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Disability Rights UK

Q: What counts as a disability according to the law?

Answer:

The Disability Discrimination Act (DDA) protects disabled people. The Act sets out the circumstances in which a person is "disabled". It says you are disabled if you have:

a. a mental or physical impairment
b. this has an adverse effect on your ability to carry out normal day-to-day activities
c. the adverse effect is substantial -the adverse effect is long-term (meaning it has lasted for 12 months, or is likely to last for more than 12 months or for the rest of your life).

There are some special provisions, for example:

a. if your disability has badly affected your ability to carry out normal day-to-day activities, but doesn't any more, it will still be counted as having that effect if it is likely to do so again
b. if you have a progressive condition such as HIV or multiple sclerosis or arthritis, and it will badly affect your ability to carry out normal day-to-day activities in the future, it will be treated as having a bad effect on you now c. past disabilities are covered.

What are "normal day-to-day activities"?

At least one of these areas must be badly affected:

a. mobility
b. manual dexterity
c. physical co-ordination
d. continence
e. ability to lift, carry or move everyday objects
f. speech, hearing or eyesight
g. memory or ability to concentrate, learn or understand
h. understanding of the risk of physical danger.

It's really important to think about the effect of your disability without treatment. The Act says that any treatment or correction should not be taken into account, including medical treatment or the use of a prosthesis or other aid (for example, a hearing aid). The only things which are taken into account are glasses or contact lenses. The important thing is to work out exactly how your disability affects you. Remember to concentrate on what you can't do, or find difficult, rather than what you can do. For example, if you have a hearing disability, being unable to hold a conversation with someone talking normally in a moderately noisy place would be a bad effect. Being unable to hold a conversation in a very noisy place such as a factory floor would not. If your disability affects your mobility, being unable to travel a short journey as a passenger in a vehicle would be a bad effect. So would only being able to walk slowly or with unsteady or jerky movements. But having difficulty walking without help for about 1.5 kilometres or a mile without having to stop would not.

What does not count as a disability?

Certain conditions are not considered impairments under the DDA:

a. lifestyle choices such as tattoos and non-medical piercings
b. tendency to steal, set fires, and physical or sexual abuse of others
c. exhibitionism and voyeurism
d. hayfever, if it doesn't aggravate the effects of an existing condition
e. addiction to or a dependency on alcohol, nicotine or any other substance, other than the substance being medically prescribed.

Q: What do you mean by 'reasonable adjustments' to premises?

Answer:


What is reasonable depends on a number of factors, in particular the size and resources of the organisation. If you own a corner shop the changes you are expected to make are different to those expected from a supermarket chain. Equally a village hall will have different requirements to the town hall or the banqueting suite in a large hotel. Installing a lift or new toilets may be inappropriate for a village hall or corner shop but an absolute necessity for the hotel or town hall. It is important that service providers who have not already done so take reasonable steps to make their services accessible. Failure to do so could lead to loss of reputation or even litigation.

Q: Can my employer force me to take medical retirement?

Full question: I have multiple sclerosis and have been absent from work on and off. Currently, I have been off sick for six weeks. My employer has informed me that if I have any more periods of absence upon my return to work, I will be forced to take medical retirement.

I have recently won an award for my exceptionally high standard of work and have been employed at my organisation for eight years. All of my absences have been related to my MS. Can my employer get away with this?

Answer:

You could be experiencing disability discrimination.
Your employer would need to consider making reasonable adjustments to their absence policy so that they do not take action against you for absences related to your disability.
If your employer is unable to make this type of adjustment, they would need to justify why. Their justification would need to be material to the circumstances of the particular case and substantial.
It would be advisable for you to write to your employer asking them to explain why they would be unable to accommodate further absences, and to advise them that they need to consider making reasonable adjustments.
Ask your employer to respond within seven days.
Employment

What are reasonable adjustments?

If you have a disability or a long-term health condition and you apply for a job or become a member of staff, the employer has a duty to make "reasonable adjustments" to employment practice and premises if these place you at a substantial disadvantage.

