence at that stage in my voice I would often be- inaudible. Communicating became a real problem, particularly at work and the more I tried the more confused 1 would get. As the main part of my job involved listening to a problem whilst at the time taking a note and giving instructions to officers on the ground I would often simply grind to a halt in the confusion. It became such that I dreaded going into work because of both the know and the unknown. In particular my trainers instead of realising my difficulties, simply compounded them by getting irritated with me which would simply make me worse. When out I would avoid speaking to people as much as possible and would arrange my schedule so as to minimise the possibility of having to speak to people unless it was unavoidable. Whereas before, as a police officer, I would instinctively and through training know what sort of questions to ask to clarify matters, I could no longer do this. I had no idea what to ask. In trying to work out what to ask it would take me an age to do things 1 would normally have done within seconds. So, for example, if I was asked for directions to somewhere familiar I would have great difficulty in explaining clearly where the place was or how to get to it without getting confused. It would also have taken me so long to explain that the enquirer would give up in exasperation.”
21. Mr Webster told us that, whilst preparing for the applicant’s appeal, “… the results (of the Headquarters assessment) were sufficiently bad that I was told that had she been a normal applicant she would have been rejected.”
22. That evidence closely mirrored what Mr Spence said to us, namely that if he had seen the results of the assessment early on he would have had doubts about the wisdom of appointing the applicant to the Communications Room. We repeat the applicant accepted that Mr Spence was sympathetic to her throughout and it was ultimately his decision to accept the recommendation that she be dismissed.
23. In James -v- Eastleigh Council Lord Goff said:-
“… cases of direct discrimination under section 1 (1)(a) can be considered by asking the simple question: Would the complainant have received the same treatment from the defendant but for his or her sex?”
24. In the light of the EAT’s decision in Chessington World of Adventures Limited -v- Reed, it is perhaps necessary to modify that question slightly and to say: Would the applicant have received the same treatment from the respondent but for her declared intention to undergo gender reassignment? To that question, based on the evidence we have set out, we answer unequivocally that she would. From the time in 1996 when the applicant first declared her position and intentions to the respondents they were accommodating and sympathetic to her throughout. Given the efforts which the respondent made to keep the applicant in employment with them it must have been a matter of considerable regret to them, as no doubt it must have been a great regret and disappointment to the applicant, that the effects on her of the depression she suffered, though they were not particularly long-lasting, were sufficiently serious to prevent her from completing satisfactorily her probation as a communications operator. That is why she was assessed as she was, why her probationary period was extended and why, ultimately, it was recommended that she be dismissed, and not because she had declared her intention to undergo gender reassignment.
Since we have-been obliged to construe the Act of 1975 consistently with the Equal Treatment Directive and have rejected the applicant’s claim under the Act, it follows also that we reject her claim under the Directive.
26. The applicant’s claims are, therefore, dismissed.
CHAIRMAN [signature] DATE 24 SEPTEMBER 1999 DECISION SENT TO THE PARTIES ON 27 September 1999. AND ENTERED ON THE रजिस्टर
Employment tribunal upholds direct disability discrimination complaint
In the case of Tudor v Spen Corner Veterinary Centre Ltd , the Employment Tribunal held that an employee suffered direct disability discrimination in breach of S.3A(5) of the Disability Discrimination Act 1995.
This case is unusual as most Disability Discrimination claims are ‘disablitiy related’ discrimination, rather than direct discrimination. During her employment, the Claimant had suffered a stroke and had gone blind and she was therefore dismissed.
The claimant successfully argued her case and the ET found that:
· The company had made generalised and stereotypical assumptions about the Claimant, the duration of her disability and its effects.
· It further found that these assumptions had been reached without meeting with the Claimant, seeking her input or referring to a medical report.
These findings were enough to raise a prima facie case of discrimination and so shift the burden of proof on to the Company to show that it had not discriminated against the Claimant.. Using as a hypothetical comparator an employee with a broken leg who did not know when she would be able to return to work, the tribunal found that, in respect of such an individual, the Company would not have made stereotypical assumptions nor rushed to a decision without a proper consideration of the circumstances. The Company were therefore found to have directly discriminated against the Claimant on the ground of her disability.
Additionally the ET found that:
· The Company had failed in their duty to consider making reasonable adjustments.
· The Company had automatically unfairly dismissed the Claimant, they had failed to provide written reasons for dismissal and failed to comply with the statutory grievance procedure.
It is worth noting that the Company did, however, successfully argue a 50% reduction in compensation for unfair dismissal to reflect the chances of the Claimant failing to remain in employment even if reasonable adjustments had been made.
It is a little known fact that employees can claim both direct discrimination and disability related discrimination and this case highlights how a claim for direct discrimination can succeed.
European court to rule on UK disability discrimination ban
· Mother says son's illness led to unfair treatment · Test case on EU directive and more specific UK law
Clare Dyer, legal editor
The Guardian,
Monday October 8 2007
Article history ·
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This article appeared in the Guardian on Monday October 08 2007 on p14 of the UK news and analysis section. It was last updated at 08:42 on October 08 2007. A test case which could affect the employment rights of thousands of people who care for disabled or elderly relatives will go to the European court of justice in Luxembourg tomorrow. The disability discrimination claim has been launched by the single mother of a five-year-old disabled boy who claims that the law firm she worked for as a legal secretary treated her less favourably than other employees because of her son's disability.
Sharon Coleman, 41, from south London, is the main carer for Oliver, who has congenital respiratory problems and is prone to attacks which cause him to stop breathing.
She claims she was not allowed to return to her old job after maternity leave, was not accorded the same flexibility as mothers of non-disabled children when their children were ill, and was subjected to abusive and insulting remarks. She says the atmosphere got so bad that she quit and went to an employment tribunal claiming constructive dismissal and disability discrimination.
The UK's ban on disability discrimination at work was brought in to comply with a directive requiring EU member states to outlaw discrimination "on grounds of disability".
The problem is that the UK law is more specific, referring to discrimination against a "disabled person".
The employment tribunal has asked the European court of justice to rule on whether the EU directive includes a ban on discriminating against someone because of his or her association with a disabled person. If the court holds that the wider interpretation is the right one, the tribunal will go on to decide whether the existing UK law can be read to include such cases.
If so - and lawyers believe this is the likely outcome - Ms Coleman's case can go ahead. There will also be a knock-on effect in cases of age discrimination, where the same difference exists between the wording of the directive and UK law. By contrast, the Race Relations Act speaks of discrimination "on grounds of race" and the courts have held that this includes discrimination because of an association with someone of a particular race.
Attridge Law, Ms Coleman's employer, denies her claim and the tribunal has yet to hear the evidence from both sides. "Why should I, because I've got a sick child, give up my right to work?" she said.
Her solicitor, Lucy McLynn, of Bates Wells & Braithwaite, said: "Hopefully we've got the potential to do something really ground-breaking that will change the legal landscape।"
UK Disability Discrimination Act
What is the Disability Discrimination Act?
The Disability Discrimination Act (DDA) is a law that makes it illegal to discriminate against disabled people. Under the DDA discrimination can occur when:
a disabled person is treated less favourably than someone else; and
the treatment is for a reason relating to the person's disability; and
this treatment cannot be justified.
The DDA also requires employers, service providers and those in education to make "reasonable adjustment" for a disabled person. Failure to do this may also be discrimination.
What areas of life does the DDA cover?
The DDA covers buying goods, using services, finding somewhere to live, getting a job, education in schools and further education.
I don't feel disabled because of my epilepsy. How can the DDA apply to me?
The DDA does not list conditions by name. Instead it sets out different rules. One rule states that in order to be covered by the Act a person's medical condition has to be long term. Epilepsy is a tendency to have more than one seizure so it is considered to be long term. Even people with epilepsy whose seizures are totally controlled with medication are covered by the DDA. This is because the Act considers what the effects of a condition would be without treatment. Even people who have had epilepsy in the past and no longer have seizures or take medication are covered. This is because the DDA covers people who have had a disability in the past.
What does the DDA mean for people with epilepsy in particular?
In the workplace, the DDA means that there can no longer be `blanket rules' about people with epilepsy. For example, in the past, a job advert may have required all applicants to hold a driving licence, whether or not driving was an important part of the job. This is clearly discriminating against many people with epilepsy. If the employer fails to make a reasonable adjustment, such as accepting the use of public transport or the occasional taxi, this could also be discrimination. There could be other ways an employer could make adjustments for people with epilepsy. For those who have sleep seizures, perhaps being able to start later in the morning would be helpful. And some extra time away from work to attend hospital appointments may also be needed.
