Don't Be Blind to New Disability Rights
'Restaurants will no longer be allowed to refuse entry to people with guide dogs'
'Guide dogs given the right to roam in restaurants'
These press statements heralded the publication of the timetable for full implementation of Part III of the Disability Discrimination Act 1995 (the Act) but only touch at the significance of the new legislation.
Alan Howarth the Minister for Equal Opportunities said 'This is excellent news for disabled people which will have a widespread impact on their lives... it will no longer be the case that so many of our disabled citizens are excluded from the everyday activities that others take for granted'.
From October 1999 service providers will be obliged to take reasonable steps to change practices, policies and procedures which obstruct disabled people from using services and provide aids to help disabled people overcome physical barriers to using the services. The new provisions could mean for example, a requirement for promotional literature to be produced for visually impaired people to read or businesses, such as hairdressers or chiropodists, based in inaccessible areas, considering homevisits to clients. These are all practical steps which employers should consider now in anticipation of the new duties.
The recent publicity on dates for implementation of Part III of the disability legislation follows on from the first EAT decisions on disability issues in the employment field. In O'Neill -v- Symm & Co Ltd the EAT unsuprisingly held that knowledge of an employee's disability is material to whether the reason for the employer's action relates to the person's disability. Miss O'Neill was dismissed on the grounds of her level of absence (as a result of a viral illness) and brought a claim under the Act. Although she had been diagnosed as having ME the employer was not aware of this when she was dismissed. The EAT decided that for the employer to have discriminated against the employee on the grounds of her disability it did of course need to know that she was disabled and could not have been expected to know on the facts of the case.
The EAT has also given guidance on dealing with the duty to make a reasonable adjustments. In the case of Morse -v- Wiltshire County Council Mr. Morse was selected for redundancy because he could not drive and a driving licence was essential. The EAT said the tribunal had not addressed the issue correctly and remitted the case for rehearing. The EAT gave guidance on the appropriate steps to follow. Is there a duty to make reasonable adjustments? If so has the employer taken reasonable steps to comply with this duty? If the employer has failed to make reasonable adjustments, is it justified?
Most employers have addressed the main issues under the Act but the case of Kirker -v- British Sugar plc is a sharp reminder of the potential financial penalties that can be imposed if employers fail to take on board the principles of the legislation. Mr. Kirker's vision was so poor he was entitled to full blind registration. Employed as a chemist he was selected for redundancy on wholly subjective criteria. Points were deducted for poor performance, although he had never been warned and for absenteeism, although the absences were related to his disability. The tribunal held that he had been discriminated against on the grounds of his disability and awarded £103,000 on the basis Mr. Kirker was unlikely to find alternative employment for the rest of his working life.
Employers have to focus on the legal and practical steps that need to be taken to ensure compliance with the Act in the employment field particularly when dealing with long term absence and Service Providers must also address the practical steps that need to be taken to ensure compliance with Part III of the Act. We suggest an effective way of doing this is to have a disability audit as it enables a clear focus on steps which are necessary and/or desirable.
STOP PRESS
Royal assent has been given to the Public Interest Disclosure bill which will come into force in January 1999. The bill protects workers from being dismissed or victimised for making a 'protected disclosure' of certain types of wrong doing. The disclosures must be made in good faith and the use of internal procedures are encouraged before an external disclosure. The bill is as a result of a private member's measure tabled by Richard Shepherd. If an employee is victimised they can make a claim at the Industrial Tribunal. There will be no cap on awards which will be based on loss suffered. The Government is currently consulting on a proposal for aggravated damages. This change is likely to be implemented just before the unfair dismissal qualification required is lowered to one year and the Compensatory Award cap of £12,000 removed. 1999 is likely to be a costly year for unprepared employers.
For further information please contact Susan Nickson, e-mail: Click Contact Link , Trinity Court, 16 John Dalton Street, Manchester M60 8HS, UK, Tel: +44 161 830 5000
This article was first published as the July 1998 Hammond Suddards Employment Bulletin
The information and opinions contained in this article are provided by Hammond Suddards. They should not be applied to any particular set of facts without appropriate legal or other professional advice.
