Dr Gerard Panting discusses the impact of current legislation on recruitment and working conditions and its relevance for the NHS and employers in primary care
The Disability Discrimination Act is relevant to NHS GPs and their practice managers in a number of ways. With effect from 1st October 2004 Part III of the Act came into force. This introduced several requirements for GPs:
- as providers of services they must make physical adjustments to their premises so that disabled people can use them
- as employers they need to know about disability discrimination
- as doctors they may be called upon to provide evidence of disability in proceedings against a third party.
This article focuses on the duty of employers, but the principle can be translated across to the provision of GP services. The underlying principle is simple—disabled employees should not be treated less favourably than anyone else. Any difference in treatment must be justifiable for a specific reason.
The Disability Discrimination Act extends beyond existing employees, applying to all aspects of employment from recruitment to departure from post.1,2 The Act also covers training, pensions, and other employment benefits.1,2 According to the Department of Health, employment tribunals are now paying particular attention tothe employee selection process, and how individuals are treated at interview.3
The role of public authorities
The Disability Discrimination Act 20052 amends the original Act1 by placing further duties on public authorities. When carrying out their functions, public authorities must respect the need to:2
- eliminate discrimination that is unlawful under this Act
- eliminate harassment of disabled persons that is related to their disabilities
- promote equality of opportunity between disabled persons and other persons
- take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons
- promote positive attitudes towards disabled persons
- encourage participation by disabled persons in public life.
The term ‘public authority’ includes any person whose function is of a public nature, which would include the NHS and contractors providing services for the NHS, including GPs and primary healthcare professionals, but excludes:2
- both Houses of Parliament
- a person exercising functions in connection with proceedings in Parliament
- the Security Service, the Secret Intelligence Service, and the Government Communications Headquarters
- a unit, or part of a unit, or parts of the armed forces
- the Scottish Parliament
- a person, other than the Scottish Parliamentary Corporate Body, exercising functions in connection with proceedings in the Scottish Parliament.
The first step in implementing the Act is to understand exactly what is meant by ‘being disabled’. The definition in the Act is ‘a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.’ 1,2 As with many legal definitions, each of which is clarified individually as cases are decided in the courts, there is room for interpretation.
The disability must be substantial, which means that the impairment is neither minor nor trivial. However, this statement gives rise to a great deal of argument about what should count as substantial.
The disability must also be long-standing, which means that it already has, or is likely to last for 12 months or more.1 In addition to having a qualifying disability the person concerned must also experience difficulty in one or more of the following areas of daily activities:1
- manual dexterity
- physical co-ordination
- ability to lift or carry, or problems in moving objects
- speech, hearing, or eyesight
- memory or ability to concentrate, learn, or understand
- the perception of the risk of physical danger.
What is covered by disability discrimination?
Disability discrimination applies to both physical and mental disability, and includes:1
- any form of paralysis
- heart disease, whether acquired or congenital
- mental illness and learning disability
- HIV infection impacting upon normal activity
- multiple sclerosis, as well as other progressive conditions
- severe disfigurement.
Under the legislation, employers are required not to treat disabled employees, including job applicants, less favourably than anyone else. If disabled individuals are treated differently from other employees, employers must be able to justify their actions, giving specific reasons.
Employers should make reasonable adjustments to any aspect of the organisation that places a disabled employee at a significant disadvantage.
Adjustments to the work environment
Examples of reasonable adjustments that might be made to assist employment of someone with a disability include:
- providing Braille format documents to visually impaired employees who require access to written information
- installing an access ramp
- amending the job description to remove duties that may not be manageable and replacing them with more suitable tasks.
If an adjustment to the work environment is to be made, it is more likely to be reasonable if there is money available to help pay for it. This money may come from external grants. The Government operates an ‘Access To Work Scheme’ under which a Disability Employment Adviser (DEA) can make workplace assessments and suggest reasonable adjustments.4
However, if the adjustment is not deemed to be reasonable, then the employer may decline to make the change. How do you judge how reasonable something is? The criteria to be applied are:1,4
- if making the change, how effective would it be in removing the disadvantage?—if it does not solve the problem, there is no point in doing it
- how practical will it be to make the adjustment?—again if it creates more problems than it solves, it is hardly a solution
- the cost—taking into account the availability of grants and other outside help
- the disruption it may cause to the workplace.
In deciding what adjustments would be helpful, the first person to ask is the disabled person. If outside help is required, it is available from the DEA who is contactable through the local JobCentre Plus. It may also be worth contacting specialist disability organisations or commercial advisers.4
The Disability Discrimination Act makes it unlawful for employers to harass their employees about their disability. This includes:
- being intimidating, hostile, degrading, or humiliating
- displaying offensive behaviour towards employees or creating or allowing a culture where these sorts of behaviours thrive
- being unreasonable about allowing a disabled employee time off for outpatient appointments or sick leave by suggesting that the time away from work is excessive or unnecessary
- implying that an individual is ‘milking’ their disability.
Aggrieved employees can seek redress through the employment tribunal. However, it is sensible to try to settle the dispute less formally by using an in-house grievance procedure or, if necessary, using an external arbitration service.
Costs of discrimination cases
The number of disability discrimination cases brought to employment tribunals has steadily increased over recent years from 4942 cases in 2004/2005 to 5533 in 2006/2007. The compensation awarded in successful claims ranges from under £500 to £138,648, with an average compensation value of £15,059.5 As with any legal case, the compensation can pale into insignificance when compared with the legal costs and inconvenience that are associated with legal proceedings. It, therefore, pays to avoid actions that might be misinterpreted as discrimination of any sort.
- Department of Health. Mental health and employment in the NHS. London: DH, 2002.
- Employment Tribunals. Employment Tribunal and EAT Statistics (GB): 1 April 2006 to 31 March 2007. www.employmenttribunals.gov.uk/G