From 1 Oct 2004 service providers may have to make other 'reseasonable adjustments' to their premises so that there are no physical barriers stopping or making it unreasonably difficult for you to use their services.
In an educational setting, for a pupil who experiences absence seizures, it may be reasonable to provide some written information at the end of a lesson to help them catch up on things missed.
The DDA also means that people with epilepsy cannot be refused a service, such as having a meal in a restaurant, or a landlord cannot refuse to let property just because someone has epilepsy. These are just a few examples.
The word justified has been used. How can discrimination ever be justified?
Under the DDA there are three main ways that discrimination or failure to make adjustment are `justified'.
the Armed Forces are excluded under the Act — see our information on employment restrictions
Health and Safety: where to employ or provide services to a disabled person would put that person or others at risk (for example allowing someone with uncontrolled seizures to work as a fire fighter).
Unreasonable adjustment: where making adjustment would not be reasonable (for example a night club would not be expected to completely change its lighting so that it no longer provided the atmosphere its customers would expect).
What can I do if I think I have been discriminated against?
Firstly, you may like to try and resolve the situation with the person concerned. If it is about employment, and you are a member of a union, they could support you in this. There is also the Advisory, Conciliation and Arbitration Service (ACAS) or in Northern Ireland the Labour Relations Agency (LRA). These organisations will try to settle the dispute without the need to go to an industrial tribunal. If you decide to take your case to an Industrial Tribunal, again, your union representative can support you. If the complaint is about goods, facilities or services, land or property or post-16 education and you cannot resolve it informally, you can take your case to the County Court (in Scotland, the Sheriff Court). You may wish to contact a solicitor such as Russell Jones and Walker to help with your case.
If the issue is concerning pre-16 education, you should speak to the head teacher in the first instance. If this does not resolve the issue, ask the school or the relevant education authority for their complaints procedure. If you are still not happy, the Equality and Human Rights Commission (EHRC) may be able to take up the case or refer it to Disability Conciliation Service. You may also be able to take your claim to a tribunal. Most claims are heard by the Special Education Needs and Disability Tribunals (SENDIST).
Where can I get advice and further information?
The Epilepsy Action Freephone Helpline can give general advice and information. It also has details of a free Assessment scheme offered by solicitors specialising in the DDA. Call on 0808 800 5050.
The Equality and Human Rights Commission (EHRC) helpline provides information and advice. Their legal department also takes on a limited number of cases each year. Contact them by phone on 08457 622 633..
The Community Legal Service can suggest local organisations, such as the Citizens Advice Bureau or Law Centre, that can provide free legal advice. Their phone number is 0845 608 1122.
SENDIST: Contact by telephone on 0870 606 5750 or by email to mailto:tribunalqueries@sent.gsi.gov.uk.
Citizens Advice Bureau (CAB) offer free, confidential and impartial advice on many issues including legal matters. Find out where your local CAB is by calling 020 7833 2181 or visiting http://www.nacab.org.uk/.
Advisory, Conciliation and Arbitration Service
Labour Relations Agency (Northern Ireland)
The text of the legislation can be found here:
Disability Discrimination Act 1995
Special Educational Needs and Disability Act 2001
Disability discrimination at work
If you believe that your employer has treated you less favourably than others for a reason related to your disability, or if your employer has not made reasonable adjustments for you in the workplace, you may want to consider taking action.
Action to take if you are discriminated against
As a first step, you might want to have an informal discussion with your employer about your needs and why you feel you are being discriminated against. Remind your employer of your rights and their responsibilities under the Disability Discrimination Act.
If this discussion does not provide a satisfactory outcome, you could make a complaint about your treatment through your employer's internal grievance procedure.
If you are still not satisfied, you might want to contact Acas (Advisory, Conciliation and Arbitration Service), or follow the 'Questions Procedure' or make a complaint to the Employment Tribunal.
If you wish to make a complaint to the Employment Tribunal, you must do so within three months of the date of the act of discrimination.
Help and advice from Acas (Advisory, Conciliation and Arbitration Service)
Acas aims to improve organisations and working life through better employment relations. They provide up-to-date information, independent advice, high quality training and work with employers and employees to solve problems and improve performance.
Acas (Advisory, Conciliation and Arbitration Service) (opens new window)
What is the Questions Procedure?
To follow the Questions Procedure you must obtain a Disability Discrimination Act questionnaire.
You need to complete the first part of this questionnaire yourself, setting out the reasons why you feel you have been discriminated against, and ask your employer to comment on your claim. You then need to ask your employer to reply to the questionnaire.
Whether or not you agree with them, your employer's answers in the questionnaire should help you decide if you can settle the dispute or need to make a complaint to an Employment Tribunal.
The DDA questionnaire (DL56) is available from Jobcentre Plus and Citizens Advice Bureaux.
The Employment Tribunal Service (ETS) can give information about tribunal publications, explain how the tribunal system works and answer general queries about tribunal matters. For copies of free ETS leaflets or further information call the ETS enquiry line between 9.00 am and 5.00 pm, Monday to Friday.
Telephone: 08457 959 775
Textphone: 08457 573 722
Employment Tribunals Service website (opens new window)
Citizens Advice Bureau website (opens new window)
Contact your local Jobcentre Plus office (opens new window)
Disability Homepage
Disabled students exempted from ELQ changes (updated on 20 Feb 08)
At its meeting on 24 January, the HEFCE Board considered whether students in receipt of Disabled Students Allowance (DSA) should be exempted from alterations to the equivalent or lower qualification (ELQ) policy. The Board asked the executive to review the recommendation and gave the chief executive the authority to make a final decision. Following this review and after further discussion with the HE sector, HEFCE has decided to exempt students in receipt of DSA from the ELQ policy. This exemption will be in addition to the other proposals for implementing the ELQ policy set out in HEFCE 2007/27.
Disabled students are currently under-represented in higher education.HEFCE hope that this exemption should reduce the extent to which the ELQ policy provides a barrier to their participation. It will also help secure a publicly-funded route for students who become disabled following their first qualification, and who may therefore need to retrain for a new career.
Protection against disability discrimination extended to carers (updated on 1 Feb 08)
In the latest development in the British case of Coleman v Attridge Law, the Advocate General in the European Court of Justice (ECJ) ruled yesterday that treating employees less favourably because of their caring responsibilities for disabled relatives is unlawful. The Advocate General stated that a European Directive regarding equal treatment in employment prohibits ‘disability discrimination by association’ and should apply to British law.
For disability discrimination law to be extended, this initial ruling will need to be confirmed by a panel of ECJ judges later this year. The opinions of advocates are usually upheld. Read the Equality and Human Rights Commission's analysis of events.
The case was referred for guidance to the European Court of Justice (ECJ) last year. Miss Coleman, who is not disabled, complained to the tribunal that she was penalised when her employer refused the flexibility she required in order to care for her disabled son - in effect, that she was being discriminated against due to her association with a disabled person, her son.
HEIs are already reviewing flexible working policies for carers as a result of the Work and Families Act. There are specific grounds on which a request for flexible working can be refused. It may be that carers of disabled people have stronger rights to work flexibly, as their requests may have to be considered more generously, in the same way that an HEI considers a disabled employee's request for reasonable adjustments. The case may also have implications for the provision of services such as the allocation of accommodation.
Accessible childcare...
The Every Disabled Child Matters campaign estimates that the cost of childcare for disabled children can be 5 times that available to non-disabled children – a genuine barrier for parents of disabled children who want to work. A government 'childcare accessibility' project is being funded and piloted in 10 local authorities over the next 3 years, to test ways of meeting the needs of disabled children. Provision of accessible childcare may also be something for HEIs to consider.
HEFCE review of disabled student policy (posted on 16 Jan 08)
In early 2008, HEFCE will be commissioning research to inform equality impact assessment and review of its policy relating to disabled students. This work will include a review of HEFCE’s funding method in relation to disabled students. Read more about HEFCE’s review of its disabled student policy.
HEFCE workforce analysis shows rise in staff declaring a disability (posted on 16 Jan 08)
In its fourth report analysing the make-up of the HE workforce in England, the Higher Education Funding Council for England notes that there was a rapid increase in the number of permanent academic staff disclosing a disability between 2000 and 2004, and a continuing increase to 2006. Numbers of disabled professional and support staff in HE in England have also increased.
