The Disability Discrimination (Meaning of Disability) Regulations 1996
The Disability Discrimination (Employment) Regulations 1996
Code of Practice for the elimination of disability discrimination
Guidance on matters to be taken into account in determining questions relating to the definition of disability 

The employment law provisions of the Disability Discrimination Act come into force on 2 December 1996. It will be unlawful for an employer to discriminate against a disabled person in selection procedures, terms of employment, or by not offering a job because of a disability. It will also be unlawful to discriminate in opportunities for training, promotion, transfer or receiving any other benefit; by dismissing or subjecting the disabled person to any other disadvantage.

Discrimination means treating the disabled person less favourably because of disability unless the employer can show that the treatment is justified. Less favourable treatment can only be justified if the reason is material to the circumstances of the case and substantial. It is also discrimination for an employer to fail to make "reasonable adjustments", unless the failure can be justified by a reason which is material and substantial. 

The Act does not apply to employers with less than 20 staff. Claims for breaches of the Act are brought to the Industrial Tribunal which has a similar range of remedies to sex and race discrimination cases. 

Many features of the Act were left open to further definition and clarification by Regulations, Codes of Practice and Guidelines. These have now been published and give more detail on parts of the legislation which are likely to prove controversial in practice.

Reasonable adjustments

Employers are under a duty to make reasonable adjustments where arrangements made by or for the employer, or any physical features of premises, place the disabled person at a substantial disadvantage. The Act lists examples of steps employers may have to take, including adjusting premises, reallocating duties, transferring jobs or sites, altering hours, giving training, allowing time off, providing equipment, providing a reader or interpreter or supervision. The Regulations expand on the extent of the employer's duty. 

Physical features are defined by the Employment Regulations as features arising from design or construction of buildings; on exits or access to buildings on the premises; fixtures, fittings, furnishings, equipment or materials and any other physical element or quality of land on the premises.

Meaning of Disability: Regulations and Guidance

Disability is defined as 'physical or mental impairment which has substantial and long-term adverse effect on [a person's] ability to carry out normal day to day activities'. The Act also applies to people who had a disability in the past. 

The Disability Discrimination (Meaning of Disability) Regulations 1996 list conditions which will not be treated as amounting to impairments. These include addictions to alcohol, nicotine or any other substance unless originally caused by taking prescribed drugs. 

Tendencies to set fires, steal, abuse others, exhibitionism and voyeurism fall outside the protection of the legislation. Severe disfigurement may amount to a disability but not if caused by tattoos or body piercing. Hay fever is not specifically covered by the Act. 

The legislation is supplemented by Guidance on the definition of disability. The Guidance does not have the force of law, but an IT must take it into account when deciding if a person's impairment has a "substantial and long-term adverse effect on her or his ability to carry out normal day-to-day activities." 

The Guidance expands on the definition of mental impairment, which does not include any impairment resulting from a mental illness unless that illness is "clinically well-recognised." The Guidance says this means recognised by a respected body of medical opinion and would include conditions within the WHO's International Classification of Diseases.

Substantial Adverse Effect

The Guidance identifies as indicators of potentially substantial effects: the time taken to carry out tasks; the way in which tasks are carried out; and stresses the need to take into account the cumulative effects of impairments which may not in themselves be substantial if taken individually. The effect of environmental conditions on the employee's disability will be relevant, for example adverse effects of temperature, humidity or fatigue caused by the time of day. The extent to which an employee can reduce the effects of his condition by modifying his behaviour will be taken into account. 
But beneficial effects of treatment will be disregarded in assessing the severity of effects: so the degree of impairment for someone with a hearing aid will be assessed by the level of hearing without the aid. This also applies to prostheses, but not to glasses or contact lenses.

Normal day to day activities

These include mobility, manual dexterity, physical co-ordination, senses, lifting ability and mental faculties. Impairment would include a situation where these activities must be curtailed or avoided on medical advice (someone with a vulnerable back who has been told to avoid lifting for example). An activity which can only be carried out by causing pain or severe fatigue may amount to an impairment. 

The Guidance lists a series of examples of effects which would amount to an impairment and those which would not. Although it is claimed that these are indicators and not tests, there must be a substantial risk that tribunals will adopt these as authoritative statements.

This would mean, for example, that someone who can walk no more than a mile without discomfort will have difficulty establishing this as an impairment. On ability to lift, the Guidance suggests inability to pick up objects of moderate weight with one hand would be a substantial adverse effect. But inability to move heavy objects without a mechanical aid would not. This is likely to prove controversial in both employment cases and personal injury cases following workplace injury where a person's employment prospects may be blighted by the injury but do not fall within the definition of disabled.

Long Term

This means at least 12 months, or the remainder of the person's life (if less than 12 months). Where a condition is recurrent, it is treated as continuing if the substantial adverse effect has stopped but is likely to recur. This would apply to conditions such as epilepsy.

Code of Practice

The Code does not impose legal obligations, but it can be put in evidence before tribunals and must be taken into account. Once again its main impact is likely to be through the numerous examples given in the code. 

To take one instance, tribunals are likely to be influenced by the view expressed on page 42 of the Code that a disabled person whose disability leads to a lower output of work, even after reasonable adjustments, may be paid less than colleagues with a higher output.

Disability Discrimination (Employment) Regulations 1996

A similar issue arises under the Employment Regulations which permit performance related pay. Performance related pay is not to be treated as an arrangement which places disabled people at a substantial disadvantage. 

But there is still an obligation on an employer to make reasonable adjustments to aspects of the premises or work arrangements which would otherwise reduce the employee's performance with adverse effects on pay. 

The Employment Regulations deal with a number of situations where the legislation says discrimination is justified. These include eligibility for benefits under occupational pension schemes and where building works complied with the building regulations in force when the works were carried out. There are also specific provisions dealing with the situation where the premises are leased from a landlord.Â