From 01 October 2004, the Disability Discrimination Act (1995) applied to any body that supplies goods, services and facilities to the public.

On that date, the previous ‘small business’ exemption was removed. This means that all employers will be subject to the regulations, not just those employing 15 or more people. The Act makes it clear that an employer will be in breach of the discrimination rules if:

• An employer, for a reason related to the disabled person’s disability, treats that person less favourably than he treats or would treat a person in relation to whom that reason does not apply and he cannot show that the treatment was justified; or
• An employer is under a duty to make reasonable adjustments as provided in the Act, and unjustifiably fails to comply with that duty.

In addition, if an arrangement made by or for an employer (or the physical features of the employer’s premises) place a disabled person at a substantial disadvantage compared to other people, then the employer must take reasonable steps to prevent the arrangements or physical feature from having that effect.

An “arrangement” is a job offer, or a term, condition or arrangement on which employment, promotion, transfers, training or other benefits are offered or provided.

A recent case decided by the House of Lords confirmed that, to some extent, employers are expected to take steps to help disabled people, so some measure of positive discrimination takes place (unlike sex or race discrimination). The duty to make reasonable adjustments could therefore include transferring a disabled employee to an existing post at a higher grade, without a requirement to compete at interview.

References:
Archibald v Fife Council