Remove requirement for social workers to declare health conditions, says GSCC (posted on 11 Jan 08)
In a move welcomed by the Equality and Human Rights Commission (EHRC), the General Social Care Council (GSCC) has written to the Department of Health recommending that individuals and their employers negotiate adjustments in the workplace where necessary, rather than 'fitness to practice' being regulated by the GSCC. Read more on the EHRC website.
Mental Health at Work: Developing the business case (posted on 20 Dec 07)
The Sainsbury Centre for Mental Health’s eighth policy paper presents a business case for improved support for employees who have mental ill health. Figures for the costs to the UK economy for absenteeism, presenteeism, and re-recruitment are presented. The paper can be downloaded in pdf format free of charge or ordered from the Sainsbury Centre website.
The Office for Disability Issues and Equality 2025 (updated on 20 Dec 07)
The Office for Disability Issues was launched as a result of recommendations in the government report Improving Life Chances for Disabled People. This set out a 20-year action strategy aiming to create equality of opportunity, choice and full social inclusion for disabled people, and has led to the establishment of Equality 2025, a disability advisory network, which will create an effective channel of communication between disabled people and government. The network's name reflects government's aim of achieving equality for disabled people by the year 2025.
All members of Equality 2025 are disabled people. Some members have knowledge of the issues facing disabled people in Scotland, Wales and Northern Ireland so that Equality 2025 can work effectively across the whole of the UK. Read more on Equality 2025’s web pages.
Dr Gary McGladdery joined Equality 2025 in May 2007. A Disability Officer at Queens University in Belfast, he has been employed by a number of organisations in the community and voluntary sector, including Disability Action Northern Ireland. Dr McGladdery has extensive experience in disability research, policy development and legislation. His appointment will provide a vital link to enable disabled people in Northern Ireland to have a voice in disability issues in Westminster.
Equality 2025 held their first public meeting in November where delegates gave their views and suggestions on four key issues: independent living/ user-led organisations; disability hate crime; the UN Convention, and transition into adulthood for disabled people. Equality 2025 will be holding smaller, regional events in 2008.
Update: The ODI Annual Report 2007 Working towards disability equality has been launched.
The report provides an update on the role of the Office for Disability Issues in leading work to deliver the government’s vision of equality for disabled people by 2025.
Website for Access Groups (posted on 20 Dec 07)
In Autumn 2007 the DRC and Disability Wales launched Access Group Resources, which is a website for local access groups and others interested in access matters.
Latest edition of TechDis e-Quality newsletter (posted on 12 Dec 07)
The second edition of e-Quality features a range of hints and tips to make MS Word more accessible, a review of Open Source accessible software and the day-to-day responsibilities of a learning support officer. The e-Quality newsletter is available to download in a variety of formats such as DAISY, MP3, Large Print and PDF. e-Quality Newsletter Website
Award-winning support for disabled students (posted on 10 Dec 07)
At the Times Higher Awards 2007, celebrated in London on 29 November, Middlesex University won the Support for Students with Disabilities award for its London North Aimhigher Disability Programme. The Programme visits schools and colleges and runs information sessions for disabled pupils and students. It has worked with 600 pupils and parents to date. Tailored guidance, disability awareness sessions, attainment-raising workshops and ‘transition schools’ are provided through the Programme.
Highly recommended for the award was SMARTlab at the University of East London, which develops technology for disabled people to assist in their learning and research.
Other contenders for the award were Leeds Metroplitan University; a partnership of Manchester, Salford and Manchester Metropolitan Universities; Queens University Belfast and Southampton Solent University.
Read the awards programme in pdf.
Disabled hate crime law planned (posted on 16 Nov 07)
Inciting hatred against disabled people is to be outlawed under government plans outlined in the Queen's Speech. It will be added to proposals announced in October 2007 to make it a crime to incite hatred against gay, lesbian and transgender people. TUC General Secretary Brendan Barber said: “Evidence shows more and more disabled people are on the receiving end of bullying at work, which is a huge cause for concern. There is no place for this victimisation in the workplace, or in society.” Read the TUC statement on the proposals to outlaw the incitement of hatred against disabled people.
Largest ever DDA payout at Employment Tribunal (posted on 16 Nov 07)
The largest ever DDA payout - £550,500 - was awarded at Employment Tribunal for a man with learning difficulties who was unfairly dismissed when discriminatory redundancy selection criteria were used by Lambeth Council. He was aged 34 when he was dismissed and the award took into account loss of wages until retirement age.
Minister calls on employers to do more for disabled people (updated on 25 Oct 07)
DWP Minister Lord McKenzie of Luton has called on employers to play their part in aiding social inclusion for disabled people by preventing ill-health and injury, and providing appropriate support in the workplace.
Speaking at an RNIB conference on employment retention, Lord McKenzie said: "Increasing the number of disabled people in mainstream employment has the potential to tear down the last barriers to social inclusion for disabled people.
"Just as important as getting disabled people into work, is keeping people in work and preventing them from falling out of work in the first place. Retention and rehabilitation are two of the main aims of the Government's Health, Work and Well-being strategy. The strategy recognises that there is a lot that central government can do. But it also recognises that success requires the support, involvement and commitment of a wide range of stakeholders working together.
"Most importantly, we want employers to develop supportive cultures that allow staff with health problems and impairments to work, making the necessary adjustments to help them do so. Mostly these adjustments will be neither as difficult nor as expensive as people think. But clearly we have an important job ahead to engage, educate and support employers.
"I believe the business case for helping people to remain in or return to work is easily made - both for Government and the private sector."
Update
The government issued a call for evidence on 11 October. People and organisations are encouraged to contribute to the consultation at http://www.workingforhealth.gov.uk/ or to take part in a series of events around the country which will be hosted by Dame Carol Black, the Government's first National Director for Health and Work. She will provide her recommendations to Ministers in early 2008.
Dame Carol is seeking answers to the following questions:
* How can we keep working age people healthy and how can the workplace be used to promote health?
* How can people best be helped to remain in or quickly return to work when they develop health conditions including chronic disease or disabilities?
* How does the age of the person affect the support that is needed?
* How can we encourage action to improve employee health?
* What underlies the apparent growth in mental health problems in the working age population and how can this be addressed?
* What constitutes effective occupational health provision and how can it be made available to all?
* What would be the impact on poverty and social inclusion of a healthier working age population?
* What are the costs of working age ill-health to business and what are the benefits to companies of investing in the health of their staff?
Vocational rehabilitation task group
As part of the initiative, a task group has been established to gather and assess data, including costs and benefits, on reasons why occupational health services are not provided by some employers. It will look at methods such as tax relief, products and tools which might incentivise employers to provide such services.
Mental illness at work: confronting the stigma (posted on 25 Oct 07)
One in four people will personally experience a mental condition in their life, but more than half are too embarrassed to tell their employer, a new survey reveals.
Mental illness is increasing in the UK. It is the fastest growing cause of sick leave and the economic cost is vast; some 13 million working days are lost every year due to stress, depression, and anxiety, costing businesses £3billion.
Work and Pensions Minister Lord McKenzie and Health Minister Ivan Lewis called on businesses to tackle the stigma attached to mental health conditions in the workplace, and launched a practical managers’ guide containing advice on how to support their staff.
DRC overview report on the HE sector's disability equality schemes (posted on 18 Oct 07)
A Disability Rights Commission report on their audit of 21 higher education institution disability equality schemes is now available to be downloaded. The report does not name any of the 21 HEIs whose schemes were deemed to be either compliant or non-compliant with the disability equality duty, but it distils both strengths and weaknesses from all 21 schemes in order that the sector as a whole may benefit from this work.
Bookshare.org comes to the UK (posted on 18 Oct 07)
The US organisation Bookshare has been negotiating with British publishers to extend its agreements to make books available to 'print-disabled' people all over the world. At the Techshare event in October it was announced that as a result of these talks, some of the Bookshare material is now available to people here in the UK.
To use the service, users will need to pay $75 to join and then log on. For more information, visit the Bookshare.org.uk website or visit the TechDis website.
What happens next? A report on the first destinations of 2005 graduates with disabilities 2007 (posted on 18 Oct 07)
The Association of Graduate Careers Advisory Services (AGCAS)'s disability task group publishes a report annually, examining the first destinations of graduating disabled students. The report compares the destinations of disabled and non-disabled graduates across a number of occupations and levels. Post-graduates and part-time students are not included in the comparison.