'Restaurants will no longer be allowed to refuse entry to people with guide dogs'
'Guide dogs given the right to roam in restaurants'
These press statements heralded the publication of the timetable for full implementation of Part III of the Disability Discrimination Act 1995 (the Act) but only touch at the significance of the new legislation.
Alan Howarth the Minister for Equal Opportunities said 'This is excellent news for disabled people which will have a widespread impact on their lives... it will no longer be the case that so many of our disabled citizens are excluded from the everyday activities that others take for granted'.
From October 1999 service providers will be obliged to take reasonable steps to change practices, policies and procedures which obstruct disabled people from using services and provide aids to help disabled people overcome physical barriers to using the services. The new provisions could mean for example, a requirement for promotional literature to be produced for visually impaired people to read or businesses, such as hairdressers or chiropodists, based in inaccessible areas, considering homevisits to clients. These are all practical steps which employers should consider now in anticipation of the new duties.
The recent publicity on dates for implementation of Part III of the disability legislation follows on from the first EAT decisions on disability issues in the employment field. In O'Neill -v- Symm & Co Ltd the EAT unsuprisingly held that knowledge of an employee's disability is material to whether the reason for the employer's action relates to the person's disability. Miss O'Neill was dismissed on the grounds of her level of absence (as a result of a viral illness) and brought a claim under the Act. Although she had been diagnosed as having ME the employer was not aware of this when she was dismissed. The EAT decided that for the employer to have discriminated against the employee on the grounds of her disability it did of course need to know that she was disabled and could not have been expected to know on the facts of the case.
The EAT has also given guidance on dealing with the duty to make a reasonable adjustments. In the case of Morse -v- Wiltshire County Council Mr. Morse was selected for redundancy because he could not drive and a driving licence was essential. The EAT said the tribunal had not addressed the issue correctly and remitted the case for rehearing. The EAT gave guidance on the appropriate steps to follow. Is there a duty to make reasonable adjustments? If so has the employer taken reasonable steps to comply with this duty? If the employer has failed to make reasonable adjustments, is it justified?
Most employers have addressed the main issues under the Act but the case of Kirker -v- British Sugar plc is a sharp reminder of the potential financial penalties that can be imposed if employers fail to take on board the principles of the legislation. Mr. Kirker's vision was so poor he was entitled to full blind registration. Employed as a chemist he was selected for redundancy on wholly subjective criteria. Points were deducted for poor performance, although he had never been warned and for absenteeism, although the absences were related to his disability. The tribunal held that he had been discriminated against on the grounds of his disability and awarded £103,000 on the basis Mr. Kirker was unlikely to find alternative employment for the rest of his working life.
Employers have to focus on the legal and practical steps that need to be taken to ensure compliance with the Act in the employment field particularly when dealing with long term absence and Service Providers must also address the practical steps that need to be taken to ensure compliance with Part III of the Act. We suggest an effective way of doing this is to have a disability audit as it enables a clear focus on steps which are necessary and/or desirable.
STOP PRESS
Royal assent has been given to the Public Interest Disclosure bill which will come into force in January 1999. The bill protects workers from being dismissed or victimised for making a 'protected disclosure' of certain types of wrong doing. The disclosures must be made in good faith and the use of internal procedures are encouraged before an external disclosure. The bill is as a result of a private member's measure tabled by Richard Shepherd. If an employee is victimised they can make a claim at the Industrial Tribunal. There will be no cap on awards which will be based on loss suffered. The Government is currently consulting on a proposal for aggravated damages. This change is likely to be implemented just before the unfair dismissal qualification required is lowered to one year and the Compensatory Award cap of £12,000 removed. 1999 is likely to be a costly year for unprepared employers.
For further information please contact Susan Nickson, e-mail: Click Contact Link , Trinity Court, 16 John Dalton Street, Manchester M60 8HS, UK, Tel: +44 161 830 5000
This article was first published as the July 1998 Hammond Suddards Employment Bulletin
The information and opinions contained in this article are provided by Hammond Suddards. They should not be applied to any particular set of facts without appropriate legal or other professional advice.
