Disability discrimination in employment – new amending regulations in force on 1 October 2004

United Kingdom

On 1 October 2004, the Disability Discrimination Act 1995 (Amendment) Regulations 2003 (the "Amending Regulations") come into force, introducing a number of changes to the Disability Discrimination Act 1995 (the "DDA"). The changes are required, in part, as a result of the implementation of a European Directive (2000/78/EC) on discrimination in employment covering a variety of grounds, including disability (the "Directive").

The main changes introduced by the Amending Regulations in an employment context will be:

  • a new definition of 'discrimination' (in addition to the existing one). This makes it clear that an employer cannot treat an individual less favourably where that treatment is based on the fact that they have a disability, rather than on a consideration of their abilities (what the Directive describes as 'direct discrimination');
  • the extension of the duty to make 'reasonable adjustments' (other than adjustments to the physical features of premises) to cover provisions, criteria and practices applied by employers. This is designed to achieve consistency with the definition of 'indirect discrimination' under existing sex and race discrimination legislation;
  • the removal of the justification defence for a failure to make 'reasonable adjustments', except in situations where an employer does not know, and could not reasonably be expected to know, that a particular employee is disabled;
  • the introduction of the statutory offence of 'harassment' in a disability context;
  • the extension of protection against discrimination (including harassment) on the grounds of an individual's disability beyond the end of the employment relationship in certain circumstances;
  • the removal of the current exemption within the DDA for employers with fewer than 15 employees, so that its provisions will apply to all employers (other than the armed forces), irrespective of their size;
  • the extension of the scope of the DDA to cover categories of employment (including the fire service, police force, prison service and those employed on ships, hovercraft or airplanes) and categories of relationship (including partnerships, barristers/advocates and pupils, qualifications bodies and relationships arising from periods of practical work experience) currently excluded from its terms;
  • the establishment of an 8 week time limit for employers to respond to questionnaires produced under the DDA, to replace the current requirement to reply within a "reasonable period"; and
  • the reversal of the burden of proof in employment tribunal proceedings so that, once a complainant has established facts from which discrimination could be inferred, it will be for the employer to prove that it has not discriminated against them unlawfully.

The Disability Rights Commission has published Codes of Practice to accompany the Amending Regulations (the "Codes of Practice"). These will come into force at the same time as the Amending Regulations and will replace the current disability Codes of Practice issued under the DDA. In this regard, please see our earlier Law-Now entitled 'Disability discrimination- Consultation on new codes of practice'. The Codes of Practice, like the ACAS and Data Protection codes, will not be legally binding. However, they will give practical guidance on how to interpret the law and prevent discrimination against disabled people and will be taken into account by courts and employment tribunals, where relevant.

Click here for the Amending Regulations and the Codes of Practice are available by clicking here.

If you require any further advice on disability discrimination issues and the likely impact on your business of the changes set out above, please contact Simon Jeffreys at [email protected] or on +44 (0)20 7367 3421 or Anthony Fincham at [email protected] or on +44 (0)20 7367 2783 or Alex Green at [email protected] or on +44 (0)1224 621764