Highlights of the data include:
In 2005, there were 188,775 graduates. Of these, 7% or 13,960, self-identified as disabled during their degree studies. The most common impairment amongst this group was dyslexia, with unseen disabilities the next numerous. Generally, the data shows that graduates with unseen disabilities did better overall than their peers with visible disabilities.
Disabled graduates were slightly less likely to enter professions than their non-disabled peers (22.7% compared to 25.7%). However, a higher percentage of disabled graduates were found in architecture, town planning, quantity surveying, public service and engineering. Only 2.7% of disabled graduates entered health professions, compared to 5.6% of their non-disabled peers. This represents a decline against the 2003 and 2004 data. Entry into teaching for disabled graduates was comparable to the entry of non-disabled graduates.
Graduates with visual impairments had a lower rate of entry into employment after graduation (39.2%), compared both to other disabled graduates (49.6%) and to non-disabled graduates (54.8%).
The lowest rate of employment was shown by graduates with mental health difficulties. Only 36.7% of graduates who had disclosed mental health difficulties were in full-time paid employment, compared to 54.8% of non-disabled graduates. Of those graduates in work, the most popular sector was health and social work with 17.2% of this group employed in this sector.
For more information, visit the AGCAS website. A copy of this report can be downloaded by clicking here.
Involvement for Real Equality (posted 24 Sept 07)
Three higher education institutions have been involved in research into the impact of involving disabled people, carried out by OPM on behalf of the Disability Rights Commission. OPM undertook in-depth interviews with staff in ten public bodies and found that the involvement of disabled people in developing and implementing disability equality schemes had positive organisational consequences, helped create better services, improved overall performance and helped win the hearts and minds of all staff in committing to disability equality. Read the full report, Involvement for Real Equality: the benefits for public services of involving disabled people.
DRC Formal Investigation into Fitness Standards - final report (posted 20 Sept 07)
The Disability Rights Commission has published its final report, Maintaining Standards: Promoting Equality, on its formal investigation into fitness or health standards in the teaching, nursing and social work professions.
ECU welcomes the report and the recommendations it makes for HEIs as educators of disabled students and as employers. Specific areas of work have been recommended, including impact assessment of occupational health provision, research into disabled people's perceptions of barriers to entry and training in the professions studied, and the need to promote positive attitudes to disabled people amongst students. ECU also welcomes the report's references to positive examples of practice in HEIs who have, for example, taken a strategic approach to the successful inclusion of d/Deaf students on social work and healthcare courses.
One of the three main themes of the formal investigation was the disclosure of disability - the approaches taken by disabled people to disclosure, and the policies and practices of organisations in relation to disclosure. ECU will aim to build on the work of the formal investigation through its Disability Disclosure project which is currently underway, and through future work to support the employment of disabled staff, including work with the Occupational Health profession.
Members of CEHR Disability Committee announced (posted 20 Sept 07)
On 10 September, Jane Campbell, Commissioner and Chair of the Disability Committee at the new Commission for Equality and Human Rights (CEHR), announced the appointments of six committee members to the Disability Committee of the CEHR. They are:
Saghir Alam, a lawyer and DRC Commissioner leading on partnership and capacity building
Alun Davies, Adult Care Planning Manager in Adult Social Services and Housing for North Somerset District Council
Andrew Lee, Director of People First (Self Advocacy), a campaigning organisation run by people with learning difficulties
Dianne Mulligan, employment consultant, helping businesses to develop a more diverse workforce
Liz Sayce, Director of RADAR since January 2007. She was previously Director of Policy and Communications at the Disability Rights Commission
Michael Smith, Director of Policy and Compliance for Price Waterhouse Coopers
The Disability Committee will have decision-making powers as well as an advisory role. The CEHR hopes to have strong lines of communication and productive dialogue with grass-roots disability groups and voluntary sector groups.
This Guardian newspaper article gives a clear overview of the challenges facing the new CEHR.
Deafness Matters (posted on 12 Sept 07)
A film, Deafness Matters, featuring 11 young people who are hearing impaired and deaf, has been produced to reach out to other hearing impaired people, organisations involved with deafness and the general public, in order to make them more aware of what it is like to be deaf. Using role-play, the young people acted out scenarios based on their own experiences, including buying a ticket at a train station, a job interview and not being understood, having a driving lesson with an unsympathetic driving instructor and interviewing people in the street, asking questions, such as, “what do you think it is like to be deaf?”. They hope that universities, schools and the Library Service and teachers of the deaf will use the film. Copies of the DVD are available at www.erikastevenson.co.uk/deafnessmatters.htm
Employer Updates from the Employers' Forum on Disability (posted on 3 Sept 07)
The Employers' Forum on Disability produces quarterly downloadable Updates which include guidance on various aspects of employing disabled people, as well as insights into the way other organisations have created inclusive workplaces and worked to promote disability equality.
Employing the full diversity of disabled people (posted on 24 August 07)
Workers with Down's syndrome still face huge obstacles to a fulfilling and rewarding career. In a Guardian newspaper article on 18 August 2007, Matt Keating asked what can be done to change employers' attitudes.
Disability Champions @ Work – call for more Champions! (posted on 9 August 07)
Disability Champions @ Work, the programme for Disability Champions,was launched by the union Amicus in 2003. Disability Champions are trade union representatives with an interest in disability issues, and the project has now recruited over 600 Champions. Champions can be from any background or walk of life, a member of any trade union, and do not have to identify as disabled people. Champions are trained during a 5-day course which is run regularly and endorsed by the TUC. Champions and disabled staff can submit case studies of adjustments they have helped arrange. Why not apply to be a Champion?
Big increase in Disabled Students’ Allowances - Rammell (posted on 26 July 07)
From 2008/09 the maximum amounts of Disabled Students' Allowances (DSAs) for non-medical helpers and for postgraduates will be increased by 60%, Minister for Lifelong Learning, Further and Higher Education Bill Rammell has announced.
The increases will mean that:
The maximum amount of DSA for non-medical helpers will increase from £12,420 in 2007/08 to £20,000 in 2008/09 for full-time students and from £9,315 in 2007/08 to £15,000 in 2008/09 for part-time students.
The maximum amount of DSA for postgraduate students will increase from £5,915 in 2007/08 to £10,000 in 2008/09
Read the government’s full press release.
On 5 July the Disability Rights Commission hosted a live online discussion with Bill Rammell where he was asked about the DSA increases amongst other things, including joined up working between further and higher education and enforcement of the disability equality duty. Read the transcript of the discussion.
Website encourages young disabled people to Get Out and GOJO! (posted on 26 July 07)
The Disability Rights Commission has produced a website, http://www.mygojo.co.uk/, aimed at disabled people aged 16 – 25 who have difficulties or fears about using public transport. The site contains regional accessible event and listings guides as well as journey planning materials. The initiative follows changes to the Disability Discrimination Act introduced in December 2006 which gave disabled people the right, for the first time, to fair treatment on public transport. Read the DRC’s full press release about GOJO.
Help for employers to boost their ‘disability confidence’ (posted on 26 July 07)
Realising Potential is a partnership project between the National Employment Panel, the Employers’ Forum on Disability and Jobcentre Plus. It is funded by the Government’s Office for Disability Issues and forms part of a wider programme of engagement with employers on disability-related issues. The project was piloted in March 2007 and the programme will continue until March 2008.
The project aims to reach 1,000 employers through 22 seminars taking place across the country. These events draw on the experience and knowledge of the National Employment Panel and the Employers’ Forum on Disability and develop the case for the recruitment and retention of disabled people. Employers themselves provide delegates with real-life examples of the positive impact upon their business of being ‘disability confident’, while Jobcentre Plus staff are on hand to present information about local services.
Announcing the project at a conference in Hull, Anne McGuire, Minister for Disabled People, said: “Many businesses already employ disabled people and are reaping the rewards. These events will help more employers to gain a better understanding of disability and the range of support that is available to them from Jobcentre Plus.”
ECU has sent specific details of the events to all our HR and Equality & Diversity contacts in the sector. Not all of this is available online but some more information can be found in the original DWP press release.
Upskilling disabled people can add £35bn to the economy (posted on 23 July 07)
The Social Market Foundation and the DRC have published a report which indicates that improving the skills of disabled people to world class levels by 2020 would boost the economy by £35 billion over 30 years, and bringing the education level of disabled people up to the UK average would add £15bn to the economy. Other benefits would be felt in the reduction of child poverty. The report found that the employment gap between disabled and non-disabled people was 38% without qualifications, narrowing to 15% with postgraduate qualifications. The Commission for Equality and Human Rights is called upon to review this situation in 5 years’ time. An electronic link to the report is currently available, but email info@smf.co.uk for a hard copy.
