UK Disability History Month runs from 16 November to 16 December this year, and here Avril England takes a look at how awareness and support for disabilities in the workplace has developed over the years.
The history and development of disability discrimination laws
The Disability Discrimination Act 1995 (DDA), which received Royal Assent on 8 November 1995, introduced protection against discrimination on the grounds of disability into the law for the first time. Up until that point all that existed was a quota system governed by the provisions of the Disabled Persons (Employment) Act 1944. This had required employers with 20 or more employees to ensure that at least 3% of their workforce were registered as disabled, a requirement which in practice had been generally ignored by the vast majority.
The DDA introduced a new duty for employers to make reasonable adjustments and specifically prohibited ‘disability-related’ discrimination, a special form of indirect discrimination. It also made it unlawful to victimise a worker for raising issues relating to disability.
Definition of disability
The protection from discrimination was to be based on the definition of ‘disability’ which was defined as being where the condition constituted a physical or mental impairment that had a substantial adverse effect on the person’s ability to carry out normal day-to-day activities.
There was the additional requirement that the condition be long term in nature meaning that it would need to be shown that it had lasted a year or was likely to last that period or for the rest of the person’s life.
Subsequent amendments to the DDA added other forms of discrimination and ensured that people diagnosed with conditions such as HIV, multiple sclerosis and cancer were protected regardless of whether they satisfied the statutory definition of ‘disability’, and the requirement that a mental impairment had to be ‘clinically well-recognised’ was removed.
Equality Act 2010
From 1 October 2010 the DDA was replaced with the Equality Act 2010 (except for in Northern Ireland).
While protection against discrimination under the Equality Act 2010 ensured that there was a more uniform approach taken in respect of the specified nine ‘protected characteristics’ which included disability, it was still the case that some forms of discrimination remained unique to disability.
There was protection against direct and indirect discrimination, harassment and victimisation in line with the other protected characteristics, while the duty to make reasonable adjustments was retained.
In addition, discrimination caused by ‘unfavourable treatment arising from disability’ was introduced and replaced ‘disability-related discrimination’ which had previously been the subject of much criticism as it had been so narrowly construed in the courts.
Under the Equality Act 2010, the prohibition against direct discrimination and harassment in relation to protected characteristics was also expressed in terms which were wide enough to extend protection to claimants who had an association with a disabled person and also those perceived to be disabled even if they were not.
Importantly, this meant that those with disabled family members or who were carers could bring claims for discrimination if treated less favourably or harassed because of their association and a technical finding that an applicant or worker was not disabled would not defeat a claim if the employer had treated them in a certain way because they believed that they were disabled.
In recent years statistics from the Office for National Statistics (ONS) have shown more people are reporting a long-term health condition or disability and that this is being largely driven by an increase in the recognition of mental health conditions.
Attention deficit hyperactivity disorder (ADHD), autism, dyslexia and dyspraxia are forms of neurodivergence – which can often amount to a disability under the Equality Act 2010, even if the person does not consider themselves to be disabled.
It’s currently estimated that one in five of the working-age population, or 7.7 million people, are classed as disabled or have a health condition, so it’s highly likely that there will be someone in nearly every workplace that will benefit from the protection against disability discrimination today.