Changes to the disability discrimination law came into effect late last month. Among other things these removed ‘justification’ as a defence for failure to make a reasonable adjustment, and extends protections after termination of employment if discrimination or harassment arises out of, or is closely connected to, the employment. The same applies to post-termination victimisation. Those with the responsibility of giving references will need to be particularly careful.

As if these changes were not significant enough, there are more to come. A new Disability Discrimination Bill was published in December 2003. Following scrutiny by a Joint Committee of the House of Lords and House of Commons, the Government has accepted some recommendations for change and rejected others.

The most discussed likely change is an extension of the definition of disability to include people with the progressive conditions HIV, multiple sclerosis and cancer from the moment of diagnosis. This will be so even if there are no symptoms apparent at all. At present these conditions would not be covered at that stage.

The Government has carved out exceptions in the Bill: there will be a list of cancers (yet to be identified) which will not come within the extended coverage. The Government’s reasoning is that quick and effective treatment is currently available for a range of minor cancers which should not be considered disabilities.

Macmillan Cancer Relief gave evidence to the Joint Committee that individuals with cancer of all sorts have particular problems with accessing financial products, particularly travel insurance. Discrimination suffered was said not to depend on the nature of the cancer concerned. The Government refused to change its mind about this but said that how and when it will use the power to make regulations will be the subject of further public consultation.

The Government was asked but is also not willing to add immediately to the list of progressive conditions, although a power to do so by regulations will exist. The sorts of conditions that may be covered in the future include motor-neurone disease; rheumatoid arthritis; obstructive pulmonary disease and Huntingdon’s disease.

At present mental impairments are only protected by the law if they are ‘clinically well recognised’. This has caused a considerable debate in a number of cases. Guidance in the cases is to the effect that reference should be made to the World Health Organisation’s International classification of diseases. This sounded fine until it was realised that there were several WHO lists.

The Bill as initially published did not contain any proposal to change this law. The original intention had been to avoid the possibility of claims based on what William Hague MP, then Minister for Disabled People, called ‘obscure conditions unrecognised by reputable clinicians’ which courts and tribunals would find difficult to assess. Evidence given to the Joint Committee was that this restriction disadvantaged people who had genuine mental health conditions. The Joint Committee recommended that the requirement be removed. One of the reasons was that there should not be an extra burden for mental impairments that did not exist for physical impairments. The Government agreed and will add an amendment to the Bill.

Those relying on mental illnesses, like those with physical impairments, will still have to demonstrate a substantial and long term adverse affect on their ability to carry out normal day to day activities and tribunals will undoubtedly still require medical evidence. The overall effect of this change will, however, undoubtedly make it easier to bring a disability discrimination claim based on a mental illness.

The Joint Committee also suggested that the list of ‘normal day to day activities’ should have three additional categories. These were:
• ability to care for oneself;
• ability to communicate and interact with others; and
• perception of reality.

The law requires a disability to affect adversely one of the following: mobility; manual dexterity; physical coordination; continence; the ability to lift or move objects; speech, hearing or eyesight; memory or ability to concentrate, learn or understand; or the perception of the risk of physical danger. The Joint Committee heard much evidence that the list was inadequate. For example, it would not catch somebody intent on self harm who perceived the danger involved.

The Joint Committee also pointed out that in 1995 the Government of the day admitted that the existing categories created difficulties in the case of mental illness. It said at the time it would consider suggestions for change, but none were made. The present Government has also rejected the idea of any changes. It has relied on the fact that there is no complete list of day to day activities. It is simply that impairment of day to day activities has also to affect one of the capacities listed above. The Government says these are broad categories allowing a wide range of normal day to day activities to be covered in a way that avoids complexity or detail.

The evidence given to the Joint Committee seems to indicate that this contention is wrong; however simply being wrong rarely deters Government.

There are existing provisions applying to advertisements. The 1995 Disability Discrimination Act has an absurd provision which only comes into effect when somebody has already applied for employment, been refused that employment and has then brought a claim. From October any discriminatory advertisement in relation to a specific appointment or benefit will be unlawful. In addition the Bill makes newspapers and magazines which publish discriminatory advertisements liable. The Bill provides that publishers might have a defence if ignorant of the fact that the advertisement was prohibited or if they relied on a statement made by the people placing the advertisement that it was not unlawful, and it was reasonable to rely on that statement.

The Joint Committee pointed out that the Bill provided different standards in relation to advertisements from those that existed in the Race Relations Act and the Sex Discrimination Act. Those statutes only allow exemption from liability on one condition; if a publisher relied on a statement and it was reasonable for the publisher to rely on that statement.

The Government has agreed to remove the extra defence of ignorance. Any publisher which currently does not have adequate boiler plating in place now should seek advice.

The provisions in the 1995 Act relating to insurance were peculiar because they gave employees affected by group insurance a remedy which was identical to that to be provided in relation to goods and services well before the law relating to goods and services came into effect. Time having passed the provision is to be rationalised by doing away with this duplication and making it clear that providers of group insurance should be regarded in the same way as any other service provider. There is, however, concern in the insurance industry about the potential width of regulations that are to be made. The space needs watching.

These proposals will increase the volume of cases and very broadly make it easier to win certain categories of disability discrimination claim. The number of cases brought each year alleging disability discrimination has been increasing steadily and last year exceeded 5,600. There is every reason to expect that the changes in the law will accelerate the rate of increase in the number of claims.

Stephen Levinson can be contacted on 0207 872 8619.