Report on Disabled Students in London (posted on 13 June 07)
The Greater London Authority has published a report describing issues that affect disabled students in the capital. Entitled Disabled students in London, it is a review of information, research and policy relating to London's disabled students in further and higher education. The report covers student characteristics, their patterns of study and financial support. Themes include educational participation, achievement and student destinations.
Positive Disabled Role Models in FE (posted on 15 June 07)
In May 2007, Unison and UCU launched their ‘Positive Role Models’ campaign. The campaign encourages disabled staff in post-compulsory education providers to contribute a ‘role model statement’ for colleagues, students and the wider sector. For more information about the campaign, visit the Unison website.
Government ‘Employ Ability’ initiative to tackle unequal access to employment (posted on 12 June 07)
Employers should make use of the wide pool of resources and skills that disabled employees have to offer, according to John Hutton, Secretary of State for the Department for Work & Pensions. He has announced a new initiative, 'Employ Ability', which will highlight the benefits of employing disabled people and dispel some of the myths.
Employ Ability will be piloted in Leeds, Bradford, Manchester and Liverpool from September before being rolled out nationally next year and will:
- Challenge negative assumptions about the skills and talent that disabled workers and those with long-term health conditions have to offer, and address misconceptions of risk (such as ‘adaptations to the workplace for the disabled employee are costly’ - in most cases the costs are negligible or cost nothing)
- Build the confidence of employers in recruiting and retaining disabled workers and promote best practice examples of how this is being successfully done to the benefit of business
- Improve employers' access to practical information, making it easier for them to locate relevant sources of advice and support for their situation.
Employ Ability will advise employers not only on best practice in recruiting disabled employees, but also in retaining current employees who become disabled while in the job, in order to prevent those employees from leaving their job.
Increasing the number of disabled people in mainstream employment will help achieve equality of disabled people in society overall, which is one of the ambitions of the government.
Mr Hutton said: "Our ambition must be a world where meeting the needs of disabled people is seen not as a burden but as an opportunity; where discrimination is seen not as an inevitable part of the culture of our country but as a fundamental barrier to our success; and where disabled people themselves are never consigned to accepting second best but empowered and supported to achieve full equality of opportunity and genuine independence and respect within our society."
The announcement of the initiative coincides with the publication of a report by the Social Market Foundation thinktank, which warned that the wasted talents of unemployed disabled people are costing the economy billions of pounds. The document called for a national commitment to reducing the skills gap between disabled people and the rest of the population, backed by legal duties if employers failed to act. Investing in disabled people's skills would be a win/win situation for government, creating massive dividends for the economy and delivering greater equality at the same time.
Workforce barriers for disabled people (posted on 12 June 07)
In a recent survey of employers, Personnel Today discovered that 3 in 5 employ staff with a learning disability and three-quarters of those rate the experience as positive. The main reason cited for not employing people with a learning disability is that they are not targeted during recruitment. This finding is confirmed by a recent Remploy survey of employers. When asked what the barriers were to employing disabled people generally, the most common response was the failure of disabled people to apply for jobs.
Advertising in the disability press, operating the Guaranteed Interview or 'Two Ticks' scheme for disabled candidates, and making use of the Access to Work Scheme should help public sector employers, including HEIs, to recruit people with different types of impairments, including those with a learning disability.
TUC report on DED implementation (posted on 8 June 07)
The TUC recently surveyed its public sector members to find out how the Disability Equality Duty is being implemented in their individual organisations. It received 58 responses, 7 of which were from the HE sector and 15 of which were from FE. Having analysed the survey results, the TUC report that all the HEIs had a Disability Equality Scheme, and could demonstrate some of the best practice in relation to involving disabled people. However, the worst figures for the involvement of trade unions came from the FE and HE sectors. Read the report.
The DRC’s agenda for education and employment (updated on 16 October 07)
In February 2007 the Disability Rights Commission launched a powerful Disability Agenda, which set out its view of the major challenges for public policy in respect of disabled people, and recommendations for how to meet them. The Agenda was produced as a result of a Disability Debate conducted by the DRC over a significant period of time. One challenge identified by the DRC in the Disability Agenda is to increase life chances through learning and skills. This is based on the prediction that, by 2020, 42 per cent of jobs will require a degree level qualification or above, which is contrasted with the current position that disabled people are twice as likely as other people to have no recognised qualifications. A further policy challenge identified in the Agenda is to end poverty and widen employment opportunity. This is based on the knowledge that disabled people are less likely to be in paid work than other people and have lower levels of qualifications, earning less than others with the same qualifications.
Inclusive First Aid Training for Disabled People (posted on 1 May 07)
The British Red Cross has embarked on a three-year nationwide project to develop first aid training for disabled people. The charity is developing a new, more flexible first aid training programme ensuring that trainers work with participants' abilities and learning styles so that essential first aid skills can be acquired. New training resources are in development to support the learning, including a booklet of first aid in pictures and an audio CD of first aid skills. The programme is being made available across the UK in two stages and aims to train 5,000 people across the UK by 2009. HEIs who are interested in finding out more about the inclusive first aid programme should call Emma Rand on 020 7877 7373 or see http://www.redcross.org.uk/standard.asp?id=62606&cachefixer
DRC research reveals public sector prejudice against people disclosing impairments (posted on 12 April 07)
In a report commissioned by the DRC, Disclosing Disability: Disabled students and practitioners in social work, nursing and teaching, a supportive workplace or training environment was found to be key in encouraging disclosure among employees and those training within nursing, teaching and social work in Britain. Yet participants in the study said that major shifts in attitudes and behaviour were needed in the workplace to overcome their fears about disclosure.
Improve your disability knowledge - use DRC's online information service (updated on 16 October 07)
The DRC Library and Information Service produced a series of reading lists on its most popular topics. Topics focused on the DRC's key work areas, such as employment and education. The reading lists are aimed at researchers, students and anyone else with an interest in disability issues. View the themed reading lists on the DRC archive website
Links to some key Disability Equality Schemes (posted on 12 April 07)
Read the Disability Equality Scheme produced by the DfES, which is accompanied by explanatory narratives and action plans. As a public body, the Disability Rights Commission itself produced a Disability Equality Scheme. You may already be familiar with HEFCE’s Equality Scheme as a result of their consultation with the sector; HEFCW’s Disability Equality Scheme is also available online.
Monitoring compliance with the Disability Equality Duty (posted on 12 April 07)
Ipsos-Mori has reported on the findings of its compliance audit of Disability Equality Schemes which was carried out on behalf of the Office for Disability Issues. It should be noted that only 118 out of the total 149 English and Welsh HEIs were included in the audit. Of these 118 HEIs, 86% were found to have a Disability Equality Scheme (DES), which indicates a higher rate of compliance than in the public sector overall, where on average only 72% of public bodies had produced a DES.
Of the HEIs found to have produced a DES, 99% said that they had included a statement about the way they had involved disabled people in the process.
One of the report’s conclusions about the whole public sector is that involvement has been generally skewed towards one-off consultations, highlighting the need to focus on maintaining involvement of user groups in the forthcoming period.
Subsequent to the audit, the DRC has made contact with over 400 public sector bodies whose Disability Equality Schemes could not be located.
Disabled pupils and FE students: My school, my family, my life (posted on 20 Feb 07)
The DRC has published a research report, 'My school, my family, my life', summarising the findings and recommendations of four linked projects on the experiences of disabled children, young people and their families in Great Britain in 2006. One theme of the research examines the ambitions and aspirations of young people - HEI staff may find this particularly interesting.
Improving Information for Disabled People (posted on 7 Feb 07)
The Office for Disability Issues (ODI) has produced a report and guidance on improving information for disabled people, endorsed by the Minister for Disabled People, Anne McGuire. The guidance builds on the principles of the disability equality duty, emphasising the involvement of disabled people in order to establish their information needs, and then to monitor the success of various communication methods. One of the report's key findings was that disabled people particularly need information during life transitions. In the HE context, two important transitions for disabled people are joining an HEI either as a new student or a new employee.
Education and the Single Equality Act (posted on 7 Feb 07)
The Disability Rights Commission has been considering the position of education in the Disability Discrimination Act as part of its work on the forthcoming Single Equality Act. The DRC is proposing a small number of changes to the way claims of discrimination made by students in post-16 education are dealt with. These would replicate recent changes to claims of discrimination involving goods and services, and would create consistency in the way disability discrimination claims across the board. In summary, the changes are:
Post-16 claims should be heard in the employment tribunal (renamed an equality tribunal) rather than in the county court.
