The Disability Discrimination Act and the Equality Act

Whereas legislation to protect against discrimination in employment on the basis of gender or race was introduced in the 1970s, people with a disability were first protected by the Disability Discrimination Act 1995 (DDA).

The act was the product of a long and hard-fought struggle for civil rights for people with disabilities. Nonetheless, many campaigners were very dissatisfied with it, finding that the rights and remedies it afforded were quite restrictive. Moreover, initially there was no strategic enforcement body, but this was remedied with the creation of the Disability Rights Commission in 2000 and its replacement with the Equalities and Human Rights Commission in 2007.

In the original legislation, people with HIV were only protected if they were symptomatic (i.e. had advanced HIV infection). However, the law was extended by the Disability Discrimination Act 2005, which included the provision that all people with HIV, cancer and multiple sclerosis were considered to be disabled from the moment they were diagnosed.

In an attempt to consolidate and harmonise the numerous pieces of anti-discrimination legislation (concerning disability, race, sex, age, religion, sexual orientation, gender reassignment, marriage, civil partnership, pregnancy, maternity, religion and belief), the Equality Act (EA) was passed in 2010. This legislation will supersede the Disability Discrimination Act, with most measures expected to come into force from October 2010.

In many instances, the new law will transfer the same rights and protections from the DDA to the EA, often using the same terminology. However, in a few areas, the law has been modified.

In this chapter, where we talk about anti-discrimination legislation, the legislation or the law this refers to either the DDA 2005 or the EA 2010, because the same right can be found in both.

As with other legislation, the way in which courts have interpreted the legislation in the past sets an important precedent. This is known as case law. In the case of the EA, the case law that has been generated from the DDA and other anti-discrimination legislation will be used to guide future decisions under the EA.

The Equality Act 2010 only applies in England, Wales and Scotland. In Northern Ireland, anti-discrimination legislation is found in several different laws, including the Disability Discrimination Act 1995 (as amended, including a number of amendments specific to Northern Ireland).

As well as giving protection in employment, the legislation also protects against discrimination in education, access to goods, facilities and services, and buying or renting land or property. These issues are covered in a separate chapter.

Under the legislation, all people with diagnosed HIV are considered to be ‘disabled’, although this is probably not a term that many people with HIV would otherwise identify with.

Being considered disabled gives people with HIV protection against discrimination in many aspects of employment, including the recruitment process. The legislation covers less favourable treatment:

• when applying for a job

• in the terms on which employment is offered

• in opportunities for training, promotion or other benefits

• in the way an employee is treated by the employer and colleagues

• in being dismissed or selected for redundancy

• after leaving the job, for example when requesting a reference or dealing with the company pension fund.

An employer can be held responsible not just for the discriminatory actions of the management or of the company itself, but also for the behaviour of other employees. For example if an HIV-positive employee suffers harassment from his or her colleagues, and the employer cannot show that they took steps to try and prevent such action occurring, then the employer can be held responsible.

Probably the most important aspect of the legislation is the right to request reasonable adjustments. If there is a way of working or an aspect of the workplace which puts a disabled worker at a disadvantage, the employer must make all adjustments which are reasonable to remove that disadvantage. Basically this means that employers must take reasonable steps so that the disabled worker can carry out his or her job without disadvantage.

The employer must normally be aware of the employee’s disability before they are expected to make reasonable adjustments.

A few examples of reasonable adjustments are:

• making a workplace accessible to a worker who uses a wheelchair

• allowing a worker who is often tired in the morning to start work later

• providing a screen-reader that will allow a worker with visual impairment to use a computer.

For people with HIV, the most commonly requested adjustments tend to be time off for clinic appointments, changes in hours worked and changes to start/finish times.¹

The Disability Rights Commission (DRC, 1999 to 2007) and the Equality and Human Rights Commission (EHRC, 2007 onwards) were set up by Parliament to protect, enforce and promote equality. The EHRC has extensive legal powers, including powers to conduct formal investigations and to take judicial reviews.

Moreover, codes of practice produced by these bodies must be taken into account by courts and employment tribunals as evidence of good practice. The Disability Rights Commission’s Code of Practice on Employment and Occupation deals with the kind of adjustments which employers should make to their workplace and when discrimination may be justified.² This will be superseded by the Equalities and Human Rights Commission’s Employment Statutory  Code of Practice, but at the time of writing this has only been published in draft form.