The Disability Rights Commission was launched in April 2000 in response to the clear need for an authoritative body to represent the interests of disabled people. It's duties are to work towards the elimination of discrimination against disabled persons, promote equalisation of opportunities and encourage good practice in the treatment of disabled people.
There are over 6.6 million disabled people of working age in Britain, accounting for nearly one fifth of the working age population, and yet until the introduction of the Disability Discrimination Act in 1995, disabled people were afforded no protection whatsoever from discrimination.
Some interesting statistics - The Commission monitors the impact of the Disability Discrimination Act and the news on use is mixed. Some 8,908 cases have been commenced in England, Scotland and Wales under the employment provisions in Part II of the DDA, of which 1,757 have reached a hearing.
The most common impairments which form the basis of claims of disability discrimination are those connected with the back or neck (19.5%), mental health (18.2%) and the arms or hands (14.3%).
The most common occupations are clerical and secretarial (15.9%), plant, vehicle and machine operatives (15.7%), and managers and administrators (13.6%).
The most common sectors are public administration (20.9%), and manufacturing (18.8%), both of which remain strongly unionised sectors. Disabled applicants have been unrepresented in 21.4% of tribunal cases.
The importance of representation to the prospects of success is illustrated by the fact that unrepresented applicants were successful in just 13.7% of such cases, as opposed to an overall success rate of 19.5% in all cases decided by a tribunal.
Remedies - The average award for pecuniary loss in 2000 in the employment tribunal was £13,046 and the average award for injury to feelings was £5,802. Both figures represent a significant increase from the year before. Interestingly, these figures are higher than the average awards for pecuniary loss and injury to feelings in discrimination cases, in general, which were £11,193 and £4,889 respectively.
What cannot be so easily measured is the extent to which employers alter their behaviour as a result of an award being made against them.
Some significant cases
Justification - Justification has become the key defence for employers. In 21.9% of all Part II cases commenced, an employer has sought to justify its unfavourable treatment of a disabled employee, most frequently on the grounds of health and safety considerations, or sickness absence.
In Jones v The Post Office (2001 IRLR 384) the Court of Appeal held that where an employer has undertaken a properly conducted risk assessment, which provides a reason, which is both material and substantial and is not irrational, the employer is entitled to rely on that reason to justify less favourable treatment. Providing the risk assessment meets those criteria, the Court of Appeal held that it is not open to the Employment Tribunal to substitute its own appraisal because it prefers the evidence of the applicant's expert presented to it at the hearing itself. However, as the Court of Appeal made clear, it remains incumbent on the employer to reconsider their assessment in the light of any evidence or proposals put forward by the disabled employee or his or her medical advisers.
Although Jones is generally perceived to be of advantage to employers, a note of caution should be sounded. Employers would be well advised to take care when seeking to rely on the opinion of their own medical advisers to justify their actions. Crucially, the risk assessment must be properly conducted, taking into account all the relevant evidence reasonably available to the assessor, and if medical issues are raised, based on appropriate medical evidence from a sufficiently well qualified expert. For employee representatives, the key is to be as proactive as possible in pressing for proper assessments to be done.
In the earlier decision of Fu v London Borough of Camden (2001 IRLR 186), the Employment Appeal Tribunal made a similar point; a failure by an employer to give proper consideration to suggestions as to reasonable adjustments made by a disabled employee meant that the employer could not justify his actions. Fu emphasises the importance of the disabled person and their employee representative engaging in the process of assessing what adjustments are appropriate to accommodate the individual's disability. An employer will find it difficult to justify a failure to make a particular adjustment if it had been suggested to them by the individual or employee representative and ignored. It is usually helpful to involve Access to Work in considering adjustments. The disabled person themselves must contact Access to Work who can then offer funding for adjustments to be made, such as specialised equipment, meeting the cost, partially or in full, of a support worker and so on. Again, if the employer is presented with a sensible adjustment which Access to Work have agreed to support, it makes it more difficult for them to justify a refusal to put the adjustment in place.
Ex post facto justification - The extent to which an employer can rely upon 'ex post facto' reasons, after the event, to justify less favourable treatment has also created real difficulties. The Employment Appeal Tribunal dealt with the question in Quinn v Schwarzkopf Limited (2001 IRLR 67) and held that the employer in that case was precluded from claiming a justification ex post facto that had not featured at the time of the discriminatory act. The approach adopted in Quinn was that Parliament did not intend to permit employers to think up hypothetical justifications for their discriminatory acts after the event to try to establish that there was nothing that they could have done.
This view was contested by the EAT in British Gas Services Ltd v McCaull (2001 IRLR 60) which in turn was supported by the EAT in Bradley v Greater Manchester Civil and Fire Defence Authority (EAT/253/00). These cases dealt with the issue of s6 reasonable adjustments in the context of discrimination under s5(1), i.e. dismissal. In order to justify such less favourable treatment, the employer had to first overcome the hurdle of s6, as, if they were under a duty to make adjustments and failed to do so, contrary to s6, they would be precluded from justifying their actions under s5(4). In both cases the EAT held that ex post facto evidence can be material and admissible when seeking to establish that the employer has either taken all reasonable steps to comply with a s6 duty to make reasonable adjustments or that there were no further steps that he could reasonably have taken. The good news is and the EAT recognised this, that it might well be more difficult to establish that such reasons put forward after the event were material and substantial and therefore justifiable. This position has since been confirmed in a further case of Callagan v Glasgow City Council.
The Commission's legal team - The Commission's legal team, under Director Nick O'Brien and headed by Pauline Hughes, is based in Manchester and consists of six legal officers, one of whom is based in Edinburgh, and a legal policy expert. The team focuses on cases of strategic legal importance, which raise questions of principle in the application of the Disability Discrimination Act 1995 and which have implications for a wide range of disabled people.
The team has well established links with expert advisers and the voluntary sector but our links with the Trade Union movement are less well developed, a concern that the Commission is keen to address. The Trade Union movement has often worked in conjunction with the other equality commissions, the Equal Opportunities Commission and the Commission for Racial Equality, and we are keen to pool expertise and engage in joint working on cases of strategic interest. We would welcome approaches from Trade Union legal officers or officials to discuss ways of working together.
- Disability Rights Commission, 2nd Floor, Arndale House,The Arndale Centre, Manchester M4 3AQ; telephone 0161 261 1700