When and where can I expect reasonable adjustments?

During the recruitment process: for example, by enabling you to apply for a job in a variety of ways (by telephone, tape, email, letter or in person), and taking your specific needs into account during the interview or test (such as providing extra time).

In the terms and conditions of employment: by making changes (such as altering your working hours or getting equipment) to help you do the job to the best of your ability.

When is an adjustment considered reasonable?

There are no hard and fast rules, mainly because what might be a great help to you might not be for someone else. Knowing what will make it difficult for you to do your job, as well as how to resolve the problem, will enable you to negotiate for the best solutions both for yourself and your employer. However, the DDA does provide the employer with a number of criteria to test out whether a particular adjustment is reasonable. Examples of these are:

a. effectiveness in preventing disadvantage practicability
b. costs of the adjustment and the extent of any disruption
c. the extent of the employer's financial or other resources.

Are there examples of reasonable adjustments?

Many adjustments cost little or nothing and are often a matter of flexibility and developing a creative approach to working practice, such as, enabling you to work flexible hours, taking food breaks to manage diabetes, or allowing you to take time off to attend doctors' appointments.

Other adjustments might involve:

a. making changes to premises
getting or modifying equipment such as a CCTV if you have sight issues, voice-activated computer software, telephones adapted with an amplifier if you are hearing impaired
b. translating instructions and reference manuals into accessible formats, such as large print and audio cassette
c. providing a reader or sign language interpreter
giving feedback in particular way or allowing you to work in a private room if you work in an open plan office.

Is there any help available?

There are a number of schemes and government programmes which will help at no cost and can also assist financially. Information about these is available through your local Job Centre:

a. Access to Work: a scheme to help you and your employer work out what the issues and likely solutions are. They also give grants for making adjustments.
b. WORKSTEP: this programme for people with complex support needs, can give guidance to employers and staff in areas such as training, supervision and other support. They may also help financially with costs not covered by Access to Work.
c. There are a number of other organisations specialising for instance in job matching support, equipment related assessment, computer usage, work station support.

Further Details
Disability Rights Commission (DRC) Helpline
Free advice if you feel you have been treated unfairly
Post: DRC Helpline, Freepost MID 02164, Stratford-upon-Avon, CV37 9HY
Telephone 08457-622633 - Textphone 08457 622 644, Fax 08457 778 878
Website www.drc-gb.org
Open 8am to 8pm, Monday to Friday

Getting into work - my rights

The DDA makes it unlawful for an employer to discriminate against you because of your disability.

What are my employment rights under the DDA?

The employer has a duty to make "reasonable adjustments" to premises and working practices to ensure you are not at a substantial disadvantage compared to others. This covers:

o the recruitment process
o the terms and conditions of your employment

Your rights under the DDA also cover:

o your chances for promotion, transfer, training and benefits
o unfair treatment compared to other workers
o harassment and victimisation
o unfair dismissal

How can I convince a prospective employer that I am the right person for the job?

The key is to inform and prepare yourself:

o be clear about your skills, abilities and the work you want
o familiarise yourself with the recruitment process, the job description and the person specification
o demonstrate your competencies to your prospective employer
o be aware of what adjustments you need to do the job well - advice is available from the job centre and you may be able to arrange support from the Access to Work team
o help your employer to help you by suggesting adjustments
o remember that employers who use the "two tick symbol" have already thought about the best ways to employ disabled people and are likely to be flexible.

Is there any help available?

Disability Employment Advisors based in Job Centre and Jobcentre Plus offices can offer you a range of support, advice and information including:

o employment assessment - an in-depth interview to help you find out how your disability might affect your choice of work
o work preparation after a long period of unemployment
o job seeking as well as training advice and support
o advice and information on keeping your job
o information about the Job Introduction Scheme which pays a grant to your employer for your first few weeks in the job, giving both you and your employer the chance to try things out
o information on WORKSTEP which provides supported job opportunities to disabled people facing more complex employment barriers
o details on the New Deal for Disabled People - a voluntary programme delivered through a network of Job Brokers who support disabled people in their preparation, search and first six months of work
o information on Access to Work - a scheme which provides advice, practical and financial support to disabled people and their employers to help overcome work-related obstacles
o information on benefits that you may be entitled to.

