Changes to the Disability Discrimination Act mean big changes for employers, regardless of the size of the organisation. We advise on the implications.
Anti-disability discrimination law is getting more teeth so that it will have greater impact on more businesses. The changes to the Disability Discrimination Act will take effect from October 2004.

One key area in the adjusted act is for employers. And here it is not just employees who are protected, but also anyone with a contract to personally work for a business. Therefore, it covers subcontractors who are self-employed individuals. It also covers agency staff supplied to businesses. The main employment changes are in the following areas:

  • All employers will be covered by the Act – at present only those with at least 15 workers need to comply with it.

  • Tightening up on when employers can unlawfully treat their disabled staff less favourably. It will be unlawful to treat staff less well simply because they are disabled. But it will be possible to treat a disabled employee less favourably because particular characteristics of their condition have a material impact on their work – as long as the company can justify such treatment.

It is also worth noting that partners who own partnerships will be covered by the Act and also those doing practical work experience, even if it is unpaid.

And there are more changes planned for disability protection. Workers suffering from HIV or cancer will be deemed to be "disabled" from when they are first diagnosed. Employment Tribunals will be given the power to order companies to reinstate disabled people who have been unlawfully dismissed because of their condition. The legal definition of a 'disabled person' extends to far more than someone who is blind or in a wheelchair. It covers anyone with a physical or mental impairment which lasts for more than 12 months and has an impact on their ability to undertake normal day to day activities – that definition covers an awful lot of people.

Employers are under an obligation to make reasonable adjustments to accommodate their employees' disabilities. For example, by changing hours of work, relieving them of certain duties, or making physical changes to their environment. This obligation is triggered by having a disabled employee – the individual does not have to raise the issue with you.

Compensation for disability discrimination is unlimited. The employment tribunal can make an award to cover any income lost as a result of the discrimination.

Compensation for disability discrimination is unlimited. The Employment Tribunal can make an award to cover any income lost as a result of the discrimination eg lost wages because of failure to employ or promote or because of a dismissal. It can also award compensation for the injury caused to the disabled person's feelings by the discriminatory treatment

From October 2004, all businesses which provide a service to the public will also face new duties to make reasonable adjustments to avoid discrimination against disabled persons using their services. This will have a significant affect on businesses in those sectors dealing direct with the public on their premises eg retail, leisure, estate agency, healthcare.

This will evidently impact on the construction sector as businesses urgently review what alterations they may need to make to their premises, not only to fulfil their duties to employees, but also their new duty to accommodate disabled service users.

Physical adjustments to premises to accommodate disabled users may not necessarily be required. Adjusting business practice or re-configuring layout of the working areas may be all that is required. If physical changes are required, proper planning is key, especially where the premises are leasehold. Business leases commonly impose strict controls on alterations

Companies who want to make alterations have the right to apply for landlord's consent. Once an application is made, landlords have a duty not to unreasonably withhold their approval. The same duty applies to superior landlords if the building is occupied under a sub-lease.

Key issues when applying for landlords’ consent to make alterations

  • Identify which alterations need landlord’s approval under the terms of the lease – minor changes may not be caught at all.

  • Give landlords all relevant information when making the application. Unless landlords get this, the timetable can be extended.

  • Tenants should read the lease first to understand exactly how restrictive the lease terms are

  • Check that the proposed works relate to the leased areas – in a shared building, access ways, stairs, lifts etc may all fall outside the tenant’s control. The tenant will usually have no right to carry out alterations to such areas.

  • Know what other consents are needed eg Building Regulations, listed building consent.

  • Ensure that the proposed works do not threaten the insurance arrangements for the building, eg by making use of fire exits more difficult.

  • Recognise that the tenant will have to pay the landlord’s legal and surveyors fees - commonly in excess of £1000 for each approval.

Source

Building Sustainable Design

Postscript

Derek Ching and Jill Kelly are partners at Clarks. For property issues, contact dching@clarkslegal.com. For staff issues, contact jkelly@clarkslegal.com. Or see www.clarkslegal.com.