The 'questions procedure', which enables a potential claimant to obtain information from the defendant in advance of a hearing, should be extended to cover education cases.
Urgent need to promote positive attitudes to disabled people (posted on 30 Jan 07)
A chapter in the latest British Social Attitudes report paints a gloomy picture about the extent of prejudice against disabled people in Britain, and especially those with mental health conditions. The report's findings highlight the urgent need for the promotion of positive attitudes towards disabled people, which is one of the principles of the disability equality duty that applies to the public sector, including HEIs. The report is published by Sage and can be purchased for £45 from Sage at http://www.sagepub.co.uk/ or from other booksellers.
Promoting disabled leaders (posted on 30 Jan 07)
The DRC has pages devoted to its Leadership Strategy for disabled people. The pages are likely to be useful to HEIs as they work to meet the disability equality duty, particularly the duty to encourage the participation of disabled people in public life.
Consultants' report on draft Disability Equality Schemes (posted October 2006)
ECU commissioned this consultants' report, which summarises feedback given to 30 HEIs on their draft Disability Equality Schemes in Autumn 2006.
Unison reaches Disability Equality Agreement in Further Education
Union branches in HEIs maybe interested in the recent joint guidance on Disability Equality in Further Education that has been agreed between the AoC and FE Trade Unions. This guidance has been developed jointly to equip Colleges to meet their obligations under the Disability Discrimination Act 1995, as amended by the Disability Discrimination Act 2005, the European Framework Directive 2000, and other relevant legislation. See Disability Equality Agreement in FE.
UNISON has advice available on this on its Higher Education Equality Web pages. The guidance contains a checklist and also draws upon their experience of applying this in the further education sector.
The TUC guide, Disability and work: A trade union guide to the law and good practice sets out how unions can work with employers to make the new Disability Equality Duty become a reality. The guide says that the Government has pledged to end discrimination against disabled people by 2025, and says that it will take much to end the disadvantage and unfair treatment experienced by so many disabled people. Advice for Unions on the 2006 Public Sector Disability Equality Duty is a revised edition.
Human Rights Convention for disabled people agreed at the United Nations
Following extensive negotiations that began in 2002, the text of a Human Rights Convention for disabled people has been agreed at the United Nations.
The Convention will the participation of and respect for disabled people in a wide range of areas of society, and covers aspects such as:
Living independently and being included in the community
Equality and non-discrimination
The position of disabled women and children
Access to justice
Education
Health
Work and employment
Participation in political and public life
Participation in cultural life, recreation, leisure and sport
International cooperation
The next stage is for the UN General Assembly to adopt the text formally later this year. Following adoption, it will be for individual Member States to sign and ratify the Convention, with the UK already having signalled its intention to ratify.
Images of Disability website
This website contains guidance on portraying disabled people and disability in communications materials.
The website is primarily aimed at communications professionals and is intended to provide them with support and guidance in producing effective and inclusive depictions of disabled people. It is a cross-government initiative, compiled through extensive consultation with a steering group comprised of representatives from government, the advertising industry and the Disability Rights Commission, which will continue to meet regularly to monitor progress.
The website includes:
An extensive Media Gallery containing examples of positive portrayals of disabled people across a range of media channels
'How to...' guides and templates - from campaign briefing to production
Sample briefs
Tips and techniques about effectively applying a disability message to a campaign
Useful research material
Case studies and articles about disability
The website is located at http://www.imagesofdisability.gov.uk/.
RNIB report: Black disabled people need better representation
A report commissioned by the Royal National Institute for the Blind, entitled Ethnicity, Disability and Work (available to buy from the RNIB), has found that black disabled people are worse off with respect to employment than other people with disabilities. The report also concludes that disability organisations are failing to acknowledge the racial disadvantage they suffer.
In particular, the report argues that there is a tensionbetween the perceptions of disadvantages that arise from disabilism and those resulting from racism. The report recommends that both statutory and voluntary disability organisations should focus on placingrace higher up the agenda and should reconsider their own attitudes and practices to ensure that they meet the requirements of race relations legislation, as well as their obligations under disability legislation. It also calls on the government to establish a quota system for employing black people with sensory disability, and suggests job applications should not include a declaration of disability until after the short-listing stage. Only 15 per cent of black and ethnic minority adults with sensory impairments in the UK are in employment, according to the study.
A Disability Equality Partnership for England (posted January 2006)
Launched in January 2006, a new 'Disability Equality Partnership' has taken on the responsibility of providing support to higher education institutions (HEIs) in promoting equality of opportunity for disabled students in England. Action on Access, the Equality Challenge Unit and the Higher Education Academy will offer an integrated approach to widening participation, learning and teaching, and the promotion of equal opportunities for disabled students.
This partnership approach puts disability support at the centre of the curriculum and brings it into the mainstream, making it relevant to all who work in higher education, rather than the specialist preserve of a few 'experts'.
The three organisations provide support to HEIs in the form of briefings, resources, guidance, events and bespoke advice with reference to disabled students. Please see our disability guidance pages for information on how the Disability Equality Partnership deals with queries from individual HEIs.
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forum home page > information > definition of disability
Definition of disability under the Act
What is a disability?
The DDA gives rights to disabled people who have, or have had, a disability which makes it difficult for them to carry out normal day-to-day activities. The term ‘disability’ covers both physical and mental impairments that have a substantial and long-term (i.e. has lasted or is expected to last for at least 12 months) effect on the person's ability to carry out normal day-to-day activities. Normal day-to-day activities are ones that involve:
mobility
manual dexterity
physical co-ordination
continence
ability to lift, carry, or otherwise move everyday objects
speech, hearing or eyesight
memory or ability to concentrate, learn or understand
perception of the risk of physical danger.
Medical or other treatment and aids, which alleviate or remove the effect of the impairment, are to be disregarded when assessing whether the impairment has a substantial adverse effect on normal day-to-day activities.
The only exceptions are people who wear spectacles or contact lenses – the effect on them must be assessed while the person is wearing the spectacles or contact lenses.
Progressive conditions, which have a slight effect on day-to-day activities but are expected to become substantial effect for short periods but are likely to recur. Severe disfigurement is also classed as a disability.
People who have had a disability in the part which has a substantial adverse effect on their normal day-to-day activities for a period of at least 12 months are also protected by the Act. This is the case even if their disability existed before the DDA came into force and they have now fully recovered.
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The Definition of Disability
BY DEBORAH KAPLAN
Deborah Kaplan is Director of the World Institute on Disability.
The questions of the definition of "person with a disability" and how persons with disabilities perceive themselves are knotty and complex. It is no accident that these questions are emerging at the same time that the status of persons with disabilities in society is changing dramatically.
The Americans with Disabilities Act (ADA) is the cause of some of these changes, as well as the result of the corresponding shift in public policy. Questions of status and identity are at the heart of disability policy. One of the central goals of the disability rights movement, which can claim primary political responsibility for the ADA, is to move American society to a new and more positive understanding of what it means to have a disabilityDISABILITY POLICY SCHOLARS DESCRIBE four different historical and social models of disability: A moral model of disability which regards disability as the result of sin;
A medical model of disability which regards disability as a defect or sickness which must be cured through medical intervention;
A rehabilitation model, an offshoot of the medical model, which regards the disability as a deficiency that must be fixed by a rehabilitation professional or other helping professional; and
The disability model, under which "the problem is defined as a dominating attitude by professionals and others, inadequate support services when compared with society generally, as well as attitudinal, architectural, sensory, cognitive, and economic barriers, and the strong tendency for people to generalize about all persons with disabilities overlooking the large variations within the disability community." Reference 1.
THE MORAL MODEL is historically the oldest and is less prevalent today. However, there are many cultures that associate disability with sin and shame, and disability is often associated with feelings of guilt, even if such feelings are not overtly based in religious doctrine. For the individual with a disability, this model is particularly burdensome. This model has been associated with shame on the entire family with a member with a disability. Families have hidden away the disabled family member, keeping them out of school and excluded from any chance at having a meaningful role in society. Even in less extreme circumstances, this model has resulted in general social ostracism and self-hatred.
THE MEDICAL MODEL came about as "modern" medicine began to develop in the 19th Century, along with the enhanced role of the physician in society. Since many disabilities have medical origins, people with disabilities were expected to benefit from coming under the direction of the medical profession. Under this model, the problems that are associated with disability are deemed to reside within the individual. In other words, if the individual is "cured" then these problems will not exist. Society has no underlying responsibility to make a "place" for persons with disabilities, since they live in an outsider role waiting to be cured.