Further Details

o Job Centre or Jobcentre Plus
For your nearest Job Centre look in the Yellow Pages under employment agencies, careers advice, training service or online at www.jobcentreplus.gov.uk
o New Deal for Disabled People (NDDP)
Telephone 0845 606 2626, Text 0845 606 0680
Website www.newdeal.gov.uk/newdeal.asp?DeallD+NDDIS

For a list of agencies involved with NDDP: www.jobbrokersearch.gov.uk

o Disability Rights Commission (DRC) Helpline Free advice if you feel you have been treated unfairly Post: DRC Helpline, Freepost MID 02164, Stratford-upon-Avon, CV37 9HY
Telephone 08457-622633 - Textphone 08457 622 644, Fax 08457 778 878
Website www.drc-gb.org
Open 8am to 8pm, Monday to Friday
There are factsheets on other topics available from the Helpline and comprehensive advice about work on the DRC's website. Discipline and dismissal

The Disability Discrimination Act 1995 (DDA) makes it unlawful for an employer to discriminate against you because of your disability or long-term health condition.

Can the DDA help me if I am faced with disciplinary action?

It is unlawful for your employer to take disciplinary action against you for poor performance or inappropriate conduct if your disability is in any way relevant. If your disability is not relevant, and your behaviour would not have been different if reasonable adjustments had been made, then disciplinary action is not likely to be discriminatory.

If you feel that the disciplinary action is unfair, and that with some or more adjustments the issues would not have arisen, you should:

o ask to discuss this with your manager
o make sure that they are fully aware of your disability or health condition and what might have caused the problems
o suggest they call in expert advice through a disability employment adviser, or Access to Work, a scheme developed to help you and your employer work out what the issues and likely solutions are.

Contact your local job centre (see below) for further information.

If it becomes clear that what caused the disciplinary action could have been prevented through an adjustment, the disciplinary process should be suspended immediately.

If your employer does not see your point of view, the Disability Rights Commission (DRC) helpline (see below) may be able to advise you.

Does my employer have to make reasonable adjustments during the disciplinary process?

Your employer has to treat you fairly and make reasonable adjustments, such as:

o giving you time to prepare for the proceedings
o making all communications available in a format accessible to you
o keeping you informed of what, and why the process, is happening
o providing a reader, qualified sign language interpreter, or advocate, if not having them would put you at a disadvantage.

When is it lawful for my employer to dismiss me?

If no further reasonable adjustments can be made, for you to perform better or behave in a more appropriate way, your employer has to consider moving you to a more suitable job as an alternative to dismissal. But, if redeployment is impossible because the business is small, for instance, dismissal is likely to be considered fair.

There are a few other circumstances in which your employer can terminate your contract:

o if you have been absent for a long time and there is no effective reasonable adjustment, or you are unlikely to return to work in the foreseeable future. It may however be appropriate to discuss the possibility of early ill-health retirement If you are part of a pension scheme, or if you have a private health insurance you may be able to make a claim
o if your disability or health condition creates a substantial risk to yourself or others, you can be dismissed on health and safety grounds. However, prior to dismissal your employer will have to show that they considered all other possible reasonable adjustments including redeployment.

Further Details

Disability Rights Commission (DRC) Helpline Free advice if you feel you have been treated unfairly Post: DRC Helpline, Freepost MID 02164, Stratford-upon-Avon, CV37 9HY
Telephone 08457-622633 - Textphone 08457 622 644, Fax 08457 778 878,
Website www.drc-gb.org
Open 8am to 8pm, Monday to Friday

adders.org 2005

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