When employees and trade unions refer to the Disability Discrimination Act 1995 (DDA), it is invariably the obligations on employers that are the focus of attention. In line with this, many trade unions have rightly directed energy and resources in ensuring that employers comply with those obligations. What is sometimes overlooked is that Part II of the DDA (headed "employment") does not just impose obligations on employers. Sections 13 to 15 of the Act place extensive obligations on trade unions in relation to their members with disabilities. Increasingly, union members are seeking to enforce those rights. This article outlines the nature and extent of the legal obligations imposed by the DDA on trade unions, and considers some of the practical issues that are likely to arise.
Section 13 sets out the scope of the application of the Act to trade unions. It states that it is unlawful for a trade union to discriminate in relation to admission to mem-bership of the union, or in relation to benefits of membership, or in subjecting the member to any other detriment. As with the entire DDA, the protection is only available to members who are "disabled" as defined in the Act. It must be remembered that this definition is broad and covers anyone who has a mental or physical impairment that has a significant effect on his or her normal day to day activities. Therefore members who are suffering, for example, from RSI, clinical depression, a bad back, chronic fatigue syndrome or dyslexia, may all be covered by the definition of disabled.
Sections 14 and 15 of the DDA then mirror the two definitions of discrimination that are imposed on employers: firstly, the duty not to treat disabled people less favourably unless the treatment can be justified, and, secondly the duty to carry out reasonable adjustments to prevent a particular disability putting a disabled person at a disadvantage.
The less favourable treatment provisions came into effect in December 1996. The duty to make reasonable adjustments to arrangements came into effect in October 1999, with the exception of the duty to make adjustments to physical features of premises. The duty to adjust the physical features of premises will come into effect in October 2004.
Less favourable treatment
Section 14 provides that it is unlawful to treat a member less favourably for a reason which relates to their disability unless that treatment can be justified.
The duty on unions not to treat disabled members less favourably is fairly self-explanatory. So for example it is likely to be unlawful for a union officer to decide not to send out campaigning or other material to a member who is visually impaired, on the basis that they would not be able to read it so there would be little point in sending it. Certain aspects of the duty are however easy to overlook. For example the fact that a union was not aware that a particular member had a disability would not amount to a defence: as with the parallel duty on employers, knowledge of a disability is not necessary for the less favourable treatment provisions of the Act. Arguably, it is easier for an employer to comply with this in that an employer is likely to be more aware of the likely disabilities of its staff than a trade union officer is likely to be aware of any disabilities of the union's members, many of whom the officer may not have had any previous contact with at all. However, the point here is that the DDA does expect some anticipatory foresight on the part of both employers and unions, and a union is expected to have anticipated at least the most common types of disability, or possibly, depending on the circumstances, enquired of a particular member or group of members whether they have any particular disability that needs to be taken into account. On the other hand, in circumstances where the disability was hidden and could not reasonably have been anticipated by the officer, then it is likely that the officer would be able to rely on this fact as justification: as with the employment sections, a union will not be regarded as having treated a member less favourably if they can show that the treatment was justified (section 14 (1) (b)).
The less favourable treatment provisions, like all the other sections dealing with unions, imposes duties not just on the employed staff of the union, but also lay representatives and officials such as shop stewards.
The duty to adjust
Section 15 imposes obligations on trade unions to carry out reasonable adjustments to both arrangements and - as from October 2004 - the physical features of premises occupied by them.
As with the sections applying to employers, it is this section which currently imposes the most extensive obligations on unions. The duty to adjust, which is dependent on the union having actual or constructive knowledge of a disability, applies wherever the union's arrangements place a member at a disadvantage by reason of their disability. Obvious examples would include visually impaired members who cannot read union circulars, members who are wheelchair users who cannot attend branch meetings held in upstairs rooms, or members who are deaf and cannot therefore hear education sessions or branch meetings. A recent Tribunal claim concerned a wheel chair user who had difficulty accessing the conference hall of the union's annual conference.
Stress cases often cause problems. Although stress in itself is not a disability, anxiety and depression may be. The sorts of adjustments that a union may be required to make in these cases might, for example, involve allowing more time for meetings with members, or face to face communication in meetings as opposed to correspondence.
The obligation on the union to adjust is not absolute, and in all cases the issue which the union has to determine is what adjustment to their arrangements would be "reasonable". If an adjustment is unreasonable, then the union is not under an obligation to carry it out.
The Government issued a Code of Practice in 1999 dealing specifically with the obligations on trade organisations, a definition which includes trade unions. The Code provides a number of illustrations of the sorts of adjustments that a Tribunal would be likely to regard as reasonable. One example relates to the provision of free transport to a union conference: normally free minibuses are provided for members to enable them to attend conference. However, the minibuses provided are not wheelchair accessible, so a member who is a wheelchair user cannot access the benefit of free transport. The Code states that this is likely to be regarded as a breach of the Act. Another example relates to a free telephone helpline which members with a hearing impairment cannot use. The Code suggests that in these circumstances the same service could be provided by email or textphones.
The TUC's Equal Rights Department issued some very useful guidance to unions about compliance with the adjustment provisions of the Act in 1996, dealing in particular with accessibility of union materials, such as written circulars and websites.
The 1999 statutory Code of Practice is currently being rewritten to coincide with the introduction in October 2004 of the new duty to adjust premises. The new duty will require unions to consider such matters as how premises should be adapted to accommodate wheelchairs, and sight impaired visitors.
To comply with both the spirit as well as the detail of the DDA, unions have to take a proactive attitude towards disability discrimination, to identify members' needs and take action accordingly. The Code recommends that unions undertake an audit of membership to ascertain the numbers of disabled members and their needs. It is wise advice which could ensure that unions who do so much to use the DDA to advance the rights of their disabled members in employment, do not find themselves on the wrong end of litigation under the DDA.