The individual with a disability is in the sick role under the medical model. When people are sick, they are excused from the normal obligations of society: going to school, getting a job, taking on family responsibilities, etc. They are also expected to come under the authority of the medical profession in order to get better. Thus, until recently, most disability policy issues have been regarded as health issues, and physicians have been regarded as the primary authorities in this policy area.
One can see the influence of the medical model in disability public policy today, most notably in the Social Security system, in which disability is defined as the inability to work. This is consistent with the role of the person with a disability as sick. It is also the source of enormous problems for persons with disabilities who want to work but who would risk losing all related public benefits, such as health care coverage or access to Personal Assistance Services (for in-home chores and personal functioning), since a person loses one's disability status by going to work.Reference 2.
THE REHABILITATION MODEL is similar to the medical model; it regards the person with a disability as in need of services from a rehabilitation professional who can provide training, therapy, counseling or other services to make up for the deficiency caused by the disability. Historically, it gained acceptance after World War II when many disabled veterans needed to be re-introduced into society. The current Vocational Rehabilitation system is designed according to this model.
Persons with disabilities have been very critical of both the medical model and the rehabilitation model. While medical intervention can be required by the individual at times, it is naive and simplistic to regard the medical system as the appropriate locus for disability related policy matters. Many disabilities and chronic medical conditions will never be cured. Persons with disabilities are quite capable of participating in society, and the practices of confinement and institutionalization that accompany the sick role are simply not acceptable.
THE DISABILITY MODEL has taken hold as the disability rights and independent living movements have gained strength. This model regards disability as a normal aspect of life, not as a deviance and rejects the notion that persons with disabilities are in some inherent way "defective". As Professor David Pfeiffer has put it, "...paralyzed limbs may not particularly limit a person's mobility as much as attitudinal and physical barriers. The question centers on 'normality'. What, it is asked, is the normal way to be mobile over a distance of a mile? Is it to walk, drive one's own car, take a taxicab, ride a bicycle, use a wheelchair, roller skate, or use a skate board, or some other means? What is the normal way to earn a living?"Reference 3.. Most people will experience some form of disability, either permanent or temporary, over the course of their lives. Given this reality, if disability were more commonly recognized and expected in the way that we design our environments or our systems, it would not seem so abnormal.
The disability model recognizes social discrimination as the most significant problem experienced by persons with disabilities and as the cause of many of the problems that are regarded as intrinsic to the disability under the other models.
The cultural habit of regarding the condition of the person, not the built environment or the social organization of activities, as the source of the problem, runs deep. For example, it took me several years of struggling with the heavy door to my building, sometimes having to wait until a person stronger came along, to realize that the door was an accessibility problem, not only for me, but for others as well. And I did not notice, until one of my students pointed it out, that the lack of signs that could be read from a distance at my university forced people with mobility impairments to expend a lot of energy unnecessarily, searching for rooms and offices. Although I have encountered this difficulty myself on days when walking was exhausting to me, I interpreted it, automatically, as a problem arising from my illness (as I did with the door), rather than as a problem arising from the built environment having been created for too narrow a range of people and situations.Reference 4.
The United Nations uses a definition of disability that is different from the ADA:
Impairment: Any loss of abnormality of psychological, or anatomical structure or function.
Disability: Any restriction or lack (resulting from an impairment) of ability to perform an activity in the manner or within the range considered normal for a human being.
Handicap: A disadvantage for a given individual, resulting from an impairment or disability, that limits or prevents the fulfillment of a role that is normal, depending on age, sex, social and cultural factors, for that individual.
Handicap is therefore a function of the relationship between disabled persons and their environment. It occurs when they encounter cultural, physical or social barriers which prevent their access to the various systems of society that are available to other citizens. Thus, handicap is the loss or limitation of opportunities to take part in the life of the community on an equal level with others.Reference 5.
This definition reflects the idea that to a large extent, disability is a social construct. Most people believe they know what is and is not a disability. If you imagine "the disabled" at one end of a spectrum and people who are extremely physically and mentally capable at the other, the distinction appears to be clear. However, there is a tremendous amount of middle ground in this construct, and it's in the middle that the scheme falls apart. What distinguishes a socially "invisible" impairment - such as the need for corrective eyeglasses - from a less acceptable one - such as the need for a corrective hearing aid, or the need for a walker? Functionally, there may be little difference. Socially, some impairments create great disadvantage or social stigma for the individual, while others do not. Some are considered disabilities and some are not.
The following examples further illustrate the difficulty of defining disability without consideration of social factors:
* A person who has a cochlear implant ;
* A person who has a digestive disorder that requires following a very restrictive diet and following a strict regime of taking medications, and could result in serious illness if such regime is not adhered to;
* A person with serious carpal tunnel syndrome;
* A person who is very short.It is likely that different people could have different responses to the question of whether any of the above-listed characteristics would result in "disability", and some might say , "It depends". This illustrates the differences in the terms "disability" and "handicap", as used by the U.N. Any of the above traits could become a "handicap" if the individual were considered disabled and also received disparate treatment as a result.
Another example of the social construction of disability is when society discriminates against an individual who may have an "impairment" (in the sense of the U.N. definition) without a corresponding functional limitation. "The power of culture alone to construct a disability is revealed when we consider bodily differences - deviations from a society's conception of a "normal" or acceptable body - that, although they cause little or no functional or physical difficulty for the person who has them, constitute major social disabilities. An important example is facial scarring, which is a disability of appearance only, a disability constructed totally by stigma and cultural meanings. Stigma, stereotypes, and cultural meanings are also the primary components of other disabilities, such as mild epilepsy and not having a 'normal' or acceptable body size."Reference 6.
The definition of disability in the ADA reflects a recognition of the social construction of disability, especially by including coverage for persons who are perceived by others as having a disability. The U.S. Equal Employment Opportunity Commission's ADA Title I Technical Assistance Manual provides the following explanations of how this prong of the definition is to be interpreted:
1. The individual may have an impairment which is not substantially limiting, but is treated by the employer as having such an impairment.
For example: An employee has controlled high blood pressure which does not substantially limit his work activities. If an employer reassigns the individual to a less strenuous job because of unsubstantiated fear that the person would suffer a heart attack if he continues in the present job, the employer has "regarded" this person as disabled.
2. The individual has am impairment that is substantially limiting because of attitudes of others toward the condition.
For example: An experienced assistant manager of a convenience store who has a prominent facial scar was passed over for promotion to store manager. The owner believed that customers and vendors would not want to look at this person. The employer discriminated against her on the basis of disability, because he perceived and treated her as a person with a substantial limitation.
3. The individual may have no impairment at all, but is regarded by an employer as having a substantially limiting impairment.
For example: An employer discharged an employee based on a rumor that the individual had HIV disease. This person did not have any impairment, but was treated as though she had a substantially limiting impairment.
This part of the definition protects people who are "perceived" as having disabilities from employment decisions based on stereotypes, ears, or misconceptions about disability. It applies to decisions based on unsubstantiated concerns about productivity, safety, insurance, liability, attendance, costs of accommodation, accessibility, workers' compensation costs or acceptance by co-workers and customers.
Accordingly, if an employer makes an adverse employment decision based on unsubstantiated beliefs or fears that a person's perceived disability will cause problems in areas such as those listed above, and cannot show a legitimate, nondiscriminatory reason for the action, that action would be discriminatory under this part of the definition.Reference 7.
The definitions within a statute are related to the purpose of the statute. This is especially relevant in the field of disability policy, as one can find many different statutes, all with different definitions of this term. The purpose of the ADA is to prevent discrimination and to provide a remedy for people who have experienced it. This is consistent with the disability model of understanding disability, which places great importance on discrimination as a major cause of disadvantage. In order to provide an appropriate remedy to the full range of individuals who experience discrimination based on disability, it is necessary to explicitly recognize that there are people who would not consider themselves "disabled", nor would they be considered so by most others, but who receive the same disparate treatment as "the disabled".
The courts have had a difficult time interpreting this complex definition. There are numerous cases in which judges have treated the ADA definition as though the purpose of the law is to provide a social benefit, rather than protect an individual from discrimination.Reference 8.
In some cases, the courts have placed an individual with a disability in a Catch-22 situation: if the individual has held a job, then this is proof that the individual is not disabled and therefore cannot use the ADA to seek a remedy for employment discrimination. Reference 9.
The notion that the ADA should only be used to protect persons who are somehow "truly" disabled reflects an unsophisticated or naive understanding of the nature of disability. Given the significance of social and cultural influences in determining who is regarded as disabled, it makes little sense to refuse to take these same influences into account.
Another important issue related to the topic of the definition of disability has to do with disability identity. There are many persons who unarguably fit within the first prong of the ADA definition who do not consider themselves disabled. "...there are many reasons for not identifying yourself as disabled, even when other people consider you disabled. First, disability carries a stigma that many people want to avoid, if at all possible. For newly disabled people, and for children with disabilities who have been shielded from knowledge of how most non-disabled people regard people with disabilities, it takes time to absorb the idea that they are members of a stigmatized group. Newly disabled adults may still have the stereotypes of disability that are common among non-disabled people. They may be in the habit of thinking of disability as total, believing that people who are disabled are disabled in all respects. ...They may fear, with good reason, that if they identify themselves as disabled others will see them as wholly disabled and fail to recognize their remaining abilities, or perhaps worse, see their every ability and achievement as 'extraordinary' or 'courageous'." Reference 10.
The reason that so many people reject the label "disabled" is that they seek to avoid the harsh social reality that is still so strong today. Having a disability, even though the ADA has been in place for almost a decade, still carries with it a great deal of stigmatization and stereotyping. It is ironic that those who could benefit from the law choose not to do so because they wish to avoid the very social forces that this law seeks to redress and eradicate.
People who may fall under the coverage of the ADA because of the presence of a genetic marker are certainly not likely to think of themselves as disabled. While there may be discomfort at the thought of coming under this label, it is worthwhile to recognize that no one with a disability, visible or otherwise, wants to experience the stigma and discrimination that is still all too common for those who society considers disabled. There are many others who do not consider themselves to be disabled but who do experience discrimination. The ADA provides a legal remedy when this occurs. Since the ADA definition recognizes the social construction of disability, whether it can apply to a person is a function of the social treatment that the individual receives. In other words, the question of whether a person with a genetic marker is covered by the definition does not arise in the abstract. If the individual has experienced discrimination based on the individual's physical or mental characteristics, then that individual may take advantage of the ADA to redress that discrimination.
The question of whether a group of people fits within society's concept of who might be disabled, or who is treated in the same negative way, is not an option that the group has the chance to select. No group of people would willfully opt to be treated disparately. From a policy point of view, there are two possible options that could be pursued to avoid coming under the coverage of the ADA: (1) an amendment to the ADA to explicitly state that persons with genetic markers are excluded from coverage under the definition; and/or (2) separate legislation to redress discrimination based on genetic characteristics.
The first option would operate like the proverbial phrase, cutting off one's nose to spite one's face. The possibility of genetic discrimination is quite real, and it would be a poor bargain to lose one's civil rights in exchange for avoiding disability based stigma. It could also cause significant problems with legal interpretation of the ADA definition; the risk is that courts could use any exclusion to deny ADA coverage to others.
The second option is also politically and legally fraught with risk. Politically, people with genetic markers are a much smaller group than the very large confederation of disability organizations and individuals who came together to work towards passage of the ADA. Thus, the chances of gaining the strong legal protections that are now available in the ADA are not very high. It could also be expected that well-financed corporate interests would oppose such legislation. Enactment of any new legislation would be a tough, uphill battle that would probably result in a compromised version of the original proposal. In addition, the existence of two overlapping pieces of legislation could result in unfavorable judicial interpretation.
For those within the disability movement who have no problem being identified as disabled, there are advantages to coming under the coverage of the ADA, and indeed to being part of a community that is actively working to eradicate the discrimination and stigma that are our legacy. After decades of disparate treatment with no meaningful legal protection or remedy, it is quite satisfying to fight discrimination and to stand together to reject the stigma and stereotypes that are the basis of disability-based discrimination. Most disability activists welcome the inclusion of persons with invisible disabilities, as well as those who have faced discrimination even though they have no real impairment. This is because we understand that freedom from injustice is not an entitlement to be doled out in small doses. The nature of disability discrimination is that it often has very little to do with the individual's capabilities and true characteristics. The stigma and stereotypes are the cause of the discrimination, much more than the disability itself. It could be argued that the disability per se is not the cause at all, that the social reaction to disability is the cause.
In seeking to avoid the stigma associated with disability, there is a choice of strategies. Social and legal activism that challenge the assumptions behind the disability discrimination address the issues head on. The goal is to eradicate the stigma. The decision to disassociate from those who have historically been stigmatized tends to perpetuate the stereotypes and discrimination.
The disability rights movement is working towards a society in which physical and mental differences among people are accepted as normal and expected, not abnormal or unusual. We have plenty of methods and tools at our disposal to accommodate human differences should we choose to. Ironically, the growth of technology in our lives provides us with both the ability to detect more human differences than ever before, as well as the ability to make those differences less meaningful in practical terms. How we react to human differences is a social and a policy choice. We prefer to advocate for a social structure that focuses on including all people in the social fabric, rather than drawing an artificial line that separates "disabled people" from others.
References 1. David Pfeiffer, "The Disability Paradigm and Federal Policy Relating to Children with Disabilities", Unpublished, Honolulu, 1998.
2 See "Help the Disabled Work", lead editorial, Los Angeles Times, Sunday, December 13, 1998, p.M4.
3 David Pfeiffer, "The Problem of Disability Definition", Unpublished, Honolulu, 1998.
4 Susan Wendell, The Rejected Body: Feminist Philosophical Reflections on Disability, Routledge, New York, 1996 p. 46.
5 U.N. Decade of Disabled Persons 1983-1992. 1983. World Programme of Action Concerning Disabled Persons. New York: United Nations.
6 Wendell, The Rejected Body, p.44.
7 A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act, U.S. Equal Employment Opportunity Commission, January, 1992, Section 2.2(c), p. 28.
8 Gilday v. Mecosta County, CA 6, No. 96-1571, 9/2/97; Van Sickle v. Automatic Data Processing Inc.,6th Cir.,No. 97-1255,unpublished11/23/98.
9 McNemar v. The Disney Store, Inc., 91 F.3d 610, 5 AD Cas.(BNA) 1227 (3d Cir. 1996); although other courts have not followed this line of reasoning, eg., EEOC v. AIC Security, 820 F. Supp. 1060, 2 AD Cas. (BNA) 561 (N.D. Ill. 1993).
10 Wendell, The Rejected Body, p.26.
Deborah Kaplan, DirectorWorld Institute on Disability510/251-4347dkaplan@wid.org
OTHER ITEMS OF INTEREST:The following sites contain information that may be of interest. Please bear in mind that the information at these sites is not controlled by the Center for An Accessible society. Links to these sites do not imply that the Center supports either the organizations or the views presented.
The following information is available from InfoUse:
Chartbook on Women and Disability in the United StatesThe latest publication in the Chartbook series, "Chartbook on Women and Disability in the United States," is a reference on national statistical information on gender and disability. All the charts and text from this chartbook are available on-line, and you may also download the entire chartbook in PDF format for printing. Last updated: 07/21/99.Chartbook on Work and Disability in the United StatesInfoUse has recently published the "Chartbook on Work and Disability in the United States," a reference on national statistical information on work disability. All the charts and text from this chartbook are available on-line, and you may also download the entire chartbook in PDF format for printing. Last updated: 03/19/99. Note: Some charts have been updated with 1998 CPS data.
Chartbook on Disability in the United StatesInfoUse has published a revision of its "Chartbook on Disability in the United States," a reference on national statistical information on disability। This section of our Web site includes Chartbook excerpts, with an electronic version of the entire chartbook available for downloading in PDF format. Last updated: 11/12/98.
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Location: Home > Equality > Disability > Guidance on the Definition of Disability Consultation
Guidance on the Definition of Disability Consultation
Guidance on the Definition of Disability Consultation
We have updated and consulted on our publication “Guidance on matters to be taken into account in determining questions relating to the definition of disability”. The consultation ran for 12 weeks ending on 15 January 2007.
Access the consultation document; Guidance on matters to be taken into account in determining questions relating to definition of disability (PDF 356 KB)
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Disability Discrimination (Northern Ireland) Order 2006
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Promoting Social Inclusion (PSI) Disability
Consultation on Regulations arising from the Disability Discrimination (Northern Ireland) Order 2006
Guidance on the Definition of Disability Consultation
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