Discrimination continued

It is unlawful for employers to discriminate against people who are disabled. I explained last week that the definition of when someone is disabled is virtually meaningless to most of us.

Under the Disability Discrimination Act someone is disabled if they have a physical or mental impairment which has a substantial and long term adverse effect on his or her ability to carry out normal day to day activities.

Such a definition does not help employees who have health problems and want to know if they have any legal protection under the disability laws or employers who want to know what they can and cannot do with workers who are unable to do their jobs properly.

Fortunately the Department for Education and Employment has issued a Guidance note to help establish when someone might be classified as disabled and protected by the law.

But before we look at this in detail you are not disabled if you are an alcoholic, addicted to smoking or drugs (unless medically prescribed), suffer from hayfever, have a tendency to start fires or steal, a tendency to physically or sexually abuse other persons or are either an exhibitionist or voyeur.

Back to the Guidance, if you have an impairment which has lasted for one year or is likely to last for one year you might be disabled. This means that if you break a leg or an arm which will normally heal within 12 months you are not disabled. On the other hand if you have rheumatoid arthritis which comes and goes but which is likely to recur beyond 12 months you may be disabled.

Someone off work with stress for a week or two or indeed a month or two with no previous history of depression would not normally be disabled, whereas someone suffering from long term depression such as a manic depressive probably is.

Any treatment you have which delays or prevents the impairment affecting your day to day life is ignored in deciding whether you are disabled. So an epileptic taking medicine which prevents attacks may well be disabled.

The impairment must have a substantial effect on at least one of the things people do on a daily basis such as walking, handling or carrying things, physical co-ordination, talking, seeing, hearing and continence.

So if your long term impairment makes it difficult for you to use steps or stairs or use public transport you may well be disabled according to the Guidance.

If you cannot use a knife and fork at the same time you would be protected by the Act. If you cannot thread a needle you would not.

If someone takes a long time to speak or cannot ask specific questions to clarify instructions they are probably disabled. Someone who has a minor lisp, stutter or speech impediment or who cannot speak in front of an audience is not.

Employers need to understand that someone who is not obviously disabled may be protected by these disability laws and yes you can discriminate even if you do not know the person is disabled.

Employees and potential employees, that is job applicants, need to know that generally speaking making your employer or potential employer aware of any problems that you face or may face at work gives you more security not less.

It is only right and proper that disabled people should have a fair crack at earning a living within the work place. Both employers and employees must bear in mind their responsibilities to act openly, honestly and fairly. The law does not mean that a disabled employee can never get the sack and neither does it mean that a disabled job applicant has to be given a job even if he or she is not the best candidate. What the law does try and do is to level the playing field to protect the disabled from prejudice and stereotypical assumptions. An employer who genuinely wants to act fairly has nothing to fear.

Published 